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The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, the noble Lord, Lord Shinkwin, will be taking part remotely. I remind the Committee that, unless they are leading a group, remote speakers speak first after the mover of the lead amendment in the group and may therefore speak to other amendments in a group ahead of the Members who have tabled them.
Clause 1: Assisted dying
Amendment 25
Lord Carlile of Berriew
“(e) has had their application for assistance under section (Application for assistance with suicide order) approved by the Court,”
Lord Carlile of Berriew (CB)
My Lords, I welcome what the noble and learned Lord has just said, which I am sure will be welcome to most Members of the Committee.
Amendment 25 stands in my name and those of my noble friend Lady Hollins and my noble and right reverend friend Lord Harries of Pentregarth. As is obvious, Amendment 25 is part of a large group. I apologise for the number of amendments and clause stand part notices in my name in the group. I was given excellent help by the Public Bill Office, and many of those amendments and clause stand part notices are simply designed to fit my proposals into the architecture of the Bill as it arrived in your Lordships’ House from the other place.
Amendment 25 is entirely dependent on Amendment 120, which is the key amendment in this group. That is also supported by my noble friends Lady Hollins and Lady O’Loan and my noble and right reverend friend Lord Harries of Pentregarth. I suggest that they are a formidable Cross-Bench group of medicine, the Church and the law, to which all will wish to pay close attention.
Amendment 120 sets out a matter of some principle which, if not conceded by the promoters, will have to be determined on Report. The conclusion on Amendment 120 reached on Report may well affect how some noble Lords will vote if there is a vote at Third Reading, because Amendment 120 is all about the safety of the proposed legislation.
Early in my remarks, I want to mention a very important point that may shorten the debate on this group. The promoters have rightly enjoyed assistance from neutral officials, including parliamentary counsel, in the drafting and structure of their revised proposals. Before we reach Report, or shortly after if successful with the principle I am raising, I am sure that those of us who support these amendments will receive and welcome comparable access. I invite the Minister to confirm that there would be equality of arms in perfecting the proposed clauses and amendments.
The issue of principle is whether permission for assisted suicide should be given by the court or via a panel. The promoters’ original intention was very clear: it was to be a court-based process. But by amendment they moved their choice to the panel procedure that currently appears in the Bill. I believe that they had two main reasons. First, the courts may not have enough judges to deal with the volume of applications they expect. The court in question at that stage was simply the High Court of Justice Family Division. Secondly, it might prove more difficult to obtain permission from a court than from the panel as now described.
As to the judges, Amendment 120 offers a simple and sound solution that I am surprised had not been thought of before. It would broaden the range of judiciary who would be designated to reach these momentous decisions, which involve the deliberate participation of one individual in bringing about the death of another. That a judge should be involved is, I suggest, self-evidently appropriate and what we should expect, given that third-party participation in a death would otherwise involve the offence of murder. I remind your Lordships that murder is defined as being involved in bringing about the death of another with the intent to kill or do grievous bodily harm.
Decisions about whether life support should be switched off are regularly heard by judges of the Family Division of the High Court, as are other extremely important decisions concerning family life, including matters affecting contact between parents and their children. There are, however, only 20 High Court judges in the Family Division, including the president. But, around the country, there are more than 40 designated family judges: specialist circuit judges who deal with the most difficult and important cases. By adding those 40-plus designated judges into the cohort of judges who would decide cases envisaged by this Bill—they were not envisaged as part of the process originally—there would, I suggest, be an ample supply of skilled and diverse expert judiciary, who would provide confidence-inspiring judgment in this important and difficult new area of the law.
The training of judges is very important in this context. The Judicial College provides expert training for all judges, including in specialist jurisdictions. There are those in this Chamber who have acted both as students and tutors in the work of the Judicial College. I add that there is a cohort of recorders, who are part-time judges, who could fill any listing gaps caused by this new jurisdiction.
As to the second objection—that it might prove more difficult to obtain permission from a court than from a panel—I suggest four cardinal points. First, it should not be easy to permit third-party involvement in someone’s death—nor should it be impossible, which is not the aim of these amendments. These amendments are predicated on the assumption that assisted suicide becomes lawful. It should be the subject of a procedure proportionate to the great legal change involved. In some cases, that may make an application more challenging, but those are exactly the cases in need of increased scrutiny and protection.
Secondly, where do we expect difficult issues of this level of seriousness and complexity to be tested and adjudicated upon? Generally, the answer is: in the courts, of course. There is no comparable precedent in which a matter affecting life and death is handed to a panel, even one chaired by a senior or retired lawyer. There are good reasons for that expectation. The court has special powers, which include, importantly, ordering the disclosure of documents, such as relevant correspondence and medical records, and the power to examine in a balanced way the arguments and evidence of both sides of a question, and to make a reasoned decision about what evidence to accept or reject. An example of such an issue might be whether, for example, an applicant is ordinarily resident in England and Wales or the UK—not necessarily an easy question to answer.
The court procedure allows the intervention of what are called interested parties—close relatives, for example, between whom there may be important and relevant issues—if the court regards the interventions as of potential value. Every day of the week, courts consider whether interveners should be allowed in a particular case, on the merits. Another thing that courts do is produce reasoned judgments in which clear findings of fact and law are set out. This is part of the everyday work of judges in every court around the country.
My third cardinal point is the appeal process. An appeal process is well understood and would be available through the courts. The court has a very good reputation for efficiency and prompt action in cases that clearly require it. Where real urgency is required, the courts respond, in a familiar jurisdiction that does not have to be designed from scratch and commands as much public confidence as any process that we have in our polity in this country.
My fourth cardinal point is that courts are familiar with the concept of individual capacity, with hearing and deciding upon expert evidence, and—above all in this context—with dealing with allegations of undue influence. The greatest worry I have about this new jurisdiction is that undue influence, often financially motivated, may feature heavily in some cases. There is some evidence—from Canada, for example—that that has been a real issue in a significant number of cases. Rooting out undue influence after the event offers absolutely nothing in this jurisdiction because the individual whose life is being discussed will already be dead.
The experience of judges, honed in practice in which, from time to time, they all encounter examples of the most egregious and devious behaviour, together with the forensic nature of the court process, promises a reasonable prospect of fair and proper decision-making. It may be of interest to note that, yesterday, we welcomed into our House a new Member—the noble Lord, Lord John—who has spent his legal practice dealing with just that issue of undue influence as a distinguished probate lawyer. That is just an example of the way in which lawyers and the courts deal with these issues. In addition, the recruitment of judges is statutory, well tested and very successful. The recruitment process suggested for the panels has none of those known qualities. Indeed, it is an unknown quantity.
I promise your Lordships that I do not propose these amendments in a way that is intended to undermine the Bill. My aim is based on the presumption that a Bill of this kind will be passed. My amendments are intended to make it safe—an aspiration I know is shared by the noble and learned Lord, Lord Falconer. Confidence in his proposals would be greatly increased by his acceptance of the principles behind these amendments. I beg to move.
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, the noble Lord, Lord Shinkwin, is taking part remotely. I invite him to speak.
Lord Shinkwin (Con) [V]
My Lords, I will speak to Amendment 120 and the amendments consequential to it. I should explain at the outset that my remarks incorporate the concerns of my noble friend Lord Farmer, who regrets that he is unable to be here. We are both worried, as I know are many other noble Lords, about current capacity and other pressures on the family courts. We are particularly concerned that these amendments would increase capacity pressures still further by placing decision-making and sign-off for applications for assisted dying orders into the Family Division of the High Court.
The noble Lord, Lord Carlile, mentioned safety. Notwithstanding his reference to 40-plus circuit judges and a cohort of recorders, I fear that what is before us is a recipe for overwhelming a system that already shows grave signs of being overloaded. Noble Lords will know that, for some considerable time, my noble friend Lord Farmer has been pressing this and previous Governments to cite early legal advice and support in family hubs when families separate, to ease pressure precisely because of existing capacity issues.
Moreover, the National Audit Office recently said of the family justice system:
“The government … does not have an overall assessment of the main drivers of delays or the capacity required to manage the system efficiently and reduce delay. MoJ, DfE and others have carried out several reviews … to identify causes of delay in family justice, identifying more than 25 different contributing factors … but most of the reviews could not quantify the scale and impact of each issue on overall performance, or the resources required to deal with these causes efficiently, due to data limitations”.
Baroness Hollins (CB)
My Lords, I have added my name to several of my noble friend’s amendments and I would like to congratulate him on finding a solution that could allow the Bill to meet one of the sponsors’ original aspirations. The impact of Amendments 25 and 120 are many. One that may be attractive to the Committee would be that it would considerably shorten the Bill, as several clauses would be removed and hours of debate would probably become unnecessary.
The Bill states that it will
“allow adults who are terminally ill … to request and be provided with assistance to end their own life”
and refers to eligibility for
“lawful assistance to voluntarily end their own life”.
The Oxford Concise Medical Dictionary defines suicide as
“deliberately causing one’s own death”
and assisting suicide as
“the act of helping a patient to commit suicide by giving them the means … to do so”.
The Office for National Statistics similarly defines suicides as
“deaths resulting from intentional self-harm for persons aged 10 and over”.
Clause 32 on the criminal liability for providing assistance explicitly references the Suicide Act 1961, providing that assistance carried out in accordance with this Bill will be exempt from that Act’s offence of assisting suicide. This reinforces that the subject of the legislation under consideration is assisted suicide.
I am aware that many people would prefer the term “assisted dying” because of the stigma associated with the term “suicide”. The Bill rather contradicts itself by adopting the term “assisted dying” while attempting to modify these other statutory provisions that concern assisted suicide. That creates both conceptual and legal ambiguity. If Parliament is being asked to authorise assisted suicide, then it follows that such decisions fall within the proper domain of the courts. For that reason, among others, I support my noble Lord, Lord Carlile’s amendment that would replace the assisted dying review panel with a court-supervised process.
Amendment 120 appropriately moves decision-making from the medical to the legal sphere. Assisted dying is not a medical treatment; it is an act with profound societal implications, and it therefore requires, I suggest, judicial rather than clinical oversight. For that reason, I believe that it does not belong in the National Health Service. Under the proposed model, doctors would continue to provide expert medical evidence confirming diagnosis and prognosis, but the final authorisation would rest with a judge. That judicial scrutiny provides a stronger safeguard against errors, and enhances transparency and public confidence in the system by placing responsibility for these irreversible decisions in the courts, where I believe they properly belong.
Concerns about capacity in the courts, or potential delay and cost, do not outweigh the need for robust safeguards when decisions of life and death are involved. The appropriate response is to streamline court processes, not to lower the level of scrutiny. The same issues of capacity in taking on a new stream of work would, of course, apply in the NHS. A judge would provide a more independent assessment of an individual application than a panel, which is likely to comprise people who have chosen to do that work and have no track record of dealing with issues such as undue influence. It is regrettable that the other place abandoned judicial oversight in favour of an assisted dying review panel and commissioner, thus seriously weakening the safeguards that were originally envisaged. The assisted dying review panel is not, in its current form, fit for purpose. Its composition does not provide sufficient safeguards for vulnerable individuals, and there is insufficient clarity on how it includes expertise in palliative care, safeguarding and decision-making capacity. A court model would be preferable; without it, the panel would need to be substantially strengthened.
I also strongly believe that, without guaranteed access to a comprehensive multi-disciplinary specialist assessment of palliative, psychological and social care needs, neither judicial scrutiny nor an expert panel would be able reliably to identify inappropriate requests for an assisted death. Those preliminary assessments are the most essential safeguards to ensure that treatable sources of distress, or modifiable psychosocial factors, are considered before an informed decision can be made, both by the individual concerned and by the decision-makers. We will debate specialist multi-disciplinary assessments in the next group of amendments, and I look forward to returning to that.
I also support the amendments tabled by my noble friend Lord Carlile that seek to broaden the scope of safeguards referred to in Clause 1. At present, the Bill limits those safeguards to Clauses 8 to 30, which cover only the procedural steps. My noble friend’s amendments would extend the safeguard requirements to the whole of the Bill, ensuring that every substantive provision—not just the procedural elements—must be complied with before assistance to die can be lawfully provided.
I also support my noble friend’s Amendment 69 to strengthen the definition of “a terminal illness”. The amendment clarifies that a terminal illness must be
“an inevitably progressive disease which cannot be halted”.
The inclusion of “halted” is important; it ensures that eligibility is limited to conditions for which the disease trajectory cannot be stabilised or slowed through available interventions.
Baroness Berridge (Con)
My Lords, I will speak briefly to two of the amendments in this group. I am grateful to the noble Lord, Lord Carlile, for meeting me in relation to his proposals under Amendment 120.
This group also contains related Amendment 116, which would introduce the capacity test that the noble Lord expects the court to use. Within that amendment, in the clear and settled intention part of that capacity test, is the introduction of the phrase “undue influence or coercion”. That test is different from the rest of the Bill, which uses “dishonesty, coercion or pressure”. I am sure that the noble Lord is aware, as he has outlined, that undue influence has a particular meaning in civil law and is presumed within certain relationships.
Lord Pannick (CB)
My Lords, the noble Lord, Lord Carlile, made a very powerful case, if I may say so, for judicial control to provide the independent scrutiny that we all agree is required in some form to ensure that the criteria of the Bill are satisfied in individual cases. However, I offer a contrasting view. Although I have the greatest of admiration for His Majesty’s judges—some of my best friends are judges—I do not think that they are the only people, or indeed the best people, to decide alone the grave issues that we all agree are raised by this Bill.
I say in response to the noble Lord, Lord Carlile, that the Committee should bear in mind what the Bill actually provides for in Schedule 2: before anyone is able to take advantage of its provisions, they must satisfy the panel that the criteria in the Bill are met. Who is on the panel? It is not simply a judge; it is a panel of three people who have a range of expertise that is, in my view, highly desirable in this sensitive context.
First, you need a legal member. It is right that there should be a legal member, because some of the issues are very much legal issues and judges have particular expertise. The legal member must either hold or have held high judicial office as a judge of the Supreme Court or the Court of Appeal; as a judge or deputy judge of the High Court; or as one of His Majesty’s counsel. They may also have been requested to act as a judge of the Court of Appeal or the High Court. So you need a legal member.
However, you also have on the panel a psychiatrist member; that is highly desirable in this sensitive context. You have a registered medical practitioner who is a practising psychiatrist, registered in one of the psychiatrist specialisms in the specialist register, sitting alongside the legal member. Then you have someone who is registered as a social worker to add their perspective on the difficult issues—these are difficult issues—raised by eligibility under this Bill. So you have three people and a range of expertise—
Baroness Coffey (Con)
I am interested in the noble Lord’s view of the panel. I appreciate that he is discussing Schedule 2, but there are parts of this Bill where a unanimous decision of that panel is not needed, so it is quite possible that the medical person could be overruled by the others.
Lord Pannick (CB)
With great respect, that is not my understanding. The next point I was going to make is that paragraph 5(3) of Schedule 2 answers the very point just made by the noble Baroness. It 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, or … abstains from voting on such a decision”.
The noble and learned Lord, Lord Falconer, will say if I am wrong, but my understanding is that, with great respect, the noble Baroness is wrong. The unanimous view of all three members of this panel is needed before the provisions of this Bill are operative.
Baroness Coffey (Con)
May I probe the noble Lord a little further? In the evidence given by witnesses to the Select Committee, it was said that somebody should not be allowed simply to abstain; and that, if these people are being appointed as professionals to these panels, they should express a view. At the moment, expressing no view is deemed to mean being in favour.
Lord Pannick (CB)
I am sorry but, with the greatest respect, the noble Baroness has not listened or read what is in the Bill. If any of the three members is unwise enough to abstain—I agree that it is highly undesirable that they should—because they are not satisfied that the case is made out, eligibility is not satisfied and, therefore, the person concerned cannot take advantage of the provisions of this Bill. Again, if the noble and learned Lord, Lord Falconer, thinks that I have misunderstood this, he will say so, but he is nodding. The noble Baroness really needs to read the Bill.
Lord Pannick (CB)
If the noble Baroness reads the Bill, her concern will be addressed.
Then we need to look at paragraph 8 of Schedule 2, which tells the commissioner that he or she
“may give guidance about … practice and procedure”.
I would be very surprised if the practice and procedure did not allow for interested parties to be heard or provide—this is another point made by the noble Lord, Lord Carlile—documents to be requested. If they were not requested and a person did not supply relevant documents, I would expect one of the three members of the panel not to be satisfied.
Lord Carlile of Berriew (CB)
I am very grateful to the noble Lord. If he just looks again at paragraph 5 of Schedule 2, it may be that there is a wholesale ambiguity. Sub-paragraph (2) says:
“Decisions of a panel may be taken by a majority vote; but this is subject to sub-paragraph (3)”,
which the noble Lord has read out. Do those two paragraphs contradict one another?
Lord Pannick (CB)
No, they do not, because the majority vote does not apply to the question of whether a certificate of eligibility applies. There may be a majority vote on other issues; for example, whether to have a hearing or to require documents, or something of that sort. But on the fundamental issue—the noble Lord is shaking his head, but that is what it says—a majority vote is not permitted on the crucial, core issue of whether a certificate of eligibility is required.
Paragraph 9 addresses another of the concerns the noble Lord, Lord Carlile, has mentioned. It says, in paragraph 9(1), that panels must—I emphasise must—give reasons in writing for their decision.
Finally, it is not irrelevant—and these were points made very powerfully by the noble Baroness, Lady Berridge, if I may say so—that our courts are currently massively overburdened. Of course, judges do their best to hear urgent cases as speedily as they can, but delays are a serious problem in our court system. The Minister will no doubt have something to say about this. When the Committee considers what is the best, most effective and efficient way to address the real issues of independent assessment, it is important to bear in mind that the provisions of the Bill will apply only to those with six months or less to live. To have a system that builds in delays is going to damage the whole purpose of the Bill.
Lord Harries of Pentregarth (CB)
I wish to speak to Amendments 25 and 120 in the name of the noble Lord, Lord Carlile of Berriew, to which my name is attached. They are amendments which I believe go to the very heart of the Bill. It is vital that if the Bill eventually comes into law the system set up for approving requests for assisted dying should have the trust of the general public. We have to bear in mind that although people generally trust one another, trust in institutions is now at a record low; to put it another way, there is in our society now a deep distrust of official bodies.
However, having said that, there is one exception: the judiciary. Between 70% and 73% of the public trust judges to tell the truth, which is why we need a court-based system. The Member in the other place, when she introduced the Bill, argued that having a High Court judge would give the system an extra layer of protection against coercion and pressure, making it the “most robust” and safest system in the world. She was right in saying that. As we now know, however, she changed her mind, and the Bill comes to us in a very different form, with panels instead of a judge.
The main reason for the change was the view that the High Court did not have the capacity to meet another set of demands; hence the amendment in the name of the noble Lord, Lord Carlile, that requests should be dealt with by the Family Division. As he pointed out, although there are only 20 High Court judges in the Family Division, there are 40 other designated judges trained to hear serious cases; with this cohort there would be enough people available to hear requests for assisted dying.
The other reason for having a court-based system, which I find persuasive, is that a court has the legal powers to summon witnesses and order documents. If a judge had a concern about financial pressure being involved in some way, he or she could summon relatives or others involved to help him or her reach a decision. I am not aware that the proposed panel currently in the Bill will have a similar power. In Clause 17, “Determination by panel of eligibility for assistance”, the word “may” is mentioned eight times in subsection (4). The panel “may” call for this or that, but so far as I can see, it has no powers to make people comply.
We heard a very powerful defence from my noble friend Lord Pannick of the panel system with its experts and its other people. But I remind my noble friend that at the Second Reading of his Assisted Dying Bill in 2014, the noble and learned Lord, Lord Falconer, accepted an amendment from my noble friend to add a review of the Family Division of the High Court. He pointed out, rightly, that the Family Division deals with very difficult cases such as the Bland case or the separating of the Siamese twins, and he argued that they could deal with very difficult cases speedily and in time.
The noble and learned Lord, Lord Falconer, also told us that he disagreed with alternative proposals for the panel, which was, at that time, a panel of magistrates, not the kind of panel we have now. He said then:
“I think that you need the highest-quality judges to decide these issues”.—[Official Report, 7/11/14; col. 1881.]
The Times, in its leader on 15 December, described the move away from a court-based system to a panel as an “ill-advised about-turn”, and it was.
The noble Lord, Lord Shinkwin, and the noble Baroness, Lady Berridge, pointed to, quite rightly, the extra pressure that will be put upon the Family Division. But on the assumption that the Bill will go through—it has, after all, been voted on by the elected House—we have to ask ourselves: which is actually safer? Is it safer to have a court-based system or to have the panel? I believe that given that it is judges who are trusted in society, we should go for a court-based system, and I strongly support the amendments in the name of the noble Lord, Lord Carlile.
Baroness Butler-Sloss (CB)
My Lords, I am the only person in this House who was President of the Family Division. I did the final part of the Bland case, to allow him to die. I very much prefer the idea that we should have a court-based decision, for the reasons that have already been given. I am rising only to answer some of the points made by the noble Lord, Lord Shinkwin, and the noble Baroness, Lady Berridge.
First, judges try extremely difficult and emotional cases. I really do not think it is necessary for this House to consider the emotional impact of those cases because that is our job. If it is our job, we do it, and then we hope that we can cope with it. I tried endless life and death cases; I have to tell your Lordships that deciding that a baby should die was even worse than deciding that an adult should die, but it has to be done.
Secondly, I come to the proposal of the noble Lord, Lord Carlile, that not only the 20 Family Division judges should make these decisions but deputy High Court judges and the designated family judges; indeed, there are other judges in the family centres who are equally good. When I was President of the Family Division, I ticketed those family judges who were suited to try adoption cases. I see no problem in the President of the Family Division deciding on those judges and the KCs who are Section 9 deputy High Court judges to work out who would be suitable to try these cases. That would increase the number of judges available from 20 to all the part-time and other judges around the country. That is not the best solution—the best solution is the 20 judges—but the reality is that it would be necessary.
Finally, if Parliament passes this legislation and tells the Family Division and the other family judges that it is their job to deal with somebody who is likely to die within six months—although we all know how inaccurate that six-month figure can be—the judges will do it. They will then have to give priority to life and death cases, which they do anyway, even if it means that other important cases are kept waiting. Therefore, the delays in all the other cases have to give way to the requirement of Parliament that judges try the cases.
Lord Garnier (Con)
My Lords, I am diffidently following the noble and learned Baroness, with her experience both as a legislator and as a very senior judge. I am very pleased she intervened when she did, because her contribution has been most helpful, There is always a difficulty for someone like me, who is not a family law practitioner, to draw a distinction between the arguments of the noble Lord, Lord Carlile—I broadly support what he advanced—and the analysis of the noble Lord, Lord Pannick, in his construction of the Bill as it stands. There is merit in both, but as a House, we have to try to produce a practical solution. Irrespective of whether one supports the principle behind the Bill, if it goes through, it might as well go through in a way that works.
Putting to one side for the moment the very sensible arguments made by the noble Lord, Lord Pannick, one of the advantages of the arguments put forward by the noble Lord, Lord Carlile, is that we will be producing answers through a court of record, and it will create a form of precedent. I do not know, and maybe the noble and learned Baroness will tell me differently, but I have a suspicion that to start with there will be a rush of factually different types of case under this application system. At least one or two of the lead cases will be grouped and go to the Court of Appeal, where perhaps the president, with two other highly experienced Lord Justices of Appeal, will set out a legal rubric for judges of first instance to deal with. If the noble Lord, Lord Meston, has a moment, it would be interesting to hear what he has to say as an experienced family law circuit judge.
From the Court of Appeal, a case or a group of cases will go to the Supreme Court. I suspect that will all happen reasonably quickly within the early part of the life of the enacted Bill. Once we have done that, the system will settle. Senior circuit judges, Family Division judges, will be able to deal with these cases—difficult, hideous or contentious as some of them may well be—with the permission of Parliament, of course, but with the guidance of the Court of Appeal and the Supreme Court. That is a system to be preferred, because the panel system in the Bill, which the noble Lord, Lord Pannick, described, does not necessarily provide that legal authority, albeit that there could be a judge on the panel. It will not have the imprimatur of the Court of Appeal or the Supreme Court in its assessment of what has happened—I may be wrong about that.
Baroness Butler-Sloss (CB)
To pick up on what the noble and learned Lord, Lord Garnier, has just said, he is absolutely right. In the Bland case, that was exactly what happened. This was a permanent vegetative state. No one had ever had that case come before the courts. A High Court judge dealt with it; I was in the Court of Appeal, where we approved it. The Supreme Court—then the Judicial Committee—approved it. I then tried the first case. Then, it was understood by other judges how it should be dealt with. So, the noble and learned Lord is absolutely right.
Lord Garnier (Con)
I am very grateful to the noble and learned Baroness for her approbation of what I just said.
My final point concerns what happens if there is a lack of High Court judges in the Family Division. We are told there are 20, and there are 40 circuit judges who specialise in family work. It may well be that when the noble and learned Baroness was in the Court of Appeal or the Supreme Court, a commercial judge from the Queen’s Bench Division was appointed as the President of the Family Division. There are plenty of very bright and capable judges in the other divisions who, if required, could apply themselves to these sorts of cases. So, we are not going to be short of personnel; what we are short of is a decision of this House to agree with the position of the noble Lord, Lord Carlile, or something like that. It may well be that the noble and learned Lord, Lord Falconer, will come up with a way of dealing with the gap between him and the noble Lord, Lord Carlile, as one of these 10 thematic discussions, so we get a workable, just and publicly respected system which, if we are to have a Bill, allows the public to feel confident that it will work properly.
Baroness O'Loan (CB)
My Lords, I have put my name to a number of the 79 amendments in this group. As the noble Lord, Lord Carlile, said, there was initially provision for judicial management of these cases, given the magnitude of the risk. The assisted dying panel was substituted as a consequence of the difficulties that were identified.
So, what is unsatisfactory about the assisted dying panel process, and why is change necessary? Despite the remarks of the noble Lord, Lord Pannick, the Bill does not provide for family knowledge or involvement as a right. Surely, we do not want our people to end up in the position of the woman who heard of her mother’s death in Switzerland when she was told the ashes were in the post to her. We do not want families to discover after the event that their child, whom they are trying to support after a diagnosis of a terminal illness, having reached the grand old age of 18, has opted for physician-assisted death, leaving them no chance to intervene.
Inevitably, there will be major difficulties in providing professionals to act as panel members. We know that the lowest level of assisted dying deaths is in Oregon, where it is nearly 1%, but in Canada and the Netherlands it is nearly 6%. If only 1% of deaths here were assisted deaths, it would be 6,000 deaths a year. This is the figure referred to by Sir Nicholas Mostyn when addressing the Commons Public Bill Committee.
There are only 29,500 social workers in England and Wales, according to the impact assessment. There are quite simply not enough of them to care for and protect children and vulnerable adults now, so what element of the crucial and challenging work of child and vulnerable adult protection would be sacrificed to support the existence of assisted death panels? This is a very real question. The Royal College of Psychiatrists has said consistently that it cannot support the Bill, and there is a major shortage of registered psychiatrists.
As the noble Lord, Lord Pannick—and, indeed, the noble Lord, Lord Carlile—said, the Bill requires that the legal member of the panel holds high judicial office, is a KC, etcetera. But there are currently only 107 High Court judges, 20 Family Division judges and 41 designated judges, and our KCs tend to be fairly well occupied. Nearly 104,000 children were trapped in the family court backlog during 2023. The average time for dealing with cases involving children—very important cases—is 43 weeks, and there are currently thousands of couples and nearly 20,000 children waiting for hearings. Given the delays, and despite the intervention of the noble and learned Baroness, Lady Butler-Sloss, I do not believe that family court judges would be available to act as legal members—yet the decisions by the panel required by the Bill must be subject to time pressure, because there is the requirement of death within six months. Even if we allowed only three hours a case, at the lowest figure of 6,000, we would need 54,000 hours of members’ professional time. If the figure was 5%, it would rise to 270,000 hours.
How is this to be funded? How are these professionals to be trained, supervised and managed? What will be the cost of the panel members and the administration of the panels? The impact assessment provides no answers to these questions. Where is the money coming from? It is not coming from savings in care, because most palliative care is actually provided by donations from the public; only 30% is funded by the state. Therefore, the system now in the Bill is simply unsafe. It provides virtually no protection for the weak and vulnerable; it is not workable.
The very extensive amendments tabled by the noble Lord, Lord Carlile, and others are complex. Like the noble Baroness, Lady Hollins, I welcome the introduction of the changes in the terminology of, for example, a terminal illness and lethal drugs. However, the Bill’s current panel provision would be replaced by this new system. Judges would be able—and would be most likely, I think—to appoint a medical adviser in each case, as provided for in proposed new subsection (5) of Amendment 426. That would provide additional assurance.
Amendment 116, tabled by the noble Lord, Lord Carlile, sets out an excellent framework for judicial decision-making. It includes the consideration of six complex reports, including submissions by the applicant; evidence about diagnosis and prognosis of the illness; evidence of a specialist medical practitioner’s assessment of a mental condition; evidence about living conditions; evidence about the availability of suitable housing, effective palliative care and social care; evidence of a specialist palliative care practitioner; and evidence of people who are familiar with the applicant’s character and personality. This is the kind of evidence that would enable proper consideration to be given to this momentous decision to apply to end one’s own life with the assistance of the state—a state that has previously devoted all its resources to protecting and saving life.
If such proper evidence is to be considered in each case in which an assisted death is sought, there would be a requirement for some further 30,000 reports from specialists of various kinds as well as social work reports on a person’s living conditions. Without this type of evidence, there could be no assurance that an applicant actually satisfies every requirement of the Bill, that there has been no coercion or undue influence, or that the person has simply lost all hope of anyone helping them live out their life in peace and with dignity. There is also a major shortage of specialists in virtually every area of NHS work. Although the system proposed in the amendments in this group does not immediately provide a definite route for family and friends who fear coercion and so on, that would be required.
If there were 6,000 applications for assisted death a year, and if a judge had to gather and consider all the evidence and reach a conclusion, it would probably take him or her at least four hours—about 24,000 hours of judicial time would be required. Family courts have frequently been described as complex, inefficient and difficult to navigate for families without legal support. The PAC heard concerns that court staff, legal advisors, and Cafcass staff are
“poorly resourced or trained to support domestic abuse victims, and that their needs are not being met by the family justice process”.
Moreover, if those courts cannot identify and provide for abuse arising in the current context of current cases, how will they identify abuse in cases where a person seeking an assisted death has been subject to coercion or abuse? Yet failure to do so may well result in the state dispensing death to someone who is not making an independent and informed decision.
There is also a problem about the cost of lawyers. The current fees for the family court range from £579 to £200 per solicitor per hour. Noble Lords can calculate what this would cost a family seeking to be represented in the court. The assumption must be that this will not be publicly funded. The PAC recently published a report about access to legal aid. It states that about 24% of the population, often those most in need of legal assistance—disabled people or those living in poverty—are excluded from the remote access now provided by digital means.
These matters should have been considered in a public consultation, but there was none. There should have been an assessment of risk and cost, but there was none. If judges are to make these decisions, we need more judges. It is not enough to say that judges will deliver if we tell them to. The reality, as we know from examining and observing the operation of the courts, is that cases are delayed. There are 80,000 cases alone waiting in the criminal justice system for trial. Rape cases are being listed for hearing in 2029. How are we to care for rape victims and other litigants when we are also providing this extra urgent need to make determined applications for assisted death? I therefore ask the Minister: how do the Government propose to resource even the panels’ work. Is the intention to designate other judges who sit largely in the Crown Court? A person making an application will have six months to live, so this is going to be urgent in any situation.
The amendments tabled by the noble Lord, Lord Carlile, are necessary and would provide far greater protection. However, if the original proposal, which gave very little protection and was secret, could not be delivered, it is difficult to envisage how judicial capacity could be found to deliver the service in a timely manner. An impact assessment is urgently needed before your Lordships can rationally make a decision on these cases.
Lord Markham (Con)
My Lords, I have found this debate to be very helpful, because we all of course want the safest processes possible in all of this. It is clear that we are all reaching to try and find a way that we think will work. To a certain degree, it is all down to whether the best way to do this is through a multidisciplinary panel or a judge-led court process.
The example that the noble Lord, Lord Carlile, gave in terms of life support is quite illustrative, because life support decisions are made by medical professionals. In the vast majority of those cases, they then go through on the basis of that professional advice. It is only in the edge cases or serious cases where there is an appeal process that the family can take to court.
On this proposed process, there is a multidisciplinary panel, very well described by the noble Lord, Lord Pannick, which includes a psychiatrist, social worker and judge—the professionals in this particular area—who will be very well placed to reach a decision in a similar way to life support decisions for which, in the vast majority of cases, everyone is happy that it is the safest and right decision. There is also the oversight role of the commissioner, who is of course a judge in this process and, rather like the example of the life support case, has the ability to oversee and review that case where there are serious concerns. The life support example is a very good one here, given that we are trying to adopt a similar process in the multidisciplinary panel with the oversight of the commissioner.
On a way forward, it may be for the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Carlile, to discuss how those cases can interact. Where the multidisciplinary panel might need oversight, the concern is how that can be triggered and how that can be worked out in terms of the commissioners. We have a framework there that, like the life support example, can get the best of both worlds. That could prove a constructive way forward.
Baroness Hayter of Kentish Town (Lab)
I will take the advice of the noble and learned Baroness, Lady Butler-Sloss, and now get rid of what I was going to say, because the noble Lord, Lord Markham, has said most of it. I now have only three points to add, so I thank the noble Lord for that.
First, the big discussion is on whether it should be a court or panel. The reasons for the panel have been put, so I do not need to repeat that. The only thing I would say is that when this was discussed in the Commons, it was not about the capacity of the courts that made them make the change to a panel but about the advice they got that this would be a much better, holistic and patient-focused way of doing it. In fact, making sure that that bit was added was very much welcomed by the British Association of Social Workers and the Association of Palliative Care Social Workers.
Secondly, the mention just now of legal aid says it all. Surely, we do not want this to be an adversarial process. It should not be argued in front of a court that way. I want to be very brief, because I am taking the advice of the noble and learned Baroness to be very brief, but we want this to be a conscientious decision and not one that is adversarial, which is why I think the panel would be so much better.
Lastly, this is not a life-or-death issue, because these people are dying. We are discussing only when they die, not whether. That is different from deciding that a baby will die who was not going to die anyway, or even someone in a permanent vegetative state. That is why I really do not agree that it is right to use the word “suicide”, rather than “assisted dying”. People are dying, and this is the issue of when they die and not whether.
Baroness O'Loan (CB)
Is the noble Baroness aware that we are discussing the possibility of having either a panel or a court process? The research and reports show that families and individuals have great difficulty negotiating the Family Division of the High Court and the family-designated judges processes. Legal aid may well be necessary to assist in some of these matters.
Lord Meston (CB)
My Lords, as the noble and learned Lord, Lord Garnier, said, we really have to make a choice between court-based decisions and the panel, as the Bill provides for in its present form. There is merit in both. There is a strong case for the use of the expertise and skills of the Family Division of the High Court and designated family judges—I should declare that, until quite recently, I was one of them. However, as the noble and learned Lord said, the courts will be faced with an initial rush of applications. That tends to happen with any significant change in the law, and it is likely to happen in this situation. It will take some time for the procedures to settle down, whether they are in front of a panel or the court. As the noble Baroness, Lady Berridge, said, we require some realistic assessment of the likely additional workload on the judiciary and the court system. The judiciary is of course well used to hard work and working under pressure, finding time when it is required. It should also be borne in mind that not all these cases will be complex or contested. In fairness to what was said by the noble Lord, Lord Shinkwin, there is no question of cases being nodded through or rubber-stamped, whether by the court or the panel. Family judges are used to prioritising cases when urgency is required, and they do so by underpinning their decisions with focused and robust case management.
The noble Baroness, Lady Berridge, is right, and I endorse what she said: judges are real people. I therefore endorse her call for consultation with the current President of the Family Division. I also suggest that one way through this might be an enhanced role for the independent advocate provided for in Clause 22, who will assume the role that guardians have in more conventional family cases—representing the interests of the person, whether a child or an adult, at the heart of the litigation.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I want to draw the implications for Northern Ireland into the conversation on the amendments from the noble Lord, Lord Carlile. Clearly, Northern Ireland has its own family court system, which, incidentally, has its own issues and backlog. However, that does not mean that people in Northern Ireland are entirely unaffected by court decisions in England and Wales. Each year, the family court for England and Wales hears cases involving parties on both sides of the Irish Sea, perhaps most notably applications for a child arrangements order, where one parent is living in England and the other in Northern Ireland. In such cases, delays in the English court can result in parents and children in Northern Ireland being left in limbo, awaiting decisions, with all the connected anxiety and parental conflict that goes with it. I simply present that as an example of the sort of impacts that ought to be considered, if we want to make any claim to be engaging in serious policy work.
There is no doubt that there will be even more acute impacts in England and Wales, where the strain on the court will be more direct. Catherine Atkinson MP in the other place reminded Members that:
“More than two thirds of care proceedings involving the most vulnerable children in our society cannot be completed within six months”.—[Official Report, Commons, 29/11/24; col. 1030.]
If that is the case at the moment, what can we expect if family court judges are increasingly swamped with assisted suicide cases instead?
The estimates from the former head of the Family Division, Sir James Munby, suggested that at least 34,000 hours of judicial involvement will be required each year for a proposal such as this to work, whereas the 20 judges in the Family Division of the High Court currently sit for only a total of 19,000 hours between them across all cases. Clearly, that is not something that we can ignore, and it is quite apparent that the bulk of the work will fall on circuit judges.
In saying that, I stress that I am not without sympathy for many of the concerns raised by the noble Lord, Lord Carlile. In the words of the Medical Defence Union, the current approach leaves doctors “unduly exposed”, making assessments on coercion, capacity and—as we heard a few weeks ago— residency that they feel unqualified to make. In my opinion, the Bill, as drafted, is not fit for purpose.
I have to say that I am equally concerned about the prospect of attempting to legislate on the fly, which is what we seem to be doing. What level of resource would the family court proposal require? How many additional circuit judges will be designated family judges? What impact would this have on the principle that, ideally, judges should be specialists in the area in which they are engaged? Incidentally, I believe the noble and learned Lord, Lord Falconer, has previously supported that principle. What would be the cost for an already overstretched court system?
We have been left to do policy in the dark. As former Lord Chief Justice the noble and learned Lord, Lord Thomas, warned in November,
“no one has grappled with the detail”
of the legislation’s impact on family courts. The legislative hokey-cokey on the issue of judicial involvement, which goes back much further than this Bill, has certainly not helped. It gives the impression that no one has worked out how to resolve the dilemma at the heart of the Bill—that the necessary level of safeguarding that such a Bill needs ultimately renders it unworkable. I know that the noble Lord, Lord Pannick, has said that this applies only to those who have six months to live, but no one can state categorically that a person has only six months to live. As a minister in the Church for 50 years, I have known numerous people who have been told that they have only six months to live, but they lived for years after that. Therefore, while it has been suggested that this applies only to those who have six months to live, we do not know that, and we cannot give that assurance.
In 2012, the Commission on Assisted Dying, chaired by the noble and learned Lord, Lord Falconer, considered several models for approval of assisted suicide. Those included: a medical decision-making model where doctors are solely responsible for decision-making; an NGO or volunteer-based organisation model, as they have in Switzerland or—to a certain extent—in Oregon; a tribunal model; and a court model, with the question posed whether the court should be the family court, as in the amendment, or another, such as the Court Of Protection. In 2012, the noble and learned Lord, Lord Falconer, firmly backed the medical-only model, as his report reads:
“Our assessment of the body of evidence overall has convinced us that it is health and social care professionals who have the knowledge, skills and training structures that would be needed to implement a safeguarded system to permit assisted dying in the UK. Therefore, we do not consider that it would be necessary or desirable to involve a tribunal or other legal body in decision-making”.
However, just two years later, in Committee on the Assisted Dying Bill, the noble and learned Lord made an about-turn—the court model had become the silver bullet. He told the House that
“I do not think that one can leave it to doctors alone, in particular to form two views: first, on whether it is the voluntary, clear, settled and informed wish that somebody wishes to end their own life; and, secondly, whether they have the capacity”.
In fact, he was such a convert that he made it clear in that debate that it needed to be
“the highest-quality judges to decide these issues”,—[Official Report, 7/11/14; cols. 1880-81.]
and the role for the Family Division was added into the Bill.
That position briefly persisted when the noble and learned Lord’s co-sponsor introduced the Bill in the other place, announcing it as the safest in the world due to the High Court element. But then that idea fell apart too, and the tribunal-style model, combining medical and legal elements, was adopted instead, on the claim that it would be “more robust”. At first, I thought that this was the plan all along because Dignity in Dying—the real sponsor behind the Bill—indicated this as its preferred option to the Commission on Assisted Dying in 2012. But then I read a line in the commission’s report where Dignity in Dying said:
“If there was going to be a tribunal then you would expect it to be part of the tribunal service”,
which of course the panel process currently in the Bill does not do.
This flip-flopping does not inspire confidence, and I certainly think that we should bear this in mind if the noble and learned Lord, Lord Falconer, indicates shortly that he suddenly once again thinks that the High Court judge is the way to go. It is incumbent on us to consider the reason that the High Court judge was scrapped in the Commons—again, not because I think that it was better but because it raises those questions of workability.
When interviewed by the Select Committee, Ms Leadbeater in the other place claimed that the removal of the High Court was to ensure a more “patient-centred approach”. But I am not sure that this tells the full story. In February, the Guardian reported that senior officials in the Ministry of Justice were understood to have significant concerns about the sign-off from a High Court judge in the original Bill, given lengthy backlogs in the family court. Perhaps the Minister would like to confirm these reports when she replies.
To conclude, it is important to stress that decisions around Amendment 120 are not peripheral but a central policy consideration that touches the very heart of the Bill. Is the Bill about introducing a new so-called treatment option to be overseen principally by the healthcare professionals, like other end-of-life choices, or is it more about giving the courts extraordinary discretionary power to resolve concerns about the operation of the Suicide Act in extreme cases? It is astonishing that at this late stage in the process, with the Bill having passed through the Commons, we have still not resolved this important point of principle.
Lord Gove (Con)
My Lords, I speak because I was persuaded by the case made by the noble Lord, Lord Carlile, but I recognise that there are inevitable questions that his case provokes, which have been reflected in the debate.
Of course, not everyone has been convinced. I am reassured by the strength of the noble Lord’s case, having spent four and a half years as an Education Minister and one and a half years as a Justice Minister with direct responsibility for liaising with the family courts, and so my respect for those who work in those courts and the judges in them is all the greater for it.
However, as the noble Lord, Lord Pannick, has pointed out, not everyone believes that judges would be the ideal people to make decisions in this case. I remind the noble Lord, Lord Pannick, with respect, of the case that he made in his wonderful book, Judges, where he said:
“So long as men and women continue to wound, cheat, and damage each other, there will be a need for judges … Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid: make decisions”.
Each of us may consider either judges or a panel preferable, but there is one key question for those who agree with the noble Lord, Lord Pannick, in his current incarnation and believe that a panel is preferable. Can we know what the promoter of the Bill understands by “legal member”, and can we also understand what the Government believe the definition of “legal member” to be? What is the threshold, what qualification—
Lord Falconer of Thoroton (Lab)
There is a detailed definition of “legal member” in paragraph 2(2) of Schedule 2.
Lord Gove (Con)
I look forward to hearing what the Government believe the appropriate definition would be and what they understand that means in terms of the pressure on resources for the profession.
Baroness Finlay of Llandaff (CB)
My Lords, the noble Lord, Lord Carlile, has done us all a great service. Last night, it was clear that there is a view that some really major parts of this legislation need to be addressed and debated. This is absolutely one of those major parts. It is about where decision-making finally sits. The noble Lord has provided a clarity that could improve safety in relation to the Bill—I will not say to make it safer but to make it less unsafe—and that becomes important.
The scheme that the noble Lord has proposed would reinstate a court-based model that was previously welcomed when the Bill was introduced because of the clarity of decision-making that it provided. On the process of assistance with suicide or having an assisted death, we are not going to argue about the wording here now. That is not appropriate. The clauses relating to the specifics of the lethal dosage of drugs both make the death part of the process clearer and provide better governance oversight. The process also seems to provide some protection for NHS services by putting the decision-making outside healthcare, with clarity of the roles between the two.
I added my name to the amendment to strengthen the conscience clause, Clause 31, so that no registered medical practitioner is under any duty to perform a function in relation to this Bill other than those of notification and recording matters. This avoids eroding NHS clinical services and maintains the core duties and responsibilities of the NHS. It will be particularly important if legislation is passed in Scotland, because we need compatibility of the conscience clause between England and Wales and Scotland. The legislation currently going through in Scotland will have its draft conscience clause removed at the time that the Scottish Parliament goes to vote on it, because the provision of such a conscience clause is not a devolved matter. The exercise of conscience not being a devolved matter will require a statutory instrument passed from this House, or possibly even primary legislation, for it to be then included later in the Scottish legislation.
The noble Baroness, Lady Berridge, raised concerns about the wording of proposed new subsection (1) in Amendment 116. I wonder whether the noble Lord, Lord Carlile, would consider changing that to incorporate the amendment that I have tabled—the proposed new clause would replace Clause 3—over the assessment of capacity. This amendment was developed by the Complex Life and Death Decisions group at King’s; the national expert on mental capacity assessments sits as a key member of that group and as a professor at King’s College.
I hope the proposers of the Bill will recognise that proposed new subsection (2) in Amendment 116 provides very important minimum criteria that must be provided: questions that must be asked when such a decision is to be made. The court can certainly ask for them to be provided to it. It seems as if a panel would be discretionary over whether these criteria were looked at, and it would strengthen confidence in the decision-making to know that they were there, because it would provide transparency and consistency, and a process of appeal would be available. We know that no appeal system exists in the Bill as currently written in relation to panels agreeing to an assisted death being provided, and the real concern there is that these panels could eventually become something of a tick-box exercise under quite a lot of process. As has said been said before, those with a judicial background are not acting in a judicial capacity on the panels, whereas the proposal by the noble Lord, Lord Carlile, provides judicial capacity and processes.
The amendment that seems to be key is Amendment 120: its proposed new subsection (4)(b) would require a statement of medical fact, with the decision-making being taken by the court. Again, it will be much easier for people to provide a statement of medical fact than to feel that they are taking a decision over the provision or non-provision of lethal drugs. In proposed new subsection (5)(a), I hope that the doctor has to be on the specialist register for the specific condition of the patient—I seek clarification on that—or to have been a GP principal for longer than three years. It is important to be clear that this should not be a doctor who is at a training level, even if they have been a trainee for more than three years, because the ultimate responsibility sits with the consultant or the GP under whom they are training. There could be confusion over responsibility if this is not clarified.
On Amendment 120’s proposed new subsection (6)(a), can the noble Lord, Lord Carlile, confirm that it may be not the GP at all who is involved but a hospital consultant or long-term associate specialist who has been providing medical care? These might seem like minutiae, but we are in Committee and discussing amendments that can be changed, and I think it will be important to have that clarity.
It seems that proposed new subsection (5) in Amendment 426 seeks to provide additional security with a court-appointed medical expert. This proposal seems to protect us against going down the route that Canada has gone down. It seems to really attempt seriously to detect undue influence. Allowing interveners is very important; it is all part of the desire for there also to be an appeals process and of getting all the information.
I stress that there is a clarity between decisions about whether somebody is given lethal drugs to significantly shorten their life, accepting that a prognosis of six months is not much more than a guesstimate—in fact, it is a guesstimate—and the position that has been discussed over life support decisions. When a patient is on life support, the decision to cease that intervention is based on two potential factors: one is the futility of continuing with an intervention that is not achieving a therapeutic goal, and the other may be because the patient withdraws their consent for continuing that intervention in an informed way and has capacity to do that. That is fundamentally different from somebody providing lethal doses of drugs with the deliberate intention to shorten a person’s life—which may be by days, weeks or months, but may be by years. As has already been said, we all have experience of people given a very short prognosis that turned out to be completely wrong.
I have some questions for the noble and learned Lord, Lord Falconer. I know that he has already been given a large number of questions to answer, but I think it is really important. First, in 2024 he stated that
“family judges are … completely unsupported”
and that the family justice system is—I think I can quote correctly—“literally crumbling”. Were these the reasons behind the removal of the court oversight when the Bill was considered in the other place?
Secondly, in discussing these proposals with officials, what assessment has been made of the volume of cases outlined in the impact assessment being handled by this system, and what provision has been made for recognising that the numbers in the impact assessment are almost certainly inappropriately low? The data from Australia, New Zealand and other places has shown that, by year three, the uptake will probably be about 10 times higher than written in the impact assessment, because the impact assessment was based on data from quite a long time ago, when the Oregon system was instigated.
Thirdly, what costing has been undertaken for each of the models—the model of the panels as put in with the different numbers that might be involved—and what consideration has been made for a costing over this model?
I ask the Minister: what budget has been put aside to fund the system, whichever model is adopted, and what option appraisal has been undertaken over the safety of individuals and the ability to identify coercion with a higher degree of probability than currently exists and to identify abusive relationships?
As I have said, the financial costs for each model, tested against the impact assessment numbers, appear unrealistically low. I think we all look forward to the questions being answered.
Baroness Hayter of Kentish Town (Lab)
My Lords, given the number of questions that have been put to the Minister—and, indeed, to my noble and learned friend and to the mover of this amendment—I wonder whether it might be useful if we now move to the Minister and the others to answer some of these questions. There are so many that it would really help the Committee if we could hear some of the answers.
Lord Harper (Con)
My Lords, the flaw in that argument is that not all of the questions for the noble and learned Lord, Lord Falconer, and the Minister have been asked. If they answered some of them now and more were then asked, we would need to hear from them again. That would not help the Committee make progress. It is better that the noble and learned Lord and the Minister hear all of the questions then respond to them.
I listened carefully to the procedural debate yesterday. There was a great deal of concern that one of the reasons for the slow progress of the debate was the fact that many of the questions asked in the debate have not been answered by the Bill’s sponsor; indeed, the sponsor himself recognised that he needed to do better. That is welcome, and we look forward to hearing that later.
Lord in Waiting/Government Whip (Lord Lemos) (Lab)
I do not want to interrupt the noble Lord but I am sure that it will be useful for him to know that the Minister will respond on the question of resources when the time comes.
Lord Harper (Con)
That is very good. I am glad that the noble Lord has confirmed that the Minister will respond; I look forward to her doing so.
My final point concerns whether the Bill’s sponsors have carried out the modelling and costings that their proposals will require. Have those been put before this House so that we can make the appropriate decisions?
Lord Falconer of Thoroton (Lab)
I am sure that the noble Lord will have read the impact assessment; it is based on the current Bill, which includes the panel, and contains detailed costings for the panel.
Lord Harper (Con)
I am aware of that. I want to know whether it will contain detailed costings for the court process. Obviously, I do not know what the noble and learned Lord, Lord Falconer, is going to say, but one of the things discussed yesterday was whether he will accept any of the amendments that have been tabled. The point I am making is that, if he were minded to accept the amendments from the noble Lord, Lord Carlile, which obviously have a cost implication, there is a role for the Government in assessing those costs as well as a role for the sponsors. I am simply asking whether, if the noble and learned Lord were to accept them—he may not, of course—he would also provide the costs to the Committee. At that point, I draw my remarks to a conclusion.
Lord Hamilton of Epsom (Con)
My Lords, I will not detain the Committee for very long; the noble Baroness, Lady Hayter, can be reassured that I am not in the business of making a long speech.
I have in the past expressed my concerns to the noble Lord, Lord Carlile, as to whether judges are the best people to make these decisions and whether they can do so against the advice of the contracting doctor. The problem is that the doctor will be absolutely adamant that he is right in his case; I do not see why a judge should be able to overrule that, and I am not at all certain that a panel makes it much better. We should concentrate very much on the question of the contracting doctor; my forthcoming amendments will, I hope, address that point.
The problem is that doctors are sometimes malevolent. I accept that the doctors in this House are dedicated to looking after their patients and the public good, but that is not always the case. There are occasions—the noble Lord, Lord McCrea, referred to them—when doctors get it completely wrong.
I am very pleased that although Esther Rantzen was given six months to live, that was two and a half years ago. She wrote an article in the newspaper saying how much she has enjoyed the extra time that she has been given, although she is an advocate of this Bill. We must accept that doctors get these things wrong, and I think we should be concentrating on the contracting doctor rather than on the process of review.
Baroness Coffey (Con)
My Lord, this is an enormous group of 80 amendments and 16 clause stand part notices, some of which I have tabled. I recognise that the majority of the amendments are about establishing a judge and court-led process, about which I have added various amendments. Separately, there are important issues. I am particularly impressed by Amendment 116, about deleting Clause 3 and not using the Mental Capacity Act 2005 but replacing it with the new proposals. My noble friend Lady Berridge has already asked some questions on that, but the reason I bring it up at this point is that I want to speak particularly to Amendment 426, which would introduce court proceedings.
I was particularly struck by proposed subsection (6), which refers to it being
“beyond reasonable doubt that … the applicant has capacity”.
It does not directly refer to the new amendment, but I am considering some of the debates that we have had, which I do not want to repeat. The key point that is that the Mental Capacity Act is used every day by health professionals, but on balance of probabilities not on beyond reasonable doubt. This is why I support the approach of the noble Lord, Lord Carlile, in bringing forward—reintroducing, in effect—the process that was in the Bill when it started in the Commons where more than half of MPs voted for it. When the judge role was removed when it came to Third Reading, fewer than half of MPs voted for it. There was a substantial reduction in support. Although I accept that there was still a majority, it was down to 23.
I am conscious that what is not in the amendment proposed by the noble Lord, Lord Carlile, is whether the court proceedings should be held in public. I tabled Amendment 426A because it is my understanding that it is not the usual practice of the family court at whatever level to sit in public. I think this is an important element that needs to be considered. Indeed, it is what is proposed for the panels that are considered elsewhere. I have gone further in my Amendments 426B, in particular, which is more of a probing amendment, and 426C. One thing that the late Sir James Munby said about why he did not think this should be done by High Court judges is that it was not clear whether this was just rubber-stamping or whether the judge was being used to make a determination, a decision, about some of the things.
Going back to Amendment 120, the structure that the noble Lord, Lord Carlile, has put together is about inserting a requirement for reports to be provided that would help the judge to make that decision. It is important that we do not end up, as happens, in effect, with a lot of tribunals around the country, making decisions on the papers. This is a life-or-death decision. I appreciate what the noble Baroness, Lady Hayter of Kentish Town, said about when, but it is actually about how somebody dies, about a medical professional not just withdrawing treatment, as we mentioned on some other issues, including the Bland case, and which happens regularly now, but supplying lethal drugs to help somebody take their own life. It is different in that regard, which is why I am attracted to the proposals that were originally in the Bill, which would be reintroduced by the amendment proposed by the noble Lord, Lord Carlile.
I am conscious that not everybody may be fit to attend physically, but I think that that connection between the person who is asked to make the determination about whether somebody has capacity and whether there has not been coercion of whatever kind is important, and that is why I have put forward these probing amendments for us to consider. Ultimately, we are trying to work out how we make this element safer. What was said on Report in the Commons is that the general approach is now safer than a judge-led process. I am not convinced by that. I do not need to repeat the arguments that others have made, but I respect the role of judges in making these decisions, particularly in the family court.
Lord Lemos (Lab)
I ask the noble Baroness to draw her comments to a close. The time indicator is flashing.
Baroness Coffey (Con)
Yes, I will. I am just saying that it is really important that we get statistics, and that this becomes the premise of the Lord Chancellor. This will be critical to making sure that we have confidence going forward and I will have to work out a way to reassess these amendments in future groups.
Lord Empey (UUP)
My Lords, I am indebted to the noble Lord, Lord Carlile, for bringing to a head one of the critical issues in this legislation. As one of the diminishing number of people in this House who is not a lawyer, I say that we have to find our way through this labyrinthine structure where we have chambers and all sorts of things. Without legal experience, it is difficult even as a legislator to navigate through this.
The point I want to make at the outset is that this significant piece of legislation started off in the other place with the legal process as a fundamental part of the architecture. That was subsequently changed more than half way through its process in the other place, and now we are trying to re-inject it into the system. I would ask the sponsor and indeed the Minister to respond to this. There are so many issues that have been raised already this morning about the consequences of making this change, for which we have absolutely no information whatever.
I remind colleagues that, on our last Friday, there were five separate issues—I repeat, five—to which no response or answer was provided. They were: the issue between England and Wales, the issue between England and Scotland, the issue of pregnant women, the issue of homeless people, and the issue of prisoners. There is no clarity on any of that.
The noble Lord, Lord Carlile, and his co-signatories are attempting in these amendments to at least make the legislation, as the noble Baroness, Lady Finlay, said, less unsafe. The stage we are at in this legislation is probably 75% or 80% of the way through the process and, as with a Meccano set, we are still bolting bits on and taking bits off.
All of this could have been avoided if we had had the proper process of a Royal Commission and a government Bill. This is Heath Robinson-type legislation on such a serious issue. I have to say to the sponsors that, instead of battling this out for the next few months, they would be far better to go to the Government and ask them to appoint a commission and get on with it. Then we would not have to fight our way through this morass.
Not being a legal person myself, I ask the noble Lord, Lord Carlile—given the pressures that we understand are applied to the courts and the Family Division—whether there is a case for the creation of a special chamber for people who are dedicated to this, with the training that would be required. Or, with the pressures that the family court is under, could it be that comparatively junior people end up being designated to hear these cases? Because you are talking about a huge gap in knowledge and experience on a life and death issue.
Maybe these questions cannot be answered now—maybe we will get answers when we come to Report—but the fact is that we are having to ask all these questions and we have no information, no numbers and nothing in front of us. I do not believe that that is a coherent and sensible way to go forward.
The noble and right reverend Lord, Lord Harries of Pentregarth, made a very valid point about the general public’s confidence in who makes such decisions. While I can see the merits, as the noble Lord, Lord Pannick, pointed out, of having a panel with different disciplines, the fact of the matter is that persons who are on that panel have to be appointed by somebody. Is there confidence in the people who appoint them? The court system, however, has a level of public confidence miles above any alternative.
All of these things need to be sorted out. They should have been sorted out before we had this debate today and they have not been. That is where we are. I think that the noble Lord, Lord Carlile, is attempting to put a foundation under this legislation. Leaving issues of principle out of it for the moment—we are legislators and sometimes we have to do things that we do not want to do personally—we are obliged to undertake this process. I assume that he is trying to put a foundation underneath this legislation that would command confidence among the general public, or at least a higher level of confidence than, I suspect, the panel process has. The fact that we have had this change and this flip-flop is very concerning.
I conclude by asking the noble Lord, and indeed, necessarily, the Minister: if these amendments were to be accepted by the sponsor, what would be the Government’s response? The noble Lords, Lord Harper and Lord Gove, have raised this, as have others. I understand that Ministers are in a difficult position. They are technically dealing with a Private Member’s Bill, whatever some of us think about that. Without having knowledge of what the state is going to do, we are legislating for the state to intervene to allow a person to end their life, which is against other legislation that we have already passed. So it is important that the Government should let us know what their responses will be in these various scenarios and I do hope that, when we come to the wind-up of this debate, we will get some clarity.
Baroness Grey-Thompson (CB)
My Lords, I speak to Amendment 67 in my name, in which I have sought to bring back the role of the High Court judge. The complexity of this group of amendments is shown here, but I thought that it could be done with one amendment rather than the number of amendments that my noble friend Lord Carlile had to table.
I think that this debate shows many different things. Not least, we have heard quotes about how the noble and learned Lord, Lord Falconer, has changed his mind over time. Others in the Chamber have done so as well, depending on the situation and the specific piece of legislation.
We need to give much more consideration to how this Bill will work in practice; this is one of the fundamental issues. I was disappointed when the High Court judge was removed from the process, because that had given me a level of reassurance. I felt that it gave authority and integrity to the process.
On where we are now, as other noble Lords have said, the toing and froing of this part of the Bill is very difficult. In another place, two-thirds of the debates on the Bill took place with the High Court judge as part of the process. If the noble and learned Lord was minded to bring that back in, it would yet again change a huge part of the Bill.
I thank the noble and learned Lord for meeting me before Christmas, when we had a very interesting discussion on one of the areas I am very concerned about, which is coercion, specifically coercion of disabled people. I am not minded to think that the panel is strong enough to cope with not just the number of cases that they may have to deal with but actually being able to spot some of the things that we have talked about. I have amendments on coercion; I also have amendments on the appointment process of those panel members, which I will not debate now. I know that the noble and learned Lord and I disagree on whether this is the safest Bill in the world. This is not the time for me to ask who has provided independent verification of that, apart from the Bill’s sponsors, but one thing we have to talk about is how we can make the Bill safe.
Baroness Berridge (Con)
The noble Baroness used the phrase “moral pressure”. I mentioned in my speech that this is a fundamental change. If Clause 3 has gone, not by way of clause stand part, then actually, “pressure” has now gone from the test here. We now have “undue influence or coercion”, not “dishonesty, coercion and pressure”. Does she have any view—I mentioned domestic abuse victims—on whether that makes any change to the safety of the Bill for disabled people?
Baroness Grey-Thompson (CB)
Oh, absolutely: I think pressure is something incredibly important that we have to assess. Certainly, from the huge number of disabled people I have spoken to, pressure comes in many different ways, and it is very difficult to detect. If we do not take that seriously, I think people will be coerced into thinking that this is their only option, rather than that they have a range of options. That is picked up in some of my other amendments, but I thank the noble Baroness for her intervention.
We talked about the equality impact assessment. We need to look at the impacts on the Crown Court, on health and education committees and on children with SEND, and I think we probably need another version of the equality impact assessment to enable us to make the best decision on the way forward for the Bill. I am minded to support my noble friend Lord Carlile, because I think that what he proposes is much better than the panel currently in the Bill.
Mindful of time, I will leave my last comment to the Medical Defence Union, the leading indemnifiers of UK doctors, which gave evidence to the Commons Bill Committee:
“The involvement of the judiciary is essential. Its absence leaves doctors unduly exposed. Media reports suggest that an alternative safeguard is being mooted”—
noble Lords should understand that this was the context when the evidence was given—
“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”.
This is one group we have not really heard a lot from, and we should be minded of its role in the system as well.
Earl Howe (Con)
My Lords, as sizeable as this group of amendments is, the key proposals embodied within it can be described in relatively brief terms. The Committee therefore owes its gratitude to the noble Lord, Lord Carlile, for having given exactly that kind of helpful summary in his opening speech, which set our debate going on a good track. In thanking him for that, what has emerged most clearly to me in this debate is the far-reaching nature of the change to the architecture of the Bill represented by his proposals. In addition, were his proposals to be adopted in their totality, they would, as I read them, have the effect of simplifying very considerably the procedures required to bring about an assisted death.
In combination, those two consequences inevitably open up a range of questions, as we have heard, about how these proposals would work, not just in theory but most particularly in practice. We have, for example, heard questions about the capacity of the family court, about its funding and about the extent of the opportunity costs which the family court would need to sustain. The noble and learned Baroness, Lady Butler-Sloss, and my noble and learned friend Lord Garnier gave us considerable reassurance on some of those issues, as did the noble Lord, Lord Carlile, himself. However, the questions that have been asked are of fundamental significance and I think the Committee should hear from the Minister how the Government view the practical effect of the proposals and their workability.
On the principle of the proposals of the noble Lord, Lord Carlile, we have heard some powerful points in their favour: for example, the established powers vested in the court; the analogous decisions which courts already have to make; the ability of the court to arrive at a reasoned judgment and to be a court of record; the fact that the court-based appeal system is well understood; and indeed the level of public confidence which the court already enjoys.
I would venture to add another, which is that the role for the court envisaged by the noble Lord, Lord Carlile, would be a substantive judicial role, in contrast to the role originally envisaged in the first iteration of the Bill. That came over to me, at least, as more of a tick-box exercise than an exercise of judicial judgment.
However, what I look forward to hearing from the noble and learned Lord, Lord Falconer, are his views on the strand of this debate brought out most ably by the noble Lord, Lord Pannick, my noble friend Lady Berridge and my noble and learned friend Lord Garnier: how he has assessed the merits of the proposals of the noble Lord, Lord Carlile, in comparison to the proposals set out in the Bill. He is on record, some years ago, as having favoured a court-based approach in this area of the law. If his view is that, on balance, he now favours the panel process, as set out in the Bill, what considerations have led him to that conclusion?
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, I shall respond to the amendments in the names of the noble Lord, Lord Carlile of Berriew, and the noble Baronesses, Lady Grey-Thompson and Lady Coffey. Some of your Lordships may be aware that I know the noble Lord, Lord Carlile, very well. Indeed, the convention of this House is that I refer to him as “my noble kinsman”. This has given rise to a number of jokes outside this Chamber, but there is a serious point to be made here. I reassure your Lordships that this has no effect on the Government’s neutral analysis of the workability of the amendments in question, and although I have the advantage of having advance notice of my noble kinsman’s position, I have engaged with him as to the Government’s response in no different a way from the way I would with any of your Lordships.
As this is the first time a Minister from the Ministry of Justice has spoken in this debate, I reiterate what has been said on many occasions by my noble friend Lady Merron: the Government’s position is that it is a matter for Parliament to decide the policy which underpins this Bill. It follows that I will not be providing a government view on the merits of any of the amendments, nor will I make any observations in a personal capacity.
I will, however, deal with the question asked by a number of your Lordships as to whether the Government would deliver this, were the will of Parliament to be that the general principle contained in the amendments of the noble Lord, Lord Carlile, were to be adopted. The answer is that, given our current workload, it would of course be challenging; I say this because I am in fact the Family Justice Minister, as well as the Lords Minister. But if it is the will of Parliament, then we will work with the judiciary to make sure that we have the resources in place to deliver what Parliament has decided.
This is a large group of amendments, and it is the Government’s view that—
Lord Harper (Con)
On that point, briefly, the Minister made the point about making available the resources to deliver what would be in the Bill. The question I asked her, which the Whip on the Front Bench confirmed she would answer, is: would that have an impact on other users of the court system, or would the Government make available extra resources to deliver what is in the Bill, but without disadvantaging other users of the court system? He did say she would answer.
Baroness Levitt (Lab)
He did not intend to say that he would go further than I have just gone. That is confirmed. I would be surprised if he had intended to go further than I intended to go.
With respect to the noble Lord, we are not here to debate what is going on in the family justice system. We are here to debate these amendments, and I am going to stick to that. I am also anxious not to take too many interventions because this is a large group, and there are things the Government want to say about workability. I need to get through them in the time allotted to me.
Lord Deben (Con)
It is of crucial importance for us to know whether, if we pass the Bill in these terms, other people who are in desperate need would find that they had to wait longer for that need to be met. It is not good enough for the Government to say, “We’ll provide resources to meet the Bill”. They must tell us whether those are additional resources or whether very sad and poor people are going to lose out because the Government take the money away.
Baroness Levitt (Lab)
I am sorry to disappoint the noble Lord, but I am not going further than I have gone.
It is the Government’s view that, to a great extent, the amendments in the name of the noble Lord, Lord Carlile, should stand or fall together. As we understand matters, the overall intention of the noble Lord’s amendments is to replace the assisted dying model set out in the Bill with a court-based system. That is a policy choice and a matter for Parliament, but the Government’s view is that, were Parliament to allow some of the noble Lord’s amendments but not others, this might cause problems with the drafting of other provisions, both in the Bill and elsewhere.
I give one further note of caution: if your Lordships support these amendments, the Government may need to revisit the drafting in order to ensure coherence with the statute book, and the noble Lord has readily acknowledged as much in his speech. Although our view is that the amendments from the noble Lord, Lord Carlile, stand or fall together, the Government believe that your Lordships should be aware of our observations and any concerns we need to raise about the workability of proposed clauses as currently drafted.
Baroness Levitt (Lab)
I really need to get through this. Can all interventions be saved until the end? If I can get through the things I really need to tell the Committee about, I will take interventions.
Lord Lemos (Lab)
No, I am sorry; the Minister has made it clear that she will try to take any interventions at the end if there is time.
Baroness Levitt (Lab)
I am so sorry. I mean no discourtesy to the noble Baroness, for whom I have a great deal of respect, but I must get through the matters that the Government need to tell the Committee about, so it can make decisions about this particular group.
Amendment 120A, in the name of the noble Baroness, Lady Coffey, is plainly contingent upon Parliament agreeing to a court-based application system. In that event, the noble Baroness’s amendment would then exclude those making applications to the court from obtaining legal aid or legal help otherwise sourced from taxes, except indirectly through benefits. The framework for legal aid funding is set out in the Legal Aid, Sentencing and Punishment of Offenders Act, known colloquially as LASPO—an old friend of mine. The Committee should note that there are no primary provisions permitting the grant of legal aid outwith LASPO, so the noble Baroness’s amendment would present a novel approach to extending those provisions. The Government’s view is that, if the principle contained within this amendment is the will of Parliament, the mechanism for achieving this may need to be considered within LASPO in order for there to be legislative coherence.
There is a further point your Lordships should note in relation to the noble Baroness’s amendment. Hearings related to assisted dying, as proposed by this Bill, are not currently in scope for legal aid funding within LASPO. But LASPO does contain provision for exceptional case funding, which provides for legal aid in circumstances in which the ECHR requires an individual to be able to be legally represented. The Government’s view is that excluding assisted dying hearings from legal aid funding, including the exceptional case funding mechanism, as a matter of principle and without exception could lead to a breach of convention rights.
I return to the amendments in the name of the noble Lord, Lord Carlile. Amendment 426 requires the court to be satisfied beyond reasonable doubt, first, that the applicant has sufficient capacity and, secondly, that to refuse to make the order would amount to a
“breach of the relevant human rights law”.
The Government have one concern and one observation. The concern is that it is not clear what the relevant human rights law means in this context. Given that there is currently no right to an assisted death under the convention, as drafted this would mean that the test could never be met. If the amendment refers to other rights, for clarity the Government feel that they should be specified.
The observation is that, as your Lordships will be aware, the expression “beyond reasonable doubt” means that it is the criminal standard of proof that applies. Thus, unsurprisingly, it is in criminal proceedings that the highest standard is generally required. In civil law, the criminal standard is usually reserved for cases where the courts are imposing a punitive measure and the issue to be determined is a question of fact, including findings as to states of mind, such as intentional recklessness. It would be unusual for there to be a requirement that a judge be satisfied to the higher standard on questions of clinical opinion and breaches of legal rights. That said, it would be a policy decision for Parliament whether cases of this kind required the application of a higher standard.
Amendment 426B, in the name of the noble Baroness, Lady Coffey, would require the physical attendance of the applicant in court. It seems that this would exclude any person who is unable to attend the hearing from accessing an assisted death. For this reason, this amendment would, in the Government’s view, engage with Article 8, on the right to private life, and Article 14, on the prohibition of discrimination, and that restriction would have to be objectively and reasonably justified in order to comply with ECHR obligations.
I turn to eligibility, and Amendments 69 and 95 in the name of the noble Lord, Lord Carlile. The Government have a concern that Amendments 69 and 95 would create uncertainty in relation to eligibility for assistance. It might be difficult to prove that a disease could not be halted for a short time, even in cases in which the clinical opinion is that its return and progression is inevitable. There may be a risk that this could be seen as creating unprincipled distinctions in eligibility and could therefore give rise to legal challenge, for example on the basis that excluding certain people is not justified under Articles 2 or 8 of the European Convention on Human Rights, and/or amounts to unjustified discrimination under Article 14.
On court-based mental capacity assessments, Amendment 116 would remove the use of the Mental Capacity Act and propose a different and untested approach to capacity. As part of this, the court would be required to play a more direct, investigative role than is standard practice in capacity assessments. The Government are concerned that this could create confusion for practitioners who have experience in applying, and are trained to apply, the test under the Mental Capacity Act. Switching to this new approach might risk undermining the quality of capacity assessments. There might also be a risk that it would create unprincipled distinctions in capacity by excluding anyone with any impairment of the brain or mind, even if that would not affect their capacity under the Mental Capacity Act. It would be important to be able to justify the different approach to prevent discrimination under the convention.
Amendments 427, 428, 613 and 781 would introduce the concept of independent persons who would be required to carry out various functions. It is not clear from the proposed new clauses how these independent persons would work together to carry out these functions or resolve any disagreements between them, or how the skills and experience of each profession would align with their duties. For example, under the new clause as currently drafted, a solicitor might be responsible for the collection and transportation of the approved substance. It seems that the solicitor would then be required to report on medical matters, such as pronouncing the death of the person, without any requirement that they complete medical training. The Government also have a concern that, should medical help be needed as an unforeseen consequence of the self-administration procedure, Amendment 613 might create a risk, if that independent person had no medical qualifications.
Amendment 427 would require the lethal dosage of the approved substance to be ingested by the person accessing an assisted death. Giving the word its ordinary meaning, “ingested” would not include intravenous or injectable administration. Ingestion is generally understood to mean taking a substance into the body via the gastrointestinal tract: that is to say, via oral, nasogastric or gastronomy routes. The Government believe that this is how most doctors would understand the word “ingest”. The Committee may wish to note that this amendment as drafted might prevent clinicians proposing a more clinically appropriate mechanism for a particular person, such as intravenous or injectable self-administration, or might have the effect of excluding some patients from having an assisted death even though they might be capable of self-administration by other means.
There are additional drafting issues. At the beginning of my speech, I observed that if Parliament were to allow some of these amendments, they might require some redrafting to make them workable. I give Amendment 626 as an example. First, the word “form” and the expression “lethal dosage of drugs” would, in the Government’s view, need more clarity in order not to give rise to uncertainty when regulations are drafted. Secondly, the requirement to specify the exact composition of each dosage might also raise issues of liability, intellectual property and safety. Thirdly, it should also be noted that what constitutes a lethal dose may be patient specific, depending on factors such as weight, tolerance, the patient’s health status and other medication, so the drafting may need to make provision for this. The noble Lord, Lord Carlile, readily acknowledged that there are likely to be some drafting issues. I can confirm the Government’s position is that, while we are neutral on all the policy choices reflected in these amendments, as on the Bill as a whole, the Government would provide drafting support to ensure that any amendments passed by either House are legally workable and consistent and coherent with the statute book.
Finally, Amendment 67, in the name of the noble Baroness, Lady Grey-Thompson, would require the Family Division of the High Court to make an order confirming compliance with the Act before a person could be provided with assistance. This would be in addition to consideration given by an assisted dying review panel. The Government have one observation: the amendment does not set out how and when a person’s case would be referred to the High Court. The Government feel that further detail would be needed in the primary legislation to ensure that supporting procedure rules and practice directions would be adequate.
That brings to an end my observations on behalf of the Government in relation to the workability of the Bill. I have not addressed all clauses, but I have a few moments left. As I said I would, if the noble Baroness, Lady Nicholson, wishes to make her intervention, I will take it.
Baroness Nicholson of Winterbourne (Con)
I thank the Minister. I would appreciate if it would be considered at some moment that the two medical professionals on the panel may not have any knowledge of hearing issues. There is about one week of a medical professionals’ training on hearing, and that of course is almost nothing. Unfortunately, in the United Kingdom, about 20 million people have hearing defects, some large and some lesser. None the less, when people are dying or are very poorly, they find understanding considerably more difficult. I want that point to be brought in, and I will raise it in considerable detail at the right moment. I merely ask the Minister to take account of it at this time.
Baroness Levitt (Lab)
I am sure the Committee entirely endorses what the noble Baroness said in relation to the importance of those who are hearing impaired. I think that, in these circumstances, this is not a matter for the Government; it is a matter for the proposer of the amendment and for the sponsor of the Bill should it be passed. However, the point remains an important one.
Lord Harper (Con)
Before the Minister concludes, she has obviously inadvertently omitted to answer the important question that both my noble friend Lord Gove and I asked. This is a resources question and the Whip, of course, confirmed that she would answer it. The Bill, as introduced, had a court system in it. It was reported that the sponsor of the Bill was advised by the Government and the judiciary that it was not possible to deliver that for capacity reasons. Did the Government provide that advice, and if they did, will the Minister publish it?
Baroness Levitt (Lab)
I am going to repeat the words that were used by my honourable friend the Minister for Courts in the other place. The decision as to the introduction of the panel was made by the sponsor.
Baroness Berridge (Con)
Can I outline that it is a matter for a Minister? There is correspondence between the Minister in the other place and Rebecca Paul MP that specifically relates to the issue of “undue influence”, which the noble Lord, Lord Carlile, has now proposed to be added for the first time into the Bill. I would be really grateful if the Minister would look at that correspondence and write and put a letter in the Library, because the Government expressed—if I am remembering correctly—a view on why “undue influence” was not appropriate to add to the Bill.
Baroness Levitt (Lab)
It sounds like an important point. I am sure that the noble Baroness will understand that I do not have the answer to that at my fingertips right now, but I will write to her.
Lord Falconer of Thoroton (Lab)
My Lords, I declare that my wife is a recently retired designated family judge—one of the people whom the noble Lord, Lord Carlile, wishes to include in his court-based process. It makes me warmly in favour of them; I admire greatly the Family Division. I also completely endorse what the noble and learned Baroness, Lady Butler-Sloss, said: if this was put in the Bill, I have no doubt that the Family Division would deal with it well and in accordance with the directions of Parliament. However, I am not in favour of the change proposed by the noble Lord, Lord Carlile, in Amendment 120. I will deal with that in detail in a moment.
Lord Carlile of Berriew (CB)
I do not want to take up unnecessary time, but the purpose of the judges’ role is to receive the evidence relevant to the issue under consideration. There are many tribunals, such as mental health tribunals, on which doctors serve, but in my view and that of many, where critical issues are being considered, a more satisfactory process, on the whole, is for the judge to hear the evidence and adjudicate on it. To pick up a point made by the noble Lord, Lord Hamilton, as the noble and learned Lord knows, judges are perfectly capable of rejecting medical evidence that is put before them and do so with reasonable frequency.
Lord Falconer of Thoroton (Lab)
I take that to be a yes. The position the noble Lord is proposing is that the judge hears the evidence of the doctors on issues, for example, of coercion, capacity and firm and settled view, and then makes the decision. The comparison we have is between what is in the Bill—two doctors each forming a view on the terminal illness decision and the issues of capacity and whether the person has reached a voluntary decision as to whether to have an assisted death, and the panel either endorsing it by giving the certificate or rejecting it—and, as the noble Lord is suggesting, letting the court in effect decide the whole thing. I reject that view because I am absolutely satisfied, although I accept that this issue requires a lot of work and thinking about, that you are much better off having a multidisciplinary approach to somebody making an assisted death decision. It is much better to let the social worker, the psychiatrist, the doctor and the legally qualified person look at the situation and then decide whether somebody should make that decision on assisted death.
The evidence given in Committee—
Lord Falconer of Thoroton (Lab)
May just continue? I will come back to the noble Baroness in a moment. This is very important—it is the critical bit of the whole thing.
There was a lot of evidence given to the Commons Committee in which this very issue was discussed. Sarah Cox, an expert, gave evidence. She said:
“The other thing that concerns me is that we are putting all these assessments on the shoulders of two doctors individually, followed up by a High Court judge. In any other clinical practice, when we are making very serious decisions, we know that shared decisions are much better quality, much more robust and much safer. In clinical practice, we make all these decisions in multi-professional teams. I would never make these decisions independently of my team, because the perspective they bring can help me to understand things that I am not seeing”.”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 28/1/25; col. 74.]
Judges are marvellous, but a number of pairs of eyes in relation to this is better.
A huge number of questions were asked as to why the sponsor in the Commons and I—
Lord Falconer of Thoroton (Lab)
Will the noble Baroness let me finish? I am sorry but I am not going to take interventions at this stage. I will come to the noble Baroness in a moment, but I think I should make this argument in full.
The argument is that we made the decision to change from the judge, which I initially favoured, because of pressure and advice from the Ministry of Justice. That is not right. The change was made because the evidence was very clear, and I accepted that people are better off and it is safer if one does it with a multidisciplinary panel.
What are the reasons the noble Lord, Lord Carlile, has advanced for saying that we should have a court-based, not a panel-based process? First, he says that the court has experience of making analogous decisions. The type of decision he is referring to is the one the noble and learned Baroness, Lady Butler-Sloss, referred to: the Bland case, and whether people in a permanent vegetative state should have their life support turned off. That would be of assistance, but what we are proposing in the Bill is a panel, supervised by a commissioner, devoted completely to the question of whether assisted deaths should be permitted. Yes, we would get the benefit at the very outset of the analogous decisions the court has made, but here we would have a panel devoted only to that issue, and which is bound to become more experienced in it than the courts, which are rightly dealing with a whole range of things.
Secondly, it is said that the courts would give a reasoned judgment. As was pointed out in the debate, there is a requirement in paragraph 9 of Schedule 2 to the Bill that the panels give reasons in writing, and that will give rise to a body of decisions being made.
Thirdly, it is said that the court is a court of record. Yes, it is a court of record, but the key thing is, who is best at making the decision? Is it better to have just a judge, or an experienced legal member, a psychiatrist and a social worker? I do not think in all honesty that the fact it is a court of record will make any difference to that.
Fourthly, it is said that you can appeal to the Court of Appeal. We are talking here about people who want an assisted death. We want a safe process; we do not want an overengineered process. In my respectful view, the idea that you have to go into a system that carries with it appeals puts too much of a burden on the people.
Fifthly, it is said that the judges have a special respect in our system, a point made by the noble and right reverend Lord, Lord Harries. The key thing is not whether the judges have respect but whether our system of assisted dying will carry respect. This is a better way of making the judgment; that is why I support it.
A final point made by the noble Lord, Lord Pannick, who raised it and said it was the answer—it may have to do with the fact that it is a court of record—was that the courts have discovery powers et cetera. Yes, they do, but if the panel feels that there are areas that it is not getting to the bottom of, then of course it will not be satisfied and cannot give the certificate. For all those reasons, the panel is better than the courts. That is why the decision was made.
I will now answer the question from the noble Baroness, Lady O’Loan; I apologise for not answering it before.
Baroness O'Loan (CB)
I thank the noble and learned Lord. The question I wanted to ask him was connected to him telling us about panels and judges. As I understand it, the three members in the legislation he has presented to the House have expertise in their own area of competence. Does he accept that the benefit of the system devised by the noble Lord, Lord Carlile, is to bring many more disciplines—medical disciplines in particular—into the agenda? In particular, the judge would have the right to sit with the doctor, and there would be a psychiatrist’s report on the capacity et cetera of the individual, so the psychiatric issues would be taken care of. The amendment from the noble Lord, Lord Carlile, proposes something wider than that which the panel could provide.
Lord Falconer of Thoroton (Lab)
I do not accept that. The position is in relation to the panel. If it wants a report from a doctor, it can get it. I understand the noble Lord, Lord Carlile, to be saying that the court can ask for all these things—which of course it can—and if it thinks they are appropriate, it will do so. I assume it will not ask for them when it does not think they are necessary to the resolution of the issues. The panel can do the same and, if it does not get them, just like the court, it will have to say no.
Baroness Berridge (Con)
In relation to the panel, as a non-medic I understand from my time on the Select Committee that “multidisciplinary” has a particular meaning within healthcare that the witness to the Commons was relating to, so it is not quite the same issue. Is the noble and learned Lord not concerned that only two of the three representative bodies of the panel came and gave evidence to the Select Committee, and the British Association of Social Workers and the Royal College of Psychiatrists are not supporting the Bill, regardless of what their view might be on the principle? Although the noble and learned Lord is obviously very well persuaded by the evidence, the professional bodies that would sit on this panel are not yet persuaded.
Lord Falconer of Thoroton (Lab)
The royal colleges are neutral on the principle. The Royal College of Psychiatrists has said that it is worried about the burden on psychiatrists, not by reference specifically to the panel—though it comes into what it says—but in relation to some of the capacity assessments it has made. I do not think it will be difficult to find, for the purposes of the panel, people who have the appropriate qualifications in psychiatry to sit on the panel. People who have had some experience and are maybe working part-time, for example, will be able to do it—so I am not concerned about the absence of people who could do it.
Baroness Nicholson of Winterbourne (Con)
Does the noble and learned Lord not accept that his particular panel make-up disregards deafness, which is probably the largest disability in the whole of the United Kingdom? Some 19 or 20 million people are deaf to different degrees. The issue is very underrepresented in this House, oddly enough, although a large number of Members suffer from deafness. It is also particularly badly treated in the National Health Service, as we have seen in the recent report that one in 1,000 babies is born deaf and the issue is not addressed as it should be. Why does he think his panel will be any better than the proposal by the noble Lord, Lord Carlile? Presumably a judge would consider every aspect of a patient before making any decision. I am concerned that this panel attitude is quite irrelevant to those of us who are deaf—nearly 20 million British people are deaf—and to the very large number of people who do not speak English.
Lord Lemos (Lab)
I think the noble and learned Lord can respond to the noble Baroness’s point.
Lord Falconer of Thoroton (Lab)
I am not sure, particularly given the way in which the noble Baroness addressed the issue at the very end, that this is a point about panel versus judge. I would expect a judge to be experienced and able to deal with somebody who is deaf, and if they are not able to, they should be. Equally, I would expect a panel to deal with that in the same way. In all honesty, that was not a factor in determining whether panel or judge was better. Both would have to deal with that.
Baroness Nicholson of Winterbourne (Con)
My question was about deafness. There is no social work relevance to deafness. The noble and learned Lord’s panel is very specific.
Lord Falconer of Thoroton (Lab)
I hope I have given a satisfactory answer in relation to that.
Baroness Scotland of Asthal (Lab)
I declare an interest as a former deputy High Court judge and recorder. Does the noble and learned Lord not think that one way of curing his concern in relation to the multidisciplinary nature of the assessment would be for the assessment to be made earlier in the process and the evidence made available to the court, which could then better make a determination?
Lord Falconer of Thoroton (Lab)
Yes, I agree very strongly. This is a different use of the phrase: “multidisciplinary team” relates to the people treating the person. The more input they can have, the better. With respect to the noble and learned Baroness, I am not sure that bears on the question of whether panel or court is better because, whichever route is taken, one would hope that, at the stage where either the panel or the court is making a decision, it would have access to what the multidisciplinary team treating the patient thought about the patient.
Baroness Scotland of Asthal (Lab)
My Lords, if I may just assist the noble and learned Lord, the reason I think it relevant is that if that multidisciplinary assessment is available, and the court has that evidence available to it, together with any other assessment made by individual additional clinicians, the court can then make an informed assessment as to which method or approach it is minded to deal with, particularly when it does not necessarily agree with the evidence of one particular clinician from whom it has had the benefit of hearing. That is the reason I think it might be useful.
Lord Falconer of Thoroton (Lab)
I do not understand that proposition. It seems to me that the panel is able to take that into account just as well as the court—and, indeed, I think the panel would probably be better able to assess it. I am not sure I accept that proposition.
Baroness Grey-Thompson (CB)
My Lords, when this was debated in another place, that argument was made, and the Association for Palliative Medicine wrote formally to correct the record. In the statement, the APM clarified that the Bill does not align with the standard multiprofessional team decision-making process. The noble and learned Lord mentioned Dr Cox, who argued that the Bill’s model of two independent doctors working alone was inadequate, and that assessments should be carried out within the multiprofessional team model to strengthen the Bill. On that discrepancy, the APM and MPs noted that although the Bill introduces a panel of psychiatrists and social workers at the end of the process, that does not equate to multiprofessional assessment at the beginning—the assessment stage that Dr Cox was advocating for. That is really important. The Association for Palliative Medicine wrote formally to correct the record following the debate in the other place. If the noble and learned Lord does not want to respond to that point right now, I am very happy for him to write to me, but I think it is important for that to be on the record in this Chamber, as a by-product of what happened in another place.
Lord Falconer of Thoroton (Lab)
The reason why I quoted Dr Cox of the Association for Palliative Medicine was that she specifically said that it is better to approach this issue through a multidisciplinary process rather than by placing it on the shoulders of the two doctors and the High Court judge. The panel approach reflects that approach. That is why I quoted it. I do not think I need to write to say that. It was part of the evidence that was saying, “Have not one pair of eyes to judge, but three pairs of eyes”.
Lord Falconer of Thoroton (Lab)
I have had 21 minutes, so I have to get on and just deal very quickly, if I may, first with the costings. The only costings that have been done have been by the Government. The Government’s costings have been done in relation to the panel but not in relation to the High Court. I have no desire for a High Court costing to be done. If others want it, they can press for it, but I am not asking for it, nor would I expect it from the Government. The impact assessment has been done as it is, as part of the Bill. I am against the proposition to change the provision in relation to a panel, so I am not pressing for any such panel.
I will just get on and deal with the less prime points. Amendment 116, which I think was tabled by the noble Baroness, Lady Coffey, says not to use the Mental Capacity Act. I am against that for the reasons I have already given, which is that we should have one system for all these situations. Amendment 426, tabled by the noble Lord, Lord Carlile, suggests that we should use the criminal standard of proof for capacity. I am against that for the reasons given by the Minister.
The noble Baroness, Lady Coffey, in Amendment 426A, says that the panel should not sit in private. The Bill states:
“Panels are to determine referrals in public; but … 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”.
If you are dying and want this last discussion with a panel to be in private, you should have that right, in my respectful view. I am strongly against the proposal that she makes. Amendment 426B, tabled by the noble Baroness, Lady Coffey, would require that the person attends in person, which is not understanding of the fact that some people would not be able to attend in person for obvious reasons. Amendment 120A, also in the name of the noble Baroness, Lady Coffey, would exclude legal aid. For the reasons that the Minister gave, I do not think that that is possible.
Amendment 37 asks why Clause 1 only refers to Clauses 8 to 30 and not to the whole Bill. The reason is that Clause 1(2) sets out the steps that have to be taken to satisfy the circumstances of the Bill and those are only in Clauses 8 to 30. The other parts of the Bill are on things such as keeping records and so on.
I think that I have dealt with all the substantive points. For the reasons I have given, and without any lack of respect for the noble Lord, Lord Carlile, who presented it very clearly, I am against the proposal that he is making.
Lord Harries of Pentregarth (CB)
My Lords, could I just put one thing to the noble and learned Lord? Granted that the panel and the court-based system have a great deal in common, six months to live and mental capacity are clear and settled decisions—
Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)
Could I ask the noble and learned Lord, Lord Falconer, to write to the noble and right reverend Lord about those things? We have had enough explanation from the noble and learned Lord. We need to move on to the noble Lord, Lord Carlile.
Lord Taylor of Holbeach (Con)
My Lords, I think that part of the difficulty is that we are trying to find a pragmatic method of discussing this complicated Bill. There are some 80 amendments in this particular group and it is impossible for the noble and learned Lord, Lord Falconer, to give justice to all of them in 20 minutes. He has talked in general principles, but he must be aware that one of the difficulties, which connects with yesterday afternoon’s debate—I was not here for it, but I saw it on television—is that he is not satisfying the need of explanation for those who are articulating points of view. Taking just a little bit longer may well be a shortcut to getting the Bill done. I feel that part of the difficulty, having listened to a lot of the debate on the Bill, is that the noble and learned Lord is desperately keen to keep moving. I understand that, but there are points at which he can stop and explain, perhaps with a bit more sympathy to the points that have been made by other Members of the House.
Lord Falconer of Thoroton (Lab)
Can I answer what the noble Lord, Lord Taylor, whom I greatly respect, has said? I have answered in some degree of detail the main substantive points and I believe that I have dealt with them in a way that is appropriate for Committee. One of the things that one has to do in Committee is focus on the things that really matter and avoid the other things—that is what I have done. I am open to anybody coming to see me. I started this process by writing to individual Peers to say, “Come and see me to raise anything you’ve got.” If there is anything that they want to talk about, I am more than willing to talk about it. However, I very much believe that I have answered in detail the substantive application made for an amendment.
Lord Carlile of Berriew (CB)
My Lords, I am very grateful to everybody who has taken part in this debate. I hope your Lordships would agree that, although this debate has taken over three hours, it has been conducted in precisely the spirit that was discussed in the short debate yesterday and that it has justified taking that time. I said yesterday that I thought we should move more quickly in this process and I believe we will be able to do so in the future. This has been an example of doing so on a very important subject.
May I express my grateful thanks to both Front Benches for the way in which they summarised their particular interests in this debate? I thought both were extremely helpful. For those who have seen my noble kinswoman, the Minister, during the year she has been here, I think they will be reassured and understand that she is perfectly capable of erecting Chinese walls that put the Great Wall of China to shame.
A point that particularly caught my attention was made by my noble friend Lord Empey. He happens to be a very valued member of a Select Committee of this House that I chair and I can confirm that he is an expert in labyrinths. He is an expert in finding his way out of labyrinths and it is just possible that, from time to time, he is quite good at making labyrinths longer— I hope he takes that in good heart. He raised a question about whether, as he put it, there should be a “special chamber”. It occurs to me that, given that the purpose of my amendments is to ensure that this is a judicial process that falls into our judicial architecture, there may be room for the sort of discussion that we talked about in yesterday’s debate with the noble and learned Lord, Lord Falconer. One might be able to find a hybrid form of what the noble Lord, Lord Empey, and I have proposed that falls within the legal, judicial architecture.
Lord Lemos (Lab)
My Lords, that group took more than three hours, as the noble Lord, Lord Carlile, said. It is a very important group, and we knew it would be a long one, and it does deal with one of the issues at the heart of the Bill. I am particularly grateful to the speakers who did not take all their allotted time, and I know many did not. We did all agree last night that the Bill would need more time. The noble and learned Baroness, Lady Butler-Sloss, said then that we might make more progress if people could avoid repetition. I realise that I am at risk of being accused of repetition myself, but could I reinforce the noble and learned Baroness’s message about avoiding repetition, without repeating it?
Amendment 26
“(e) has had their needs fully assessed by a multiprofessional specialist palliative care team, and appropriate care provided to the extent necessary to enable them to decide whether such care would affect their wish to end their life,”Member’s explanatory statement
The amendment ensures that all terminally ill persons seeking to take up assisted dying support have had their needs assessed by a multiprofessional specialist palliative care team and met to the extent necessary to enable them to decide whether such care would affect their wish to end their life.
Baroness Finlay of Llandaff (CB)
My Lords, we move on to a group of amendments that are extremely important and, in some ways, complementary to those in the previous debate. Autonomy is the lodestar of the Bill. The amendments in this group are designed to reinforce and respect that patient autonomy; they do not block access to an assisted death but aim to ensure that people have accurate information to make informed decisions. For a decision taken, people must have three things, whatever that decision is: accurate information, the capacity to make the decision and to be making it voluntarily. Those are the fundamentals of respecting a person’s autonomy.
These amendments are to ensure that the patient has the opportunity to know what is available. They do not force a patient to be looked after by a palliative care team, and they do not stop a patient from proceeding with an assisted death. There is clear evidence from studies that underserved groups have poor access to palliative care, and there is poor understanding generally of what palliative care is and can do. General doctors often do not understand palliative care, so how can an assessing doctor give good, accurate information to a patient if they themselves have a deficit in their knowledge? It is worth noting that in a five-year medical training course it has been estimated that the average time spent on learning about palliative care is only 20 hours, and only recently has palliative care come into the finals questions. So there are thousands of doctors out there with almost no education in palliative care.
Many patients and the public do not understand palliative care either. A significant number think that assisted dying is palliative care or hospice care, while others think that palliative care simply hastens death. Sadly, misunderstandings are widespread. When patients access appropriate specialist palliative care, the desire for a hastened death is often alleviated, and they experience an improvement in quality of life that they never believed possible. But that does not apply to everybody. The role of this amendment is simply to give everyone the best opportunity to access the care that they need, whether or not they continue to pursue an assisted death and whether or not they decide to take up the opportunities that may be revealed by such an assessment. The processes relating to an assisted death can occur in parallel with, but not as an integral part of, palliative care provision.
There has been concern that palliative care teams could not cope with a sudden influx of referrals, but currently any palliative care team prioritises a patient who is in such despair that they want to die. That is basic care, a core part of the job. Palliative care will not turn its back on patients who are in despair; teams want to deliver gold standard care.
In Oregon, 92% of assisted death patients are recorded as being enrolled in hospice services. Palliative care needs assessment gives patients options to make an informed decision. The patient may conclude that there are other options that they have not been aware of and want to try, or that they simply want to pursue an assessment for an assisted death. Evidence from Canada has shown that some patients seeking referral for medical aid in dying are actually asking for palliative care; they seek assisted dying as a way in which to get their problems sorted out.
A palliative care needs assessment must always be non-judgmental. I stress that this is not a bad faith amendment; it is to ensure that patients know what they could have and are making an informed choice, respecting their autonomy.
For every decision in life, we want the best information, whether it is knowing that the house we are buying is not full of dry rot or that a car or sales loan has not been mis-sold to us. The Bill’s processes must ensure that applicants are fully informed. This is not a costly option. There is high-quality evidence that specialist palliative care reduces the chance of dying in hospital and increases the cost effectiveness of home and hospital-based care for those with a poor prognosis.
Therefore, the adequate provision of services to ensure that every patient seeking an assisted death can have their needs assessed will decrease, not increase, costs to the NHS. Home specialist palliative care is associated with reduced costs of nearly £8,000 per person and increased quality life-adjusted years. In the hospital sector, costs also reduce but only by about £6,500 per patient, again with increased quality-adjusted life years overall. Provision of specialist palliative care to ensure, wherever the patient is, that they have the option of accurate information with which to make their decision has been estimated to reduce system expenditure by over £800 million per annum.
Unfortunately, I fear that the Bill’s proposers have rather misunderstood multidisciplinary care working, and I am afraid that my friend and colleague Dr Sarah Cox, who I respect enormously, has indeed been slightly misquoted. As the noble Baroness, Lady Gerada, said in our last debate, modern care is delivered by multiprofessional teams, which come together around an individual patient, comprising doctors, nurses, physio, occupational therapy, social work, et cetera, depending on the needs of that individual patient. Patients often communicate more readily with the lowest paid in the team, such as the carers, to whom they feel they can talk freely, as there is not the power differential that exists between patient and doctor. That multidisciplinary and multiprofessional team reviews and monitors things together. That is quite different to bringing a panel of three different disciplines together specifically to make one decision and then move away from it without that continuity of knowing people. It is important that we are clear what we mean in clinical care.
In the hospice, I used to always have the care assistants as part of our weekly multidisciplinary review of patients. They had valuable insights and much to contribute. A mandatory assessment would ensure that people knew what was available. It is up to the person to decide whether to try one route or another.
Why make this mandatory? Unfortunately, the amendment to the Health and Care Act 2022, which I pushed for very hard and was glad to see come in, and which stated that palliative care is a core service, has not resulted in commissioners adequately commissioning services, in part because they themselves are ignorant of what to commission. If assessment is mandatory, commissioners must make sure that patients seeking an assisted death have a service that can provide a proper needs assessment and give them information. The patient can choose whether to try or not try.
I know that my noble friend Lady Hollins has an amendment about this, and there is indeed a definition in an amendment that has also been tabled in relation to what specialist palliative care is. To try to summarise that very quickly, it is about having the appropriate specialist skills in every setting, with advice available at all times of the day, every day, equipment and medication available, and a point of contact so that people can go back and explore and discuss things as they think more about the complexities of their situation, and they can access the support that they need.
As my colleague, Dr Rachel Clarke, pointed out when she gave evidence previously, the moment of people having a diagnosis of severe life-limiting illness is their time of peak vulnerability. Is the patient’s request for an assisted death a knee-jerk reaction to a new diagnosis that terrifies them? Have they been plunged into a suicidal depression that might pass? Might a desire to die be replaced by a desire to live when they receive the patient-centred care that they need? Is a malign partner lurking in the background, putting insidious unvoiced pressure on the person to believe that he or she would be better off dead? In New Zealand, we hear about patients seeking an assisted death when they are clearly caught up in a cycle of despair and hopelessness, while actually they want and need to know what is available but often the services are not there for them.
I hope that my colleagues who have tabled amendments in this group will speak to them, and I have tried to lay out a background template for why the mandatory ability to have an assessment of need is important. I beg to move.
Lord Carter of Haslemere (CB)
My Lords, I speak to the six amendments in my name in this group. I do not need to explain what they say because they are all replicated by other amendments in the group, so I can be very brief. All these amendments are intended to ensure that a person seeking assistance to end their life first be referred to a registered medical practitioner who specialises in palliative, hospice and other care for the purpose of a full assessment—the operative word being “assessment”, not necessarily treatment. The Bill currently requires merely that a medical practitioner “offer” a referral to a specialist palliative care practitioner. This is inadequate in relation to such critical decisions as choosing whether to live or seek a state-assisted death.
It is important to note that all these amendments are based on evidence. In countries with assisted dying—Oregon has been referred to—experts say that patients who request help to die often change their minds if provided with proper palliative care. Yet the Government’s impact assessment confirms that fewer than half of dying people have input from a specialist palliative care team in the last three months of their life. It seems hard to dispute the case, therefore, for the Bill requiring that persons seeking a state-assisted death be given a full palliative care assessment, with the opportunity to choose to experience modern specialist palliative care at its very best. It is about doing everything humanly possible to keep people alive with as little pain and suffering as possible, and giving priority to life over death wherever possible.
Recalling our debate yesterday about which amendments the noble and learned Lord, Lord Falconer, might be prepared to accept, the amendments in this group are, like the previous group, pivotal to the decision a dying person will have to make if this Bill is enacted. It would save much time on Report if the noble and learned Lord could indicate now whether he can accept one or more of them. The Government would then have a responsibility to ensure that adequate palliative care specialists are available.
I recall, as I did at Second Reading, the wise words of the Minister, the noble Baroness, Lady Merron, who, in answer to an Oral Question in this House on 4 September 2024, said that the Government’s
“commitment is to ensure that any debate on assisted dying … takes place in a broader context of access to high-quality palliative and end-of-life care”.—[Official Report, 4/9/24; col. 1151.]
The amendments in this group would help to ensure that a person at least has a real choice of whether to access that palliative and end-of-life care or whether to seek a state-assisted death.
Baroness Brown of Silvertown (Lab)
My Lords, my Amendment 51 and others would require the providers of assisted dying services to ensure that all persons seeking such services have discussed the range of end-of-life options available to them with a palliative care specialist.
The Government and proponents of the Bill have promised that end-of-life care will not suffer in order to accommodate assisted dying. I have significant reservations about whether this would be possible, and I fear a push factor, particularly for those who are vulnerable, those who are without family and, to be absolutely frank, those who are poor and cannot fund their own care. When done right, as we know, palliative care can provide a dignified end of life and alleviate the desire to hasten one’s death. Equitable access to options for end-of-life care must be a cornerstone for this Bill, which is why I have laid these amendments. I want to ensure, as far as humanly possible, that all people have and know that they have equal access to palliative care, to treatments that may extend life and to specialist teams to manage the symptoms and pain and to provide dignity.
This Committee must accept that equal access to these services, as for many public services, is not guaranteed and is rarely delivered. I give just one example, due to time. A Liverpool resident with the terrible asbestos-related mesothelioma cancer can undergo a specialist injection that has a high chance of abolishing the pain, whereas a resident of the Midlands, who may be unfit to travel to Liverpool, simply cannot because there are so few specialists trained to take this work on. Therefore, access is obviously limited.
Clauses 5 and 12 require doctors to have discussions about disease prognosis, treatments and symptomatic alleviation with patients. Clause 5 includes an offer to refer them to a specialist. Although these are important discussions, which must be had, they have to be conducted by somebody properly trained and experienced in such matters. For conditions that are specialist care cases, such as motor neurone disease, most doctors will have minimal involvement in the management of that condition and will likely not have the skills and training to adequately fulfil the duties that the Bill places on them. A specialist referral is absolutely necessary to that ensure patients are able to reach an informed decision about their care with somebody who properly understands the disease, how that disease will progress and what can be put in place to alleviate their distress and pain.
A person seeking assisted dying will be worried about their future, losing their independence and dignity and placing a huge burden on their families. A dedicated palliative care specialist would have the expertise, skill and training to provide the highest level of information and support, tailored to the individual needs of each patient, and have specialist knowledge of the condition that the patient is experiencing. Clause 1 requires that a person
“has a clear, settled and informed wish to end their own life”.
I believe that you can ensure a settled and informed wish and reach an informed decision only after properly exploring all available care and treatment options with dedicated palliative care specialists and having those options available to you. My amendment would therefore create a duty on all people involved in the provision of assisted dying services to ensure that those discussions have occurred, covering care options including symptom management and home care provision.
I welcome the amendments tabled by other colleagues that would ensure a dedicated palliative care assessment is part of the assisted dying process and I believe that my amendment can work alongside theirs. My amendment would also cover consultations with palliative care specialists that occur prior to a person seeking assisted dying, providing they cover the criteria outlined in the amendment. You can reach a clear, informed decision to end your own life only after having the advice and support to truly be able to weigh your options. That guarantee should absolutely be in the Bill.
Baroness Hollins (CB)
My Lords, when I first read this Bill, I realised that there was something important missing—a first stage, if you like. This group of amendments is probably one of the most important to address before the Bill can really make progress. Ther Bill, in its drafting, has perhaps failed to recognise the provisions of the Health and Care Act 2022, which my noble friend Lady Finlay referred to, with regard to the new obligations on integrated care boards to commission for the palliative care needs of their local populations.
There are several amendments in my name in this group. I have also added mine to my noble friend Lady Finlay’s amendment. The most important amendment is Amendment 221, and I will try to explain some of the rationale. The amendments are intended to ensure that specialist multidisciplinary palliative care is a mandatory, properly resourced and integral part of any assisted dying pathway. The central purpose is quite simple: it is that no person should progress towards assisted dying until their palliative, psychological and wider social care needs have been fully assessed and understood and, where appropriate, addressed. The medical royal colleges have endorsed this request.
Not all doctors are trained or equipped to provide comprehensive information about prognosis, symptom control or the full range of palliative care options at the end of life. This is not the remit of general practitioners or general physicians, nor should such complex and sensitive discussions be taking place in routine medical settings. For that reason, I disagree with the preliminary discussion clauses and the clauses about first and second declarations in the Bill as currently drafted. Instead, I propose that once a terminally ill person requests an assisted death under this Act, they must be referred for
“a multidisciplinary specialist palliative care assessment”
alongside a psychological assessment within established palliative care services. Given the urgency that often accompanies such requests, this assessment should be completed within seven days of referral. To ensure that any subsequent decision is genuinely informed, the individual must then be offered access to appropriate palliative care and psychological support
“within 48 hours of the assessment being completed”.
A person should not be eligible to proceed until their needs have been assessed, and the treatment and support options have been made available. That is why I propose that, before an application can proceed, there must be written confirmation from a consultant in palliative care medicine that all relevant specialist palliative and end-of-life care options have been discussed, offered and, where appropriate, tried.
Medicine routinely works in this careful, stepwise manner. It is entirely consistent with good clinical care that evidence-based palliative care should be fully explored before considering the irreversible act of ending a life. I have heard discussion in the media suggesting that these amendments would mean that people would be forced to have palliative care against their will. No, that is not their intention; the intention is twofold. First, it is to make sure that patients can make an informed decision. Secondly, it is to ensure that specialist palliative care services are available for people who want them, and that people are not choosing an assisted death because the NHS is not commissioning for the palliative care needs of the population.
Obviously, specialist palliative care itself needs to be properly defined, funded and made universally available and accessible. It is far more than the prescription of high-dose medications at the end of life. It is an active, multidisciplinary approach that supports patients and families at home, in hospital, in care homes and in hospices. That is why defining specialist palliative care, as set out in one of the amendments before us, is so important.
At present, access to such care is inconsistent and heavily dependent on charitable funding. Before introducing assisted dying on a national scale, we must ensure equitable access to high-quality specialist palliative care across the country. As part of the multidisciplinary palliative care assessment, I propose that every individual applying for assisted dying should be considered for NHS Continuing Healthcare through the fast-track funding process. This is an existing, well-established process, although perhaps not well understood within primary care or perhaps even within your Lordships’ House.
Continuing healthcare provides fully funded health and social care support, including assistance with medication, mobility and activities of daily living, but it can be slow to arrange. However, the fast-track pathway exists precisely to ensure that people with rapidly deteriorating or terminal conditions can access this support within 48 hours of their request. It works in practice. It is already there; the architecture already exists.
This can make an enormous difference, enabling people to choose their place of care, arrange nursing support, secure equipment or home oxygen, and relieving families of both emotional and financial burdens at a critical time. Encouraging fast-track access to continuing healthcare within the Bill would ensure that individuals receive timely, holistic support and are not driven towards assisted dying by unmet care needs. Furthermore, patients approved for fast-tracked continuing healthcare funding are more likely to have an accurate prognosis of six months or less. Taken together, these amendments would place specialist palliative care where it belongs: at the centre of end-of-life decision-making, ensuring dignity, compassion and genuine informed choice.
Baroness Lawlor (Con)
My Amendment 178A would require that those who are seeking assisted suicide are referred to a consultant physician in palliative medicine, who will assess them fully and draw up a plan for care. The Bill recognises the importance of patients knowing about palliative care and being informed on the choices, but in so weak a manner that these amendments have been tabled. Other noble Lords who have spoken in the group have very good amendments, which I support, to the effect that a patient would be referred to a specialist team in palliative care or a team which is dedicated to the treatment of this problem.
I propose that, in the first instance, the patient should see a consultant in palliative medicine, who will, one to one, discuss matters with the patient, assess them and prepare the care plan—not instead of the other people involved in the care team, but as the person responsible for doing that. My experience of medicine in other areas is that that is always the first call; care and treatment are then taken from the consultant physician who is responsible.
I say this because other people on a team may lack the detailed knowledge, experience and intellectual rigour of those who have reached the most senior level in their area, and who are responsible for training and leading a team of hospital doctors specialising in their subject. They see many hundreds of end-of-life patients each year. There is also a very good reason to believe that consultants are more likely to be independently minded and beholden to the virtues of their profession rather than the guidance of officials.
The amendment would require a full assessment, because only after an assessment can a patient know the options, as other noble Lords have said, and be in the best position to decide. Yes, it might put a strain on palliative care consultants, but in that case we need more such consultants. We should not put the Bill into effect without them. More broadly, my amendment stresses that, as we see in France and as other noble Lords have said, any move to assisted dying needs to be accompanied by more attention and commitment to palliative care.
Baroness Smith of Newnham (LD)
My Lords, I speak as a member of the Select Committee that your Lordships’ House decided to convene at the end of Second Reading, partly because, although I am sure that noble Lords participating in this debate and this legislation will be fully aware of the evidence we took, this debate is broadcast and followed much more generally, so I think it is useful to put on record some of that evidence. We took evidence on palliative care from experts, some of whom oppose the principle of assisted dying and some of whom do not, but almost all raised concerns about the adequacy of palliative care in the United Kingdom.
In particular, following the contribution of the noble Baroness, Lady Brown of Silvertown, I quote— I apologise for reading, but I am reading from our report—Dr Suzanne Kite, president of the Association for Palliative Medicine of Great Britain and Ireland:
“Throughout this debate, there has been a strong consensus that current palliative care provision is inadequate, with many services under threat, and that this constrains choice at the end of life. We advocate strongly for the Government to commit to a national policy to ensure universal access to palliative care that is protected from negative financial impact of the introduction of any AD—assisted dying—service, better safeguards for patients, care workers and organisations and a public awareness campaign about normal dying”.
My first question is to the Minister. I realise that she is representing the Ministry of Justice rather than the Department of Health, but I hope she may nevertheless be able to respond. When we discussed the business Motion in the Chamber yesterday, the noble Lord, Lord Stevens of Birmingham, said that the Minister in the House of Commons had suggested that the Government’s next information about the provision of palliative care would not come until after the assisted dying legislation had gone through Parliament. I think many people, whether or not they support the principle of assisted dying or support this legislation in principle, would feel much relieved if they could believe that palliative care was going to be more equitable across the country and that those in more deprived parts of the country would have the same access to palliative care as those in more affluent parts, because there is a disparity.
For many, there is a concern that the choice of an assisted death, which is what advocates of the Bill say they support, will not necessarily be an unconstrained one. If the choice were, “I have been offered everything, including state-of-the-art palliative care, and I still want an assisted death”, that would be quite different from the current proposals. Clause 5 says that the medical practitioner would need to make clear to somebody in a preliminary discussion all appropriate palliative, hospice or other care that is available. But if there is not adequate palliative care available—we know that 100,000 people are already dying without adequate palliative care—then the choice the medical practitioner is giving will not be a real one.
When I raised concerns with the experts who were giving us evidence on palliative care and whether this was a constrained choice or not, there was very much a sense from Dr Kite that she shared the concerns I had raised about the disparities of palliative care and that, for some people, there would not be a real choice. Her response was:
“I share your concern. Our members share your concern. This is fundamental to our position on the Bill”.
Professor Katherine Sleeman, who is also a professor of palliative care at King’s College London and a member of the Complex Life and Death Decisions group, who is not opposed to the principle of assisted dying, said that my point was
“exactly why the CLADD group has suggested that offering a referral to specialist palliative care is not enough. Everyone who says that they want an assisted death should receive a palliative care assessment, and that would go some way—not all of the way, but it would go some way—to addressing what we know about the inequalities in terms of access”.
In light of the evidence we received, I would be grateful to hear from the noble and learned Lord, Lord Falconer of Thoroton, how he would respond to the amendments in this group about palliative care. They seem to be fundamental to the concerns not just of people who might be opposed in principle to this Bill but of experts who really understand the detail. It is surely the duty of this House to ensure that any legislation passed really meets appropriate standards, and we should be very cautious about supporting legislation that does not ensure adequate access to palliative care.
Baroness Cass (CB)
My Lords, I will be brief, because many of the points have been made, but I would really like to make two points. My first point follows the comments of the noble Baroness, Lady Smith, about—I hesitate to use this term—“levelling up”. We know that there is a spectrum of provision available, not just in palliative care but in all the other aspects of care that a dying patient needs, as referred to in Amendment 221 in the name of the noble Baroness, Lady Hollins. I would love there to be the kind of wraparound care within the community that my noble friend Lady Gerada described, but for some patients that is not the case. So, specifying those components that should be available and making them available should be the basic right of every dying patient, particularly one who is carrying as onerous a decision as seeking an assisted death.
But I think the second, and equally important, point about this is front-loading the multidisciplinary assessment, and, ideally, having it clearly written down and held by the patient, which empowers the patient to hold that information and take it with them. Therefore, it facilitates the co-ordinating doctor, the independent doctor and the panel or judiciary process to have available that information from the team who know the patient best, so that they are not having to delay the process by scurrying around in hospital notes or seeking additional information late on in the process, when the patient will inevitably have made a decision, potentially with their family, and a delay due to missing information would be unbearable. So, front-loading is absolutely key to streamlining this process throughout.
Baroness O'Loan (CB)
My Lords, I have put my name to nine amendments in this group and I declare my interest as an unpaid trustee of a hospital which has a hospice attached to it.
We are very fortunate in your Lordships’ House to have among us distinguished doctors who have spoken with great experience and understanding of the need for access to expert palliative care when a person faces death from terminal illness. For many people, particularly those in care homes, such palliative care is simply not available. I think of my own mother, who died just three years ago and was in a care home, and for whom such care was provided either by the GP or by paramedics who came and administered morphine—that was not expert palliative care. Many people, if this Bill is passed, will be in exactly the same position as my mother, unless there is change to the current systems. Expert palliative care, as has been said, is unavailable in many parts of the country, and so it is not enough to know that expert palliative care could be available, it must be available. That is the most significant thing.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have added my name to two amendments in this case.
Lord Blencathra (Con)
My Lords, could we please first hear from those noble Lords who have tabled and signed amendments before the rest of us speak? I apologise if the noble Baroness is a signatory, but I did not think she was.
Baroness Fox of Buckley (Non-Afl)
I have my name on a number of amendments. I did not know that those rules applied—anyway, they do not.
I have added my name to a number of amendments from the noble Lord, Lord Carter of Haslemere, in this group.
In general, I am glad to support many of the amendments on palliative care in this group. The Bill asks us to accept that assisted dying is a medical intervention, albeit an irreversible life-ending one, which is something I am not entirely happy with. It seems obvious to me that there must be guaranteed input from the best-placed medical experts in end-of-life care: that is, palliative care specialists. That is essential for the informed consent of the patient.
I imagine and hope that the noble and learned Lord, Lord Falconer, is very sensitive to the importance of palliative care. I know that he is in the much-cited Demos Commission, which I will not bother quoting again, and I am hoping that he has not changed his mind. I think the noble Lord, Lord Carter, made a very important point earlier to the sponsor of the Bill about the number of amendments, for which we have all been chastised and finger-pointed at and tut-tutted at. I kept my patience last night, although my blood pressure did go up.
None the less, I genuinely think that the number of amendments could be really slimmed down if the sponsor of the Bill were to go through, for example, all the amendments on palliative care and say to us, “I accept the principle of this and I will come back with my own amendment” or what have you. We would then not have this issue. We are not an organised political grouping; people table amendments and add their names to them in good faith, which is what I have done, and they then speak in good faith. We are not trying to repeat things for the purpose of delaying the Bill but because we think that it matters and is important. That is what we are doing here.
On this group, and the concept of 10 important themes, we need an assurance that real choices will be offered to a patient with a terminal illness and they will be given the option of a palliative care assessment and, hopefully, then, possibly palliative care. That safeguard would really reassure us, and it is a key theme, and so on. One of the reasons why I say that is, under the Bill, GPs can mention palliative care to a patient. I am a great fan of GPs; they are fantastic generalists who do a good job. But very often they do not have all the expertise of a palliative care specialist in knowing how precisely medical intervention can improve a patient’s condition, or indeed change their will to live.
It is important for the Committee to note that research has shown that those who wish to hasten their own death often change their mind when they receive more information. Palliative care can mean that people who want to die then want to live, and that is important if we are going to talk about choice. It is possible that you might want to die, that you are determined you want to die in assisted death terms, having had your terminal diagnosis. But why is it that you want to die? That is the motivation behind the discussion in this group.
One of the things that happens is that many people are frightened and fearful, and one of the things they are fearful of is pain and terrible symptoms, which by the way are often graphically described by supporters of the Bill, and I think that they can scare people. It is the idea that your pain and symptoms cannot be controlled. When I talk to supporters of the Bill—some of my friends, colleagues and members of the public—they are completely compassionate in talking about how the Bill will help people who are suffering intolerably and in excruciating pain. None of us wishes that on anyone—or, indeed, on ourselves. It is a frightening prospect.
That is actually often a fear and a dread that the right kind of care can mean will not be realised. Patients are understandably frightened of being in that kind of pain, so they need to know that. Toby Porter, the CEO of Hospice UK, summed up the way I feel about this. He said:
“An outcome in which someone chose an assisted death because of a real or imagined fear that they could not get pain relief or other symptom alleviation, or because their family would not get support through their illness, would clearly be a moral and practical disgrace to any country”.
That is absolutely right.
We all know family and friends and so on who have died and who have had terminal illnesses. People will say that morphine is simply not enough to control the pain. That is the kind of thing that I would say, because I know nothing about medicine. So, it is a great relief to discover that palliative medicine resident doctors say that morphine is the tip of the iceberg for pain management. There are countless other options available, but to know this requires training and experience, which I have not got. When you are having a chat in the pub with mates—or indeed, when I was in hospital pumping in the morphine—it is good to know that somebody, somewhere, has got the experience. That is the palliative care specialist and every terminally ill patient should at least be offered the option to go to see one. This is a modest but meaningful addition to the Bill and I hope that the noble and learned Lord, in the spirit of listening, accommodating and compromise that we heard about last night, will make changes to the Bill accordingly.
There is also a question for the Government and the Minister here. The noble Baroness, Lady Smith of Newnham, explained this very well. In relation to the point made by the noble Lord, Lord Stevens, yesterday, it was a shocking revelation that the Minister responsible for palliative care said that the Government would not publish their modern framework until after the Bill had passed through Parliament. The noble Lord, Lord Stevens—
Lord Rooker (Lab)
With respect, he did not say that. The noble Lord, Lord Stevens, said it would not be done “in effect”, the implication being—I do not disagree with what the noble Baroness is saying—that the Government have given a date which is beyond when this is expected to be law. The Minister did not say, “We’re waiting until after the Bill”. The crucial words of the noble Lord, Lord Stevens, were “in effect”. He was very careful in what he said.
Baroness Fox of Buckley (Non-Afl)
I had thought I was implying that. I was not trying to imply some conspiratorial holding back; it is just that the noble Lord, Lord Stevens, said this was
“a dangerous reversal of the timetable we require”.—[Official Report, 8/1/26; col. 1416.]
That is the point I was really getting to. That is shocking: not because anyone is malignly behaving in this way but because the Government therefore need to commit to bringing forward that report, so it is available before we reach Report. I urge the Minister to reassure us that that is the case.
I will finish off by saying that the noble Baroness, Lady Brown of Silvertown, explained excellently that, for all of the importance of palliative care, hospices and so on, not everyone has equal access to them, which is well documented. I want to see that framework, because this is one of the chilling aspects of the Bill. For those of us who campaign to raise money for hospices, and who are desperately keen that palliative care is well resourced, to hear, as we heard earlier today, from the noble Lord, Lord Carlile, who stated baldly and perfectly reasonably that whichever choice we had in the previous group would cost a lot of money, makes me think, “Oh, spend the money somewhere else”.
Baroness Watkins of Tavistock (CB)
My Lords, I had not intended to speak on this group but, as the only nurse present, I want to say that nobody could deny the principles of the amendments that are being discussed today. They are right and proper in respect of good health care for the nation.
I have two concerns, however. One is that we have talked considerably about my medical colleagues, who are absolutely essential, but the vast majority of palliative care is delivered by specialist nurse practitioners. I feel that it is essential I draw the Committee’s attention to that. I want to read from the ICN Code of Ethics for Nurses, which says that nurses—and, I believe, other healthcare professionals—have four fundamental responsibilities, including
“to promote health, to prevent illness, to restore health and to alleviate suffering”.
What we are talking about today is alleviating suffering.
Lord Carlile of Berriew (CB)
My Lords, I will speak very briefly in relation to Amendments 186, 251 and 380, all of which were tabled by the noble Lord, Lord Hunt of Kings Heath, and two of which are supported by me. The noble Lord has asked me to give his apologies to the Committee; his wife has suffered an accident and he is, quite rightly, looking after her at home.
I know that the noble Lord, Lord Hunt, would have agreed, as I do, with many of the speeches that have been made to the effect that palliative care knowledge must be a prerequisite in any person’s decision-making. There have been many excellent speeches. I simply refer to two as examples: one from the noble Baroness, Lady Brown of Silvertown, and the other from my noble friend Lord Carter.
I represented a constituency in rural Wales that consists of 839 square miles with no general hospital. I absolutely take the point made by my noble friend Lady Watkins that a great deal of the skill and knowledge in relation to palliative care does not depend on there being a general hospital and can be supplied by nurses; for example, those who work in the area concerned. However, it is extremely important that nobody—whether they live somewhere remote, or they live somewhere populous but feel remote—should be deprived of a contribution from, and knowledge of, palliative care before ever making such a decision.
Baroness Wheeler (Lab)
My Lords, it is now 2.33 pm. I suggest that the Committee might like to hear from Front-Benchers now to ensure that we can conclude proceedings in an orderly manner, as planned, around 3 pm.
Lord Goodman of Wycombe (Con)
I have an amendment to which I have not yet been able to speak. Surely it is right and proper that those of us who have tabled amendments should be able to speak—especially where, as is true in my case, a noble Lord was a member of the Select Committee that examined this Bill. If the Committee will allow it, I would like briefly to quote some of the evidence that we heard.
Baroness Wheeler (Lab)
My Lords, the House generally rises around 3 pm on Fridays. To go beyond 3 pm, we would need the consent of the Committee.
Lord Goodman of Wycombe (Con)
I will be extremely brief but, as I said, I have tabled an amendment and have been waiting patiently to speak to it, if I may. My Amendment 394 would require the assessing doctor to arrange, and require the person to attend, a consultation with a palliative care specialist. Like the noble Baroness, Lady Finlay, who moved the lead amendment in this group, and the noble Baroness, Lady Smith, who spoke earlier, I was on the Select Committee. I will not repeat the evidence that the noble Baroness, Lady Smith, quoted, but I shall very briefly quote a little more, because the merit of having these Select Committee reports is that the House hears them.
The Royal College of General Practitioners said:
“It is essential to ensure that every patient approaching the end of life has access to high-quality palliative care”.
Secondly, Professor Mumtaz Patel of the Royal College of Practitioners said:
“What I really fear is that people are making sometimes these choices because of the lack of provision around good palliative care”.
Thirdly, Hospice UK, in its written evidence to us, said:
“Should the Bill progress, it is therefore essential that Government does far more to ensure equitable access to and provision of palliative care ahead of the introduction of assisted dying in practice”.
I could quote more, but because of the time constraint, I will come to a conclusion, as requested.
My conclusion is this. When the noble and learned Lord, Lord Falconer, gave evidence to our committee, he stressed at the start that the guiding principle of the Bill is autonomy, but autonomy is compromised if there is not real choice. To those who say that you cannot have real choice between assisted dying and palliative care because the palliative care is not available, my response is that that is precisely why this should have been considered by a royal commission, rather than being brought into this Bill, which has been so heavily criticised by two Select Committees of this House. However, we are where we are, this is the Bill as we have it, so I wait to hear from the sponsor of the Bill which of these amendments he is prepared to accept and, if he is not, which amendments he himself will bring forward in due course.
Lord Curry of Kirkharle (CB)
My Lords, I will be very brief. I have tabled two amendments, Amendments 183 and 184, which I shall comment on very briefly. They are designed to address the consistent concern within this group about the availability of palliative care. I shall put some data to this which has not been mentioned.
Every day, it has been estimated that between 250 and 300 people die without adequate palliative care, and more than one-quarter facing the end of life do not receive the care they require and deserve. This is a serious figure: the service is under immense strain. It is a lottery. It varies significant depending on where you live, with ethnic minority groups facing even greater difficulty in accessing the service. One benefit of debating this Bill is that it has brought renewed focus on the palliative care crisis we face. We cannot introduce an assisted dying option without first having addressed this serious concern and without having qualified palliative care advice available to those who may want to choose end-of-life options.
Amendment 183 is a further strengthening of the extremely important amendment from the noble Baroness, Lady Grey-Thompson, which would require quality palliative care to be offered to anyone who may be considering an assisted death, so that no one dies without having had this option. They would have to opt out—that is important. Secondly, Amendment 184 would require a definition of what constitutes a palliative care professional. This has been mentioned before and is extremely important. As a caring society, I believe we have a responsibility to ensure that patients can spend their final days being supported by a quality palliative care service, to relieve their suffering as far as possible. In short, no one should feel that they have no choice but to end their life due to gaps in the care system that we have failed to bridge.
Baroness Grey-Thompson (CB)
My Lords, I have five amendments in this group and I beg noble Lords’ indulgence—I will get through them as quickly as I possibly can. I have tabled Amendments 179, 182 and 185 and I am a signatory to Amendments 262 and 263. We have talked a lot about choice, and I believe that patients should have real choice, not partial choice, which is why I have tabled amendments that focus on specialist palliative care.
In another place, the Public Bill Committee accepted Amendment 108 in the name of Polly Billington requiring doctors to offer palliative care support, but this could almost be a case of, “This is what you could have won”. Without a guarantee of that support being made accessible, it does not offer patients the choice that they may be expecting. We have seen cases such as Canada, where they are told, “Yes, you can have this, but we’re not going to fund it”. If the Bill is to be the best in the world, we genuinely have to offer patients every choice that is available. On the previous group, we talked about cost. We were not able to cost this up, but if patients feel that they have no choice but to end their life, we are stripping choice away from them.
Amendments 179, 182 and 185 are in my name. The Bill does not require a medical practitioner to ensure the patient has access to specialist care for their consideration. During the conversations, I believe it is important that the patient is automatically referred to specialist care, ensuring that they have a real choice about the treatment that they may choose to have. It is very important that my Amendment 179 goes beyond what the Bill says, which is just offering to refer, and says they must be referred. Until you are in that situation where you have been given a terminal diagnosis, even if you have a family member who is going through it, it can be slightly different when it is you. How does a patient know about all the different treatment options unless they are given them in a way where they have the time to understand them?
Amendment 182 is about needs being assessed by an appropriate health or social care professional, and proposed new subsection (5A)(b) states that patients must
“be provided with palliative and end of life care in line with their assessed needs”.
We should not be doing this as a case of, “This is what you could have won”—I apologise, but I cannot think a better way of saying it—but we see that in other jurisdictions, such as Canada, you are told, “You can have it, but we’re not funding it”. That puts patients in a really difficult and impossible situation. Amendment 185 also refers to the specialist support that I think is important.
My Amendments 262 and 263 are amendments to Amendment 261 in the name of the noble Baroness, Lady Ritchie. They would add the specialist part of it. I am struck by the number of people I have spoken to who say they have had access to palliative care, but when I have interrogated it, it turns out that they have had access to some medical support. It might be a district nurse, but it does not necessarily mean somebody who has had specialist training. That is incredibly important.
I have lost both my parents. I thought my mother had access to good palliative care, and this is a sense of guilt that I and others feel. It was only when my father was dying that I realised what that could and should look like. They died eight years apart in the same hospital. You would have expected a similar level of treatment and support, but it was very far from that. My father was involved. He had a multidisciplinary team. There was lots of information that we were given time to understand. He was given time to understand what the situation might be.
One of my concerns with the Bill, and why it is so important that the specialist element is there, is that when we were having discussions about my father, we were told he was approaching end of life. We were told that it was very serious, we could let him slip away and that was what we should encourage to happen. That is what he was encouraged to think about. This is why I have real concerns with many parts of the Bill. At that point in my father’s life, he had had his foot amputated. He was told that he would not have a normal life and that he would not be able to live in the same house. It was the house I grew up in, and it was vaguely adapted. He was told it would not be possible to get a wheelchair. If there was one thing I could do for my father, it would have been to get him a really good wheelchair.
This comes back to one real issue I have with the substance of the Bill: how it could be misused by families who are not caring, loving or kind, or by doctors under huge pressure who encourage people to consider ending their life. It is important that the full gamut of options is available, so that individuals can make genuinely open choices about how they choose to end their lives.
Lord Harper (Con)
No, I am sorry, there is no requirement in the Companion that you can speak in a debate only if you have tabled an amendment. If we want to finish at 3 o’clock, we can either go slightly past 3 o’clock or we can stop at 3 o’clock and resume this group next week. I wish to make one point that has not yet been made and which I think is pertinent to the debate, and I believe I am perfectly in order doing so.
The point is this. Two Members have raised the valuable contribution made in yesterday’s procedural debate by the noble Lord, Lord Stevens of Birmingham—a man who knows what he is talking about on the NHS, as he ran it for a number of years—about the timetable for the Government to publish their modern framework for palliative medicine. He said that, at the moment, that framework is likely to be published after Parliament has considered the Bill, and he felt that that was the wrong way around. The reason that matters is that the Government have published a 10-year plan for the NHS, and nothing in that plan will significantly change the provision of palliative care in England.
We know that only about half the people who require specialist palliative care are able to get it, and that the Bill’s sponsor, the noble and learned Lord, Lord Falconer of Thoroton, believes—or believed and still believes—that good palliative care is a prerequisite for there to be assisted suicide, so I think it very important that the Minister answers the question and confirms that the Government will at least think about publishing the modern framework for palliative care before we get to Report on the Bill, so that this House can make a properly informed decision about the amendments before it on palliative care.
Lord Blencathra (Con)
My Lords, this is a self-regulating House, and that does not mean that a Government Whip can regulate who can speak and who cannot. I echo the point made by my noble friend. If the only way one can speak in these debates is to sign amendments, I know what to do in future.
I spoke for five minutes on the Friday before Christmas and said not a peep in the debate earlier today because it was not my speciality. I have been waiting here for two hours to make a speech on palliative care, and we seem to have been refused the right to do so because the Government Whip wants us not to say anything so that we can finish at 3 o’clock. I agree that we can finish at 3 o’clock—it is a simple matter for the House to adjourn and come back to polish off this matter next Friday morning—but it would be absolutely outrageous for noble Lords who have not had a chance to speak at all on palliative care to be refused the right to do so because the Government have imposed an arbitrary timetable on us.
Baroness Wheeler (Lab)
My Lords, it is not an arbitrary timetable. Many people have spoken on palliative care both at Second Reading and today, and I respect that totally. I am just saying that we need to respect the rules of the House to be able to adjourn. It is better if we finish this amendment so that we can start the next session with a new debate.
Lord Blencathra (Con)
Why must we finish this group and start the next session with a new amendment? In Committee, we often adjourn at 10 pm when we are half way through a large group, and we come back and polish it off the next day. Nothing in the Companion suggests that we are honour-bound or duty-bound to finish a group on a certain timescale. There is no problem with coming back and completing it then.
Baroness Hayman (CB)
The noble Lord is of course completely correct that there is nothing in the Companion. It is however difficult for many Members, when they have spoken in a debate, not to be able to hear from the Front Benches because they have arrangements for another occasion. I say gently to the last two speakers that we are not talking simply about the Companion; we are talking about last night’s decision and the mood and concern of the House that we make progress. It is very unfair to attack the Government Whips on this when they are trying to work their way through the input of last night’s decision.
Lord Blencathra (Con)
I respect what the noble Baroness has said, but it is also the case that it is disrespectful to Members who have prepared speeches, wishing to say something on palliative care, and who deliberately stayed quiet in previous debates so that they could make a point on a subject in which they are interested. They are now being deprived of the opportunity to do so.
Lord Kamall (Con)
My Lords, one reason I was reluctant to get up is that I believe very strongly that all who want to speak in these debates should be allowed to do so, but I ask noble Lords to please bear in mind that there are many others who may want to speak to the group, and we should not make Second Reading speeches. We should repeat what the Chief Whip reminded us of a number of times: please can we speak to the amendments and keep to the point? I will try to do so in summing up very quickly.
It is quite clear that these amendments relate to palliative care and whether people who seek assisted dying services are offered a meaningful choice—not just a choice in theory or on paper because it says it somewhere in the current version of the Bill but a very real choice. I pay tribute to the noble Baroness, Lady Finlay. When I was the Minister taking the Health and Care Act 2022 through the House, she came to speak to our officials in the Department of Health and Social Care who did not know as much as her. She held a teach-in. She did not have to do that, but many officials in the department said that they welcomed the opportunity to learn from such expertise. That is why I think it is important that we learn from all noble Lords, whatever their expertise. We should also thank everyone, especially specialists, currently working in the palliative care sector, which is under pressure.
This refers to a point made early on at Second Reading, when the noble Lords, Lord Hunt and Lord Stevens, said that we know how government works and how money is shifted around government. I do not want to argue about the merits of the Bill—personally, I am torn on it at the moment and am listening to the debates to make up my mind—but the noble Lords said that, if it goes through, the money has to come from somewhere. They feel, having been in government—one having run NHS and one having been a Health Minister—that that money will come at the expense of palliative care. I think that that concern is behind many of the amendments in this group.
It seems that the principle is that anyone who is making that decision, or who seeks that help, should make a meaningful choice, so I welcome the intent of all those who laid amendments in this group—I will not waste time by naming them all; they know who they are, and I thank them. But I point out to them that, as some noble Lords have said, palliative care is mentioned in the current version of the Bill. We see it in Clause 5, on preliminary discussions with registered medical practitioners; in Clause 12, on doctors’ assessments; in Clause 39, on codes of practice; in Clause 40, on guidance about the operation of the Act; in Clause 47, on reporting on the implementation of the Act; and in Clause 50, on review of the Act.
Surely, the crucial question at this stage to both the sponsor of the Bill—the noble and learned Lord, Lord Falconer—and the Minister, are whether they believe that these clauses in the current version of the Bill, as entered this House, address the concerns raised by the many probing amendments discussed in this group. That is the crucial question to the sponsor of the Bill and the Minister.
I have a further question for the Minister, and I know that it is a little unfair because it is probably more a question for the Department of Health and Social Care and perhaps the Treasury, so if the Minister does not have the answer to hand, we understand that she will write to us and place a copy in the Library. Are the Government confident that palliative care will be sufficiently funded so that those who seek assisted dying services are offered a real as opposed to theoretical choice on palliative care, so they can make a more informed decision, understanding what is available to them? I recognise that that may be a difficult question and may put the Minister on the spot, but I hope that she can go back to the Government and ask for an answer that can be shared with your Lordships.
I look forward to the answers from the Bill’s sponsor and the Minister.
Baroness Levitt (Lab)
I shall be as quick as I can on this group. My comments are restricted to those amendments on which the Government have major legal, technical or operational workability concerns.
I make one preliminary point very quickly at the beginning. Pursuant to Section 3 of the National Health Service Act 2006, the provision of palliative care is a statutory requirement. Integrated care boards must arrange for palliative care to meet the reasonable needs of their populations. This can be delivered through universal services, such as GPs and community nursing, or through specialist services where appropriate. Importantly, not all patients will require specialist palliative care.
With that in mind, I turn first to Amendments 53, 54, 64 and 221, in the name of the noble Baroness, Lady Hollins. While many people at the end of life may benefit from specialist input, this would normally be based on clinical judgment and patient need, rather than being a blanket requirement. The Committee should note a workability concern in relation to these amendments, in that they diverge from this person-centred and needs-based approach. It should also be noted that these amendments conflict with current NHS statutory requirements on the provision of palliative care.
Whatever the intention, the Government’s view is that the effect of these amendments as drafted is to exclude someone from eligibility for assisted dying if they refuse the additional assessments. Consenting to, or refusing, medical treatment engages Article 8 of the convention. The Committee may wish to note that these amendments could give rise to legal challenge on the basis that excluding that group of people from eligibility might not be justified under Article 2, or might amount to unjustified discrimination under Article 14. Any differential treatment would need to be objectively and reasonably justified.
Amendment 178A in the name of the noble Baroness, Lady Lawlor, would introduce an additional requirement on the preliminary discussion stage. Every person who wants to have a preliminary discussion with their doctor about an assisted death, irrespective of whether they are eligible for an assisted death, would have to be referred to a consultant physician in palliative medicine for a full assessment and care plan. However, preliminary discussion could take place before a person met all the eligibility criteria, and it could happen more than once. Therefore, including an obligation to refer anyone who has a preliminary discussion to a consultant physician in palliative care would create a significant resourcing burden. This appears contrary to usual clinical practice, whereby the involvement of such specialist services depends on an assessment of need and on the wishes and preferences of the person, rather than via a mandatory requirement. This amendment removes the patient choice in this decision. Finally on this amendment, the phrase
“for the purpose of a full assessment and care plan”
is broad and undefined.
Baroness Levitt (Lab)
I am not going to take any interventions, I am sorry. I am simply giving the Government’s view. We are very short of time. I apologise to the noble Baroness.
Baroness Levitt (Lab)
I am not taking any interventions.
These amendments create a further risk of incentivising the use of palliative care when it is not in line with the wishes of the individual. If a patient has relevant and available palliative care options, as with all treatment options, it remains their decision whether to pursue them.
Lastly, I turn to Amendment 832 in the name of the noble Baroness, Lady Hollins. The Government have workability concerns in relation to the amendment, which states that no person may access an assisted death unless a consultant from palliative medicine has
“confirmed in writing that all appropriate specialist palliative and end-of-life care options … have been discussed and, so far as reasonably practicable, tried or considered”.
This appears contrary to usual clinical practice, whereby the involvement of specialist services depends upon an assessment of need and on the wishes and preferences of the patient. As Amendment 832 excludes people from eligibility unless they have tried or considered particular options for care, this could give rise to legal challenge on the basis that it is not justified under Article 2 or 8 or may amount to unjustified discrimination under Article 14.
Baroness Levitt (Lab)
I am not taking any interventions. I would invite the noble Baroness, with the greatest of respect, to write to me, and we will deal with the matter then.
In answer to the noble Baroness, Lady Smith, who raised the issue, along with others, including the noble Lord, Lord Harper, I can confirm that the Minister for Care said this week that we will publish an interim report in the spring and a final modern service framework by the autumn. We want to get this right, so we are not going to rush it. I remind all noble Lords that this is not a government Bill; it is a Private Member’s Bill.
For completeness, as the Committee will be aware, none of the amendments in this group has had technical drafting support, so the way they are currently drafted means that they may not be fully workable, effective or enforceable, but the issues raised are a matter for Parliament to consider and decide.
Finally, I had almost forgotten—how could I forget?—the noble Lord, Lord Kamall. I am going to commit the noble Baroness, Lady Merron, to writing to him.
Lord Falconer of Thoroton (Lab)
My Lords, the relationship of palliative care to the Bill is very important and concerns both everybody in this House and people generally, so this is an important group of amendments. The amendments approach the issue in a number of ways. First, they approach it on the basis that, as the noble Baroness, Lady Finlay of Llandaff, said, in order to make a decision, you have to be properly informed. So there is an information aspect, which I will address in a moment. Secondly, there is an issue about whether, if you want to make an application for assisted death, you have to subject yourself to a compulsory assessment of some sort. Thirdly, there is the issue of whether you should be entitled to an assisted death only if you can access better and therefore more appropriate palliative care than might actually be available to you in the place in which you live. I will deal with each of those three issues, which are right at the heart of this group of amendments.
First of all, should you be properly informed? Yes, you most certainly should be properly informed of what palliative care is available to you, and the Bill should make that clear. I submit that the Bill makes that clear and does so in a reasonable way. I draw your Lordships’ attention to Clause 5, which says, on the preliminary discussion:
“If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must explain to and discuss with that person … all appropriate palliative, hospice or other care, including symptom management and psychological support, and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion”.
All the palliative care options that are available to you have to be discussed with you by the doctor in the preliminary discussion and, if you want, you can be referred to a specialist in palliative care as well. In addition to that, I refer your Lordships to Clause 12(2)(c)—I am grateful to the noble Lord, Lord Kamall, who took us through the provisions very helpfully—which says that each of the two doctors has to explain to the patient
“any available palliative, hospice or other care, including symptom management and psychological support”.
Therefore, there are three occasions on which the detail of the palliative care available to you is explained to you.
The noble Baroness, Lady Finlay of Llandaff, says that maybe they would not know the full detail. I recognise that that might be possible, but is it dealt with adequately in the Bill in terms of the information being provided? My own view is that it is. I do not think you need to make further provision as far as information is concerned. I am very happy to talk to any noble Lord in relation to that, but I think that this question has been addressed head-on and that a proportionate and sensible solution has been reached—proportionate even having regard to the fact that this is the most serious decision that somebody could take.
The second issue is whether, nevertheless, should you make a referral mandatory, it has to be done, you have to be examined and you have to have a meeting with a multidisciplinary palliative care team. I say no. I say that that is a choice, because the obligations of giving information are sufficient in relation to that.
The third issue raised by this group is that palliative care is patchy throughout the country; it is better in some places than others. I completely accept that. Everything that we do in relation to assisted dying should not lead to any reduction in finance for palliative care. I am sure that it will not. As those who have read the impact assessment provided by the Health Department will know, it makes it clear that the amounts of money we are talking about to fund assisted dying are in the tens of millions, which is not going to make a difference to the provision of palliative care in this country. I am not in favour of additional provision being made to provide palliative care for those who want an assisted death, nor am I in favour of saying that, unless the standard is the highest or a reasonable standard, you are not entitled to it.
As to the first of those two points—namely, that you are entitled to a higher standard if you apply for assisted death—the Minister said that that might well be contrary to the law, but put that to one side: we should do our best for everybody in relation to palliative care, and you should not get a special advantage if you apply for an assisted death. Secondly and separately, of course, nobody wants the absence of palliative care to be the reason you apply for an assisted death, but we have to give everybody this choice on the basis of the way the world is for them. It should not, for example, be available only in the areas where the best medical attention is available. As long as you know what you are entitled to, it should be available to everybody, not just those who live in Oxford or Cambridge or those who live close to St Thomas’ Hospital and other palliative care places.
The various amendments are all twists on those themes. My view is that we should make sure that they have the right information, and they should have access to a specialist who will tell them it if they want it, but I think the Bill does that. Although I am open to any discussion people want, I think we have done enough and addressed head-on these issues, so I invite the noble Baroness to withdraw her amendment.
Baroness Finlay of Llandaff (CB)
In the time that is left, I would have loved to respond to all the points, but I am not going to go through them in detail. I am deeply disappointed in the response from the noble and learned Lord, Lord Falconer, because it seems that he has not taken on board some of the really important points that were made. I believe that the amendment spoken to by the noble Baroness, Lady Brown of Silvertown, is the beginning of a very important statement. I believe that we must—not just will but must—come back to this on Report, with all those people who have shown an important investment in time to consider the needs of the individual who is in such distress that they want an assisted death. We cannot accept that some people are potentially going down that road simply because care is not available. With that, and with the commitment to come back later, I beg leave to withdraw the amendment.