Lords Chamber
10:07
Legislation: Space Industry (Indemnities) Bill – third reading
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Legislation: Space Industry (Indemnities) Bill – third reading
My My Lords, My Lords, I My Lords, I should My Lords, I should like My Lords, I should like to My Lords, I should like to notify the House of the retirement with effect from today of the noble Lord, Lord Hodgson of Astley Abbotts, pursuant to section one of the House of Lords Reform Act, 2014, on behalf of the House. I should like to thank the noble Lord for his to thank the noble Lord for his much valued service to the House.
Third Reading of the Space Industry (Indemnities) Bill Baroness Anelay of St Johns. My Lords, I beg to move that this bill be now read a third time.
Third Reading of the Space Industry (Indemnities) Bill Baroness Anelay of St Johns. My Lords, I beg to move that this bill be now read a third time.
10:08
Baroness Anelay of St Johns (Conservative)
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Baroness Anelay of St Johns (Conservative)
The question is that this bill be now read a third time, as many be now read a third time, as many of that opinion will say. Content, not content. The contents have it.
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I beg to move that the bill do now pass. I congratulate John Grady now pass. I congratulate John Grady MP, who introduced the bill in the House of Commons, where he secured all party support. And my Lords, I thank all those who supported the Bill in this House as it made its way through its Second Reading. Every member who attended the and participated in the Second Reading supported the bill. I am also grateful to the noble Lord, the Minister, for responding in constructive detail, both during the debate itself and subsequently in a letter to all Second Reading participants, in which he answered the detailed questions posed by my noble friend Lord Moylan, the opposition transport spokesman.
The minister's hard working experts, who may well be in the box today, I see no doubt had an expert hand in all that. My Lords, the bill amends the 2018 Space Industry Act to provide legislative certainty that spaceflight operators will not face unlimited liability when operating from the UK. As a consequence, the bill should strengthen investment in the UK's space sector. This is important, my Lords, for both the economic growth and the defence of the United Kingdom. My Lords, I beg to move.
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I beg to move that the bill do now pass. I congratulate John Grady now pass. I congratulate John Grady MP, who introduced the bill in the House of Commons, where he secured all party support. And my Lords, I thank all those who supported the Bill in this House as it made its way through its Second Reading. Every member who attended the and participated in the Second Reading supported the bill. I am also grateful to the noble Lord, the Minister, for responding in constructive detail, both during the debate itself and subsequently in a letter to all Second Reading participants, in which he answered the detailed questions posed by my noble friend Lord Moylan, the opposition transport spokesman.
The minister's hard working experts, who may well be in the box today, I see no doubt had an expert hand in all that. My Lords, the bill amends the 2018 Space Industry Act to provide legislative certainty that spaceflight operators will not face unlimited liability when operating from the UK. As a consequence, the bill should strengthen investment in the UK's space sector. This is important, my Lords, for both the economic growth and the defence of the United Kingdom. My Lords, I beg to move.
10:09
Viscount Stansgate (Labour)
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Viscount Stansgate (Labour)
The question is that this bill do now pass. we all know there's very important business ahead. But I do want to congratulate and thank the noble Lady Baroness Anelay for her work Lady Baroness Anelay for her work on this bill, and having brought it to the stage where it is poised on the brink of the statute book, and as someone who in the past has piloted a private member's bill through to its final stages. I know very well that the private member's bill procedure can indeed change the law of this country.
As to the bill itself, it literally changes one word from May to must. And as a member of your Lordships Committee on the UK's engagement with space, I'm not here to talk about our report. Interesting though it was act now or lose out. But the fact is that this bill will unlock future investment and a space economy for the future. And the UK could be very well placed to play a very active part in it. So in conclusion, I want to say that to thank all those involved and to say that I wish this bill very well in the future.
Well done. Well said. the future. Well done. Well said.
As to the bill itself, it literally changes one word from May to must. And as a member of your Lordships Committee on the UK's engagement with space, I'm not here to talk about our report. Interesting though it was act now or lose out. But the fact is that this bill will unlock future investment and a space economy for the future. And the UK could be very well placed to play a very active part in it. So in conclusion, I want to say that to thank all those involved and to say that I wish this bill very well in the future.
Well done. Well said. the future. Well done. Well said.
10:10
Lord Moylan (Conservative)
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Lord Moylan (Conservative)
My Lords. This is the second bill this week which effectively transfers risk or cost away from private investors onto the taxpayer or the fare payer. In order to help put Britain on the path to industrial success in the future, it's all a long way. I might say to the noble Lord, the Minister who supports this bill from the days of the railways, when private money, without government support, without without any transfer of risk, sometimes private investors losing their funds built our great railway network.
But it turns out that this is necessary for our success in space. And so we support this bill. And we congratulate my noble friend, Lady Ainley of Saint John's, for bringing it forward and bringing it to a successful conclusion. And like her, I wish to thank not only the Minister for his friendly and open engagement, but also his civil servants who have been supportive in this.
But it turns out that this is necessary for our success in space. And so we support this bill. And we congratulate my noble friend, Lady Ainley of Saint John's, for bringing it forward and bringing it to a successful conclusion. And like her, I wish to thank not only the Minister for his friendly and open engagement, but also his civil servants who have been supportive in this.
10:12
Lord Hendy of Richmond Hill, Minister of State (Department for Transport) (Labour)
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Lord Hendy of Richmond Hill, Minister of State (Department for Transport) (Labour)
My Lords, I would like to thank all noble Lords for their contributions to and support for this Bill. I would like to offer particular thanks to the noble Baroness, Baroness, for steering the Bill, this this bill through this House, and to John Grady for bringing forward the short, this short but important bill. In the other place, the government recognises that the question of liability and insurance is of utmost concern to the space sector and the value that the industry places on having legislative certainty on this matter and the concerns it has raised about the use of the word may.
In section 12 two of the Space Industry Act. I'm therefore grateful to the noble Baroness for this bill, which, by amending section 12 two, will meet a key request from the sector.
In section 12 two of the Space Industry Act. I'm therefore grateful to the noble Baroness for this bill, which, by amending section 12 two, will meet a key request from the sector.
10:12
Lord Kennedy of Southwark (Labour)
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Lord Kennedy of Southwark (Labour)
The question is this bill do now >> The question is this bill do now pass. As many of that opinion will say, content, not content. The contents have it.
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contents have it. My Lords, before we move on to the fourth day of committee, I will make a statement about proceedings as I did for the previous three sitting Fridays. I hope again this will help planning and is in line how we business has proceeded previously. Firstly, it's important to thank the staff of the House, those on duty today in their various roles and those who have been working in preparation for today's proceedings. The whole House greatly values your work and
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we thank you for all you do. Hear, hear. The Government Whips office have circulated the updated groupings circulated the updated groupings list. Our noble friend Lord Falconer of Thoroton, as he has previously, has set a proposed previously, has set a proposed target for today's debates. As was the case in previous week weeks, I expect the House to rise at a convenient point around 3 p.m. in line with usual procedures and in line with usual procedures and in line with the companion, we maintain the typical flexibility to rise slightly before or slightly beyond that point to include the group we are debating.
I do think that having only considered six groups of amendments in three days, committee there should be looking to make more progress today. Ultimately, this remains in the hands of the house and not me in my role as Government Chief Whip. I expect to return to the despatch box this afternoon between 230 and 3 p.m. to advise the House further. I do though, want to make a few other points before we begin the Committee stage consideration of this bill. In doing so, I fully accept that not everything I say is accepted by the whole house.
But please accept my intentions are good to show the house in the best light, and to enable the House to deliver effective scrutiny of these important issues before us. I have many times before at this Dispatch Box as Government Chief Whip and from the opposite as Opposition Chief Whip, made reference to the companion and now, following its guidance, is of great assistance to the House and to their own all noble Lords in undertaking an important work every day. I make that same point today for the advice of the companion.
It will help us all to better debates today's and better proceedings today. In that light, it's important to remind ourselves that this is Committee stage, and noble Lords should address their remarks to the amendments under consideration and not make long Second Reading speeches going way beyond the substance of amendments being debated. This is all set out in the companion on page one. 43.8 .81. Also, we do not accept interventions on interventions. That is not the House of Lords way.
Please refrain from attempting to do this. I've asked the government whip on the bench to intervene to stop this practice if it begins. If any noble Lord does make an intervention on another noble Lord, I refer the noble Lords to the companion. Specifically. Page 60.4 .29, which makes clear interventions should be a brief question of clarification only and not another speech. Also, when pressing or withdrawing, amendments to noble Lords should be brief. This is set out in The Companion on page one.
43.8 .82. I expect, as I believe all noble Lords do, that despite sincerely held views and differences of opinion, we will always conduct ourselves with courtesy and respect for each other and show the public watching our debates. The House of Lords in the best possible light. So, as I said before, please refrain from doing anything that will bring that into question. As I've said previously, the acoustics are excellent in this chamber and the microphones are very sensitive and overlords should not be holding conversations in the chamber or making remarks that they would not like to be broadcast live.
If you wish to speak to another noble Lord, please retire to the Prince's Chamber, the Royal Gallery, the peers Lobby, the Long room with the Peers guest room and then return with your conversations ended. These are good places to have conversations and regular use. On most other days after every city. Friday's debate on this bill I have noble Lords with very different views contacted me in the preceding days, expressing their frustration with other noble Lords sitting near them who seem to talk constantly to the annoyance and convenience of others.
Please bear this in mind. As I said, have your conversations outside the chamber. This is a private member's bill, and the noble Lord in charge of the bill is my noble friend, Lord Falconer of Thoroton. It is not a government bill and it is not the government Ministers on the frontbench in charge of the Bill. It is not a government bill. It will not become a government bill. The government remains neutral. That position is not going to change, my Lords. I not going to change, my Lords.
I have said it time and time again. This will not change. Having made This will not change. Having made the opening remarks, which again are said to assist the House, I think we should now move on to think we should now move on to debate the issues of substance before us.
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contents have it. My Lords, before we move on to the fourth day of committee, I will make a statement about proceedings as I did for the previous three sitting Fridays. I hope again this will help planning and is in line how we business has proceeded previously. Firstly, it's important to thank the staff of the House, those on duty today in their various roles and those who have been working in preparation for today's proceedings. The whole House greatly values your work and
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we thank you for all you do. Hear, hear. The Government Whips office have circulated the updated groupings circulated the updated groupings list. Our noble friend Lord Falconer of Thoroton, as he has previously, has set a proposed previously, has set a proposed target for today's debates. As was the case in previous week weeks, I expect the House to rise at a convenient point around 3 p.m. in line with usual procedures and in line with usual procedures and in line with the companion, we maintain the typical flexibility to rise slightly before or slightly beyond that point to include the group we are debating.
I do think that having only considered six groups of amendments in three days, committee there should be looking to make more progress today. Ultimately, this remains in the hands of the house and not me in my role as Government Chief Whip. I expect to return to the despatch box this afternoon between 230 and 3 p.m. to advise the House further. I do though, want to make a few other points before we begin the Committee stage consideration of this bill. In doing so, I fully accept that not everything I say is accepted by the whole house.
But please accept my intentions are good to show the house in the best light, and to enable the House to deliver effective scrutiny of these important issues before us. I have many times before at this Dispatch Box as Government Chief Whip and from the opposite as Opposition Chief Whip, made reference to the companion and now, following its guidance, is of great assistance to the House and to their own all noble Lords in undertaking an important work every day. I make that same point today for the advice of the companion.
It will help us all to better debates today's and better proceedings today. In that light, it's important to remind ourselves that this is Committee stage, and noble Lords should address their remarks to the amendments under consideration and not make long Second Reading speeches going way beyond the substance of amendments being debated. This is all set out in the companion on page one. 43.8 .81. Also, we do not accept interventions on interventions. That is not the House of Lords way.
Please refrain from attempting to do this. I've asked the government whip on the bench to intervene to stop this practice if it begins. If any noble Lord does make an intervention on another noble Lord, I refer the noble Lords to the companion. Specifically. Page 60.4 .29, which makes clear interventions should be a brief question of clarification only and not another speech. Also, when pressing or withdrawing, amendments to noble Lords should be brief. This is set out in The Companion on page one.
43.8 .82. I expect, as I believe all noble Lords do, that despite sincerely held views and differences of opinion, we will always conduct ourselves with courtesy and respect for each other and show the public watching our debates. The House of Lords in the best possible light. So, as I said before, please refrain from doing anything that will bring that into question. As I've said previously, the acoustics are excellent in this chamber and the microphones are very sensitive and overlords should not be holding conversations in the chamber or making remarks that they would not like to be broadcast live.
If you wish to speak to another noble Lord, please retire to the Prince's Chamber, the Royal Gallery, the peers Lobby, the Long room with the Peers guest room and then return with your conversations ended. These are good places to have conversations and regular use. On most other days after every city. Friday's debate on this bill I have noble Lords with very different views contacted me in the preceding days, expressing their frustration with other noble Lords sitting near them who seem to talk constantly to the annoyance and convenience of others.
Please bear this in mind. As I said, have your conversations outside the chamber. This is a private member's bill, and the noble Lord in charge of the bill is my noble friend, Lord Falconer of Thoroton. It is not a government bill and it is not the government Ministers on the frontbench in charge of the Bill. It is not a government bill. It will not become a government bill. The government remains neutral. That position is not going to change, my Lords. I not going to change, my Lords.
I have said it time and time again. This will not change. Having made This will not change. Having made the opening remarks, which again are said to assist the House, I think we should now move on to think we should now move on to debate the issues of substance before us.
10:18
10:18
Baroness Hayman (Crossbench)
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Baroness Hayman (Crossbench)
grateful to the noble Lord, the Chief Whip, for what he said in forcing. The companion is obviously a prime responsibility of the whip and the bench and the government whips, but it does extend further. And would he confirm that any of And would he confirm that any of the whips can intervene and point out when the companion is not being out when the companion is not being applied for to? And that actually applies to any member of the House as well? Yes.
10:18
Lord Kennedy of Southwark (Labour)
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Lord Kennedy of Southwark (Labour)
When the noble spoke. I remember the Countess of Mar who would actually regularly get up and correct noble Lords when they were getting things wrong. The noble is absolutely right. We should all follow the companion. We are all responsible for a self-regulating house, and we should do that to ensure we have good debates, sink debates, and get make good progress.
10:19
Legislation: Terminally Ill Adults (End of Life) Bill - committee stage (day 4)
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Legislation: Terminally Ill Adults (End of Life) Bill - committee stage (day 4)
Has to be again in committee on the terminally ill adults end of life bill. Lord Falconer of Thoroton I beg to prove. Thoroton I beg to prove. >> That the House do now again resolve itself into a committee upon the bill. >> The question is that the House
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The question is that the House now do now again resolve itself into a committee upon the bill, as many of that opinion say. Content, many of that opinion say. Content, not content. The contents have it. In clause one, amendment 16 Baroness Finlay of Llandaff. Baroness Finlay of Llandaff.
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The question is that the House now do now again resolve itself into a committee upon the bill, as many of that opinion say. Content, many of that opinion say. Content, not content. The contents have it. In clause one, amendment 16 Baroness Finlay of Llandaff. Baroness Finlay of Llandaff.
10:19
Baroness Finlay of Llandaff (Crossbench)
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Baroness Finlay of Llandaff (Crossbench)
Amendment 16 and one one for proposes that anyone who is currently or was in the year preceding their first declaration, deprived of liberty under the Mental Capacity Act, and will be considered to lack capacity for the decision to seek assisted death. Amendment 16 a amendment for extend this to those on whom an application has been made but not necessarily completed. Given the data. There is good reason that these amendments from the noble Lady Baroness Keeley should be considered.
The Mental Capacity Act 2005, section four requires that decisions made on behalf of individuals who lack capacity are made in their best interests and with the least restriction of freedom. This amendment can only probe the eligibility assessment process because we're at a transition point from the overloaded deprivation of Liberty Safeguards or Dole system, possibly to liberty protection safeguards. Implementation of the 2019 Mental Capacity Amendment Act with the concomitant refresh of the MCA code to incorporate Liberty protection safeguards.
Guidance is planned for early next year, but no firm date has been set. Deprivation of liberty safeguards authorise arrangements that restrict liberty in hospitals and care homes for those aged 18 or over, when necessary, for care and safety in their best interests, and there is no other way to look after them. A standard authorisation under section four can be given by local authority, valid for up to one year to a hospital or care home. After a series of six assessments within a 21 day period.
Forby allows for an urgent seven day deprivation of liberty, renewable once to sustain life or for vital acts pending a Court of Protection decision, or while the standard process is underway. Urgent dols applications arise from acute crises. In 20 2324, 58% of applications were urgent. Temporary incapacity in acute hospital settings is often due to acute delirium in cardiovascular events, infection, or medication effects. Of course, when a person improve and regain capacity, the dolls became inapplicable.
But my Lords, the system is completely overloaded. There were over 334,000 applications in England alone in 20 2324, taking an average of 144 days for assessment. Only 44% were fully assessed and only 19% were completed within the required statutory 21 days. And this goes to the heart of the problem, as local authority records are not integrated with health records, neither the panel nor the assessing doctors in this bill will always have details of applications and outcomes.
Different medical record systems exist in different trusts. Access to GP records is variable absence or very limited because some GP practices have not signed to give access by trusts to their GP records. There is no access to social care clinical information systems, no information sharing between social care and medical records, and no access to the details of safeguarding information held by local authorities. Although police callouts may trigger the GP being notified, a callout has occurred. No details are given, meaning there is no access to police records of actually what went on.
Even when psychiatry asks, such information is not readily given from the police. National computer Network will come on later to discuss whether a panel can access this information, as it may be a clear pointer to domestic abuse, and without a requirement to even interview the family. How will anyone know what's gone on? Hence the amendment. The very fact that an impairment of capacity serious enough to precipitate a dols application has occurred should act as a yellow flag when eligibility is being assessed.
Although relatively small numbers, the 20 2324 data shows that 3% of fully assessed Dols applications were rejected, but it's noticeable that half were due to change in circumstances and a fifth because the criteria were not fulfilled. So I expect to be told that this amendment, intended to protect vulnerable adults, has adverse implications for individuals with temporary hospital related incapacity, potentially restricting autonomy because they'd had a previous episode of seriously impaired capacity. But individuals with irreversible conditions, such as advanced dementia or lifelong severe cognitive impairment, may remain ineligible long term, which aligns with the safeguards intent.
I am grateful to my noble friends Baroness Butler-Sloss and Baroness O'Loan who supported this amendment, and to the noble Lady Baroness Keeley, whose amendment to my amendment intends to increase safety by capturing the larger number, comprising 56% of applications that had not been completed. I anticipate the noble Lord, the Minister, saying that this amendment poses legal difficulties for those who lack capacity when it was temporary, but serious enough to to prompt dols as it creates a statutory presumption rather than case by case assessment for anyone with adult or LPs history.
I hope, therefore, that this short debate will mean that a previous impairment of capacity will act as a yellow flag, an indicator that risk may be elevated when an application is assessed. It is known that an episode of impaired capacity serious enough to trigger restricted liberty can signal further episodes of delirium in over a fifth of people, or be the first pointer to dementia. I hope this will encourage recognition by the noble Lord, Lord Faulkner, of the need to re-examine the balance of safety where unrecognised implications and indications of impaired decision making could all too easily lead to an excess of poor assessments and
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inappropriate assisted deaths. I beg to move. Amendment proposed clause one,
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Amendment proposed clause one, page one, line ten. At end, insert the words as printed on the marshalled list as an amendment to amendment 16, amendment 16 a Baroness Keeley.
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Baroness Keeley. I am speaking to amendment 16 A and 114 A, which have been tabled
The Mental Capacity Act 2005, section four requires that decisions made on behalf of individuals who lack capacity are made in their best interests and with the least restriction of freedom. This amendment can only probe the eligibility assessment process because we're at a transition point from the overloaded deprivation of Liberty Safeguards or Dole system, possibly to liberty protection safeguards. Implementation of the 2019 Mental Capacity Amendment Act with the concomitant refresh of the MCA code to incorporate Liberty protection safeguards.
Guidance is planned for early next year, but no firm date has been set. Deprivation of liberty safeguards authorise arrangements that restrict liberty in hospitals and care homes for those aged 18 or over, when necessary, for care and safety in their best interests, and there is no other way to look after them. A standard authorisation under section four can be given by local authority, valid for up to one year to a hospital or care home. After a series of six assessments within a 21 day period.
Forby allows for an urgent seven day deprivation of liberty, renewable once to sustain life or for vital acts pending a Court of Protection decision, or while the standard process is underway. Urgent dols applications arise from acute crises. In 20 2324, 58% of applications were urgent. Temporary incapacity in acute hospital settings is often due to acute delirium in cardiovascular events, infection, or medication effects. Of course, when a person improve and regain capacity, the dolls became inapplicable.
But my Lords, the system is completely overloaded. There were over 334,000 applications in England alone in 20 2324, taking an average of 144 days for assessment. Only 44% were fully assessed and only 19% were completed within the required statutory 21 days. And this goes to the heart of the problem, as local authority records are not integrated with health records, neither the panel nor the assessing doctors in this bill will always have details of applications and outcomes.
Different medical record systems exist in different trusts. Access to GP records is variable absence or very limited because some GP practices have not signed to give access by trusts to their GP records. There is no access to social care clinical information systems, no information sharing between social care and medical records, and no access to the details of safeguarding information held by local authorities. Although police callouts may trigger the GP being notified, a callout has occurred. No details are given, meaning there is no access to police records of actually what went on.
Even when psychiatry asks, such information is not readily given from the police. National computer Network will come on later to discuss whether a panel can access this information, as it may be a clear pointer to domestic abuse, and without a requirement to even interview the family. How will anyone know what's gone on? Hence the amendment. The very fact that an impairment of capacity serious enough to precipitate a dols application has occurred should act as a yellow flag when eligibility is being assessed.
Although relatively small numbers, the 20 2324 data shows that 3% of fully assessed Dols applications were rejected, but it's noticeable that half were due to change in circumstances and a fifth because the criteria were not fulfilled. So I expect to be told that this amendment, intended to protect vulnerable adults, has adverse implications for individuals with temporary hospital related incapacity, potentially restricting autonomy because they'd had a previous episode of seriously impaired capacity. But individuals with irreversible conditions, such as advanced dementia or lifelong severe cognitive impairment, may remain ineligible long term, which aligns with the safeguards intent.
I am grateful to my noble friends Baroness Butler-Sloss and Baroness O'Loan who supported this amendment, and to the noble Lady Baroness Keeley, whose amendment to my amendment intends to increase safety by capturing the larger number, comprising 56% of applications that had not been completed. I anticipate the noble Lord, the Minister, saying that this amendment poses legal difficulties for those who lack capacity when it was temporary, but serious enough to to prompt dols as it creates a statutory presumption rather than case by case assessment for anyone with adult or LPs history.
I hope, therefore, that this short debate will mean that a previous impairment of capacity will act as a yellow flag, an indicator that risk may be elevated when an application is assessed. It is known that an episode of impaired capacity serious enough to trigger restricted liberty can signal further episodes of delirium in over a fifth of people, or be the first pointer to dementia. I hope this will encourage recognition by the noble Lord, Lord Faulkner, of the need to re-examine the balance of safety where unrecognised implications and indications of impaired decision making could all too easily lead to an excess of poor assessments and
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inappropriate assisted deaths. I beg to move. Amendment proposed clause one,
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Amendment proposed clause one, page one, line ten. At end, insert the words as printed on the marshalled list as an amendment to amendment 16, amendment 16 a Baroness Keeley.
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Baroness Keeley. I am speaking to amendment 16 A and 114 A, which have been tabled
10:26
Baroness Berger (Labour)
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Baroness Berger (Labour)
and 114 A, which have been tabled by the noble Lady Baroness Keeley, and these amendments address the fact that for the last ten years there has been a substantial backlog of applications for deprivation of liberty safeguard assessments, and this is a backlog which grew after there was a Supreme Court ruling in 2014 on the Cheshire West. Following that ruling in 2014, the criteria for what constituted a deprivation of liberty assessment led to a surge in applications for dols assessments.
Back in 20 1314, there was just around 13,000 assessments. This grew to over 332,000 applications in 2023 2024. The last reported backlog of Deprivation of Liberty Safeguards assessments back in October of this year was more than 123,000 applications. That is more than 123,000 cases where a person so lacks capacity in one area that an application for deprivation of Liberty Safeguards assessment has been made. But our overstretched social workers and local authorities have not been able to process these applications.
I hope we can all agree that people whose incapacity for basic decisions is so severe that they are deprived of their liberty, or have an application made for deprivation, deprivation of their liberty, are the most vulnerable members of society, and the protection of people who lack capacity is a solemn duty. The state looks after their interests because they cannot. Amendment 1616 a 114 and 114 A provide a fundamental safeguard to protect this group by excluding them from making a life and death decision, both when they have been deprived of their liberty in the last 12 months, or particularly, what these amendments are seeking to achieve is while they are waiting for that assessment to be made, to deprive them of their liberty.
In conclusion, and in considering these amendments, that in addition to the delays that have been outlined just now by Baroness Finlay, we must also reflect that our current social care workforce has struggled so much with the backlog of assessments, as I've described, that the last government was not able to implement the changes to the Deprivation of Liberty Safeguards assessments that were contained in the Mental Capacity Amendment Act of 2019. And it's worth pointing out that this bill is seeking to create a new and additional role for social workers on the panels, and it is in that context that I hope that members will the noble Lords will consider these amendments.
Back in 20 1314, there was just around 13,000 assessments. This grew to over 332,000 applications in 2023 2024. The last reported backlog of Deprivation of Liberty Safeguards assessments back in October of this year was more than 123,000 applications. That is more than 123,000 cases where a person so lacks capacity in one area that an application for deprivation of Liberty Safeguards assessment has been made. But our overstretched social workers and local authorities have not been able to process these applications.
I hope we can all agree that people whose incapacity for basic decisions is so severe that they are deprived of their liberty, or have an application made for deprivation, deprivation of their liberty, are the most vulnerable members of society, and the protection of people who lack capacity is a solemn duty. The state looks after their interests because they cannot. Amendment 1616 a 114 and 114 A provide a fundamental safeguard to protect this group by excluding them from making a life and death decision, both when they have been deprived of their liberty in the last 12 months, or particularly, what these amendments are seeking to achieve is while they are waiting for that assessment to be made, to deprive them of their liberty.
In conclusion, and in considering these amendments, that in addition to the delays that have been outlined just now by Baroness Finlay, we must also reflect that our current social care workforce has struggled so much with the backlog of assessments, as I've described, that the last government was not able to implement the changes to the Deprivation of Liberty Safeguards assessments that were contained in the Mental Capacity Amendment Act of 2019. And it's worth pointing out that this bill is seeking to create a new and additional role for social workers on the panels, and it is in that context that I hope that members will the noble Lords will consider these amendments.
10:29
Baroness Butler-Sloss (Crossbench)
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Baroness Butler-Sloss (Crossbench)
Amendment proposed in paragraph CAA leave out been and insert had CAA leave out been and insert had an application to be. >> The reasons given both by the
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The reasons given both by the noble Ladies, the Baroness Finlay and the Baroness Berger. I support all these amendments. I wonder if your Lordships, particularly the whips, would forgive me if I go slightly wider very briefly. I'm one of the oldest members of this House. I don't like the bill, but I am here. Like other noble Lords, to try and make it work. It needs scrutiny, it needs improvement. But we must get it to Third Reading. If we don't, there is a very real danger that the reputation of this house, which not only I, but all your Lordships care about deeply, will be, or possibly will be irreparably eroded.
I listened this morning to the today programme, where there was in many ways I agree every word of what the noble Lady Grey-thompson said. But that was the perception that we are being unreasonable. My Lords, what can we do? Perhaps by not expecting to be entitled, by exercising self-restraint, by dealing with the amendments relatively briefly, if someone has already spoken on the point that you're going to make, don't make it. Because we really must get to Third Reading.
Would you forgive me for having saved all that? Yes.
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The reasons given both by the noble Ladies, the Baroness Finlay and the Baroness Berger. I support all these amendments. I wonder if your Lordships, particularly the whips, would forgive me if I go slightly wider very briefly. I'm one of the oldest members of this House. I don't like the bill, but I am here. Like other noble Lords, to try and make it work. It needs scrutiny, it needs improvement. But we must get it to Third Reading. If we don't, there is a very real danger that the reputation of this house, which not only I, but all your Lordships care about deeply, will be, or possibly will be irreparably eroded.
I listened this morning to the today programme, where there was in many ways I agree every word of what the noble Lady Grey-thompson said. But that was the perception that we are being unreasonable. My Lords, what can we do? Perhaps by not expecting to be entitled, by exercising self-restraint, by dealing with the amendments relatively briefly, if someone has already spoken on the point that you're going to make, don't make it. Because we really must get to Third Reading.
Would you forgive me for having saved all that? Yes.
10:30
Lord Falconer of Thoroton (Labour)
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Lord Falconer of Thoroton (Labour)
My Lords. >> My Lords. >> Could I act immediately upon the words of the noble and learned Baroness Butler-Sloss? Could I Baroness Butler-Sloss? Could I respond briefly to what the noble Baroness Baroness Finlay and my noble friend Baroness Berger has said? They are basically referring to the problem of people who lack capacity and have had their liberty deprived, because the lack of capacity is so severe that they cannot be trusted to be free. That normally takes place in the setting of a hospital or a care home, but can also take place in the setting of a private home.
And it's then that the Cheshire East cases come into play. What the noble Baroness Baroness Finlay said that should be a yellow flag if your lack of capacity is so serious that your liberty is taken away, then that does indicate that there is something very seriously wrong. The principle of the Mental Capacity Act 2005 is that you should look at capacity on a case by case basis. There will be cases where your liberty is taken away, where you wouldn't necessarily lack the capacity in relation to very serious issues.
And can I take sorry, I should have made a declaration before. Apart from receiving money from Mr. Bernard Lewis to pay for an assistant, and apart from having the Dignity in Dying paper, a publication of some printing that went around to the peers. My wife was a designated family judge until very recently and sat in the Court of Protection, and I should disclose that amongst the sorts of cases that come before the courts, and they will come before the courts, not come before a local authority, is people who desperately do not want to leave their home.
They eventually have to have an order from the Court of Protection, meaning that they have to leave. And sometimes it's accompanied by deprivation of liberty order. Many of those people, even though they are moved somewhere else, still would have the capacity to make a decision in relation to assisted dying. How do we deal with the perfectly legitimate points that Baroness Finlay is making? And I've had the opportunity, and I thank the Baroness Finlay for this, having a discussion with her.
The answer is there should be some form of enhanced protection to deal with what she says is a yellow flag. And could I suggest to the House that I speak to those who are interested, including the Baroness Berger and the Baroness Keeley, who sadly can't be here today so that we can see what form that enhanced protection could take. And I hope in the light of what I've indicated,
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we can move on to the next amendment. My Lords, I would like to make
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My Lords, I would like to make some comments in this group and in response to what the noble Lord has just said in its recent briefing. just said in its recent briefing. For peers, it's the view of the Royal College of Psychiatrists that assessors should be required to assessors should be required to take all practical steps to work with professionals involved in a person's health and social care,
And it's then that the Cheshire East cases come into play. What the noble Baroness Baroness Finlay said that should be a yellow flag if your lack of capacity is so serious that your liberty is taken away, then that does indicate that there is something very seriously wrong. The principle of the Mental Capacity Act 2005 is that you should look at capacity on a case by case basis. There will be cases where your liberty is taken away, where you wouldn't necessarily lack the capacity in relation to very serious issues.
And can I take sorry, I should have made a declaration before. Apart from receiving money from Mr. Bernard Lewis to pay for an assistant, and apart from having the Dignity in Dying paper, a publication of some printing that went around to the peers. My wife was a designated family judge until very recently and sat in the Court of Protection, and I should disclose that amongst the sorts of cases that come before the courts, and they will come before the courts, not come before a local authority, is people who desperately do not want to leave their home.
They eventually have to have an order from the Court of Protection, meaning that they have to leave. And sometimes it's accompanied by deprivation of liberty order. Many of those people, even though they are moved somewhere else, still would have the capacity to make a decision in relation to assisted dying. How do we deal with the perfectly legitimate points that Baroness Finlay is making? And I've had the opportunity, and I thank the Baroness Finlay for this, having a discussion with her.
The answer is there should be some form of enhanced protection to deal with what she says is a yellow flag. And could I suggest to the House that I speak to those who are interested, including the Baroness Berger and the Baroness Keeley, who sadly can't be here today so that we can see what form that enhanced protection could take. And I hope in the light of what I've indicated,
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we can move on to the next amendment. My Lords, I would like to make
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My Lords, I would like to make some comments in this group and in response to what the noble Lord has just said in its recent briefing. just said in its recent briefing. For peers, it's the view of the Royal College of Psychiatrists that assessors should be required to assessors should be required to take all practical steps to work with professionals involved in a person's health and social care,
10:34
Baroness Hollins (Crossbench)
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Baroness Hollins (Crossbench)
person's health and social care, and to talk to a relative, carer or nominated friend, including by accessing medical notes from both primary and secondary care. The Royal College has expressed concern that a consideration of suicide protection duties are being bypassed by the Bill in its current form, due to unmet need not being formally assessed. A previous Dols is relevant to consideration of current capacity to decide what to end one's life. What would the mechanism be for reliably ensuring information that there has been a dols before it gets to the assessors and the panel? Having mentioned the Royal College of Psychiatrists, I would like to make a short statement because the college has asked me to respond to allegations about the college leadership made by Baroness Murphy on November the 14th, during the first day of committee.
The president, doctor, Lady Smith, wrote to Baroness Murphy asking her to withdraw her allegations as they are inaccurate. But although the noble Lady was present in the chamber the following week, no clarification was provided. And as a past president myself, I beg leave to set the record straight. The college's recommendations on the bill are, in fact, based on 18 months consideration by a Cross College working group involving membership surveys, debate with members on proposals before other jurisdictions, and discussions with colleagues in other jurisdictions where assisted dying is practised.
The president is clear that Doctor Annabelle Christ, the appointed college lead for the bill, has accurately represented their views when giving formal evidence to both houses with the Bill before the Lords. The Royal College of Psychiatrists is focusing on how to make it safer for people with mental health and learning disability needs, and better aligned with the responsibilities of psychiatrists. And I felt that in light of the discussion on dolls, this was an appropriate statement to make.
The president, doctor, Lady Smith, wrote to Baroness Murphy asking her to withdraw her allegations as they are inaccurate. But although the noble Lady was present in the chamber the following week, no clarification was provided. And as a past president myself, I beg leave to set the record straight. The college's recommendations on the bill are, in fact, based on 18 months consideration by a Cross College working group involving membership surveys, debate with members on proposals before other jurisdictions, and discussions with colleagues in other jurisdictions where assisted dying is practised.
The president is clear that Doctor Annabelle Christ, the appointed college lead for the bill, has accurately represented their views when giving formal evidence to both houses with the Bill before the Lords. The Royal College of Psychiatrists is focusing on how to make it safer for people with mental health and learning disability needs, and better aligned with the responsibilities of psychiatrists. And I felt that in light of the discussion on dolls, this was an appropriate statement to make.
10:36
Baroness O'Loan (Crossbench)
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Baroness O'Loan (Crossbench)
To amendment 16, and I'm supportive of amendment 16, a 114 114 a because the very general definition in clause one of a terminally ill adult who has the capacity to take their own life does not contain any consideration of those who have been deprived of their of their liberty under section four of the Mental Capacity Act. My Lord, it's an unfortunate reality that many of those detained in hospitals or care homes are detained because they lack the capacity to make a decision about their own care or treatment.
And in such circumstances, it's surely axiomatic. As the noble Baroness Baroness Finlay has said, that there should be very careful consideration of cases involving individuals subject to dols, even assessing as the noble Lord, Lord Faulkner has said, even assessing the capacity, for example, of someone with dementia or another neurological condition can be profoundly difficult, not just because of the frequent fluctuating of capacity and the extent to which any identified capacity enables the making of a particular decision. It's the case that a medical practitioner or social worker who meets a person for the first time may be misled as to the capacity which that person actually has.
As the Royal College of Psychiatrists noted in their written evidence, an assessment of the person's mental capacity to decide to end their own life is an entirely different to other assessments of capacity and more complex determination, requiring a higher level of understanding. The noble and learned Baroness Butler-sloss in 1977, in the case of re MB, said the grave of the consequence of the decision, the commensurately greater the level of competence required to take the decision. Capacity assessment. My Lord, is not a precise science.
The unique context of this bill makes taking a cautious approach appropriate. It's common sense that there is a likely correlation between incapacity in one area, which is so extreme that the state must deprive the person of their liberty and incapacity to decide whether or not to end one's own life. People whose incapacity for basic decisions is so severe that they're deprived of their liberty are the most vulnerable members of society. I want to give your Lordships a very brief example. I was aware of a woman in her late 80s who had been assessed and was subject to a dols.
She objected to it, appealed against it intellectually, enormously able, possessed of considerable social skills despite her dementia. She was able to persuade those dealing with her appeal that she had capacity, despite the very real concerns of her family, who knew the extent of her incapacity. The doors was lifted. She went back to her own home, she was found playing golf in her pyjamas. At 2:00 in the morning she was going to the supermarket at 4 a.m. she was leaving the door unlocked all night for her husband and cooking his dinner every night.
He had died some 20 years previously. My Lords, that lady was my mother. She certainly wouldn't have understood a suggestion that she should opt for assisted death. The dolls were subsequently reinstated, and that is not an unusual situation. If the noble Lord, Lord Faulkner, rejects these amendments, how does he consider that such vulnerable individuals can be protected from making this final decision, although they may not understand exactly what they're doing?
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And I think that what the noble Lord lady is saying is extremely interesting. But the noble Lord has interesting. But the noble Lord has already said that he would seek a meeting with Baroness Finlay with. With all noble Lords who are With all noble Lords who are interested in this. So it's not that he's rejecting the amendment. My Lords, he is willing to enter a
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discussion. For her intervention. I think it's very helpful, but we don't know what the outcome of that know what the outcome of that meeting will be. And I think I have the right to make my remarks. Thank you. Chair.
And in such circumstances, it's surely axiomatic. As the noble Baroness Baroness Finlay has said, that there should be very careful consideration of cases involving individuals subject to dols, even assessing as the noble Lord, Lord Faulkner has said, even assessing the capacity, for example, of someone with dementia or another neurological condition can be profoundly difficult, not just because of the frequent fluctuating of capacity and the extent to which any identified capacity enables the making of a particular decision. It's the case that a medical practitioner or social worker who meets a person for the first time may be misled as to the capacity which that person actually has.
As the Royal College of Psychiatrists noted in their written evidence, an assessment of the person's mental capacity to decide to end their own life is an entirely different to other assessments of capacity and more complex determination, requiring a higher level of understanding. The noble and learned Baroness Butler-sloss in 1977, in the case of re MB, said the grave of the consequence of the decision, the commensurately greater the level of competence required to take the decision. Capacity assessment. My Lord, is not a precise science.
The unique context of this bill makes taking a cautious approach appropriate. It's common sense that there is a likely correlation between incapacity in one area, which is so extreme that the state must deprive the person of their liberty and incapacity to decide whether or not to end one's own life. People whose incapacity for basic decisions is so severe that they're deprived of their liberty are the most vulnerable members of society. I want to give your Lordships a very brief example. I was aware of a woman in her late 80s who had been assessed and was subject to a dols.
She objected to it, appealed against it intellectually, enormously able, possessed of considerable social skills despite her dementia. She was able to persuade those dealing with her appeal that she had capacity, despite the very real concerns of her family, who knew the extent of her incapacity. The doors was lifted. She went back to her own home, she was found playing golf in her pyjamas. At 2:00 in the morning she was going to the supermarket at 4 a.m. she was leaving the door unlocked all night for her husband and cooking his dinner every night.
He had died some 20 years previously. My Lords, that lady was my mother. She certainly wouldn't have understood a suggestion that she should opt for assisted death. The dolls were subsequently reinstated, and that is not an unusual situation. If the noble Lord, Lord Faulkner, rejects these amendments, how does he consider that such vulnerable individuals can be protected from making this final decision, although they may not understand exactly what they're doing?
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And I think that what the noble Lord lady is saying is extremely interesting. But the noble Lord has interesting. But the noble Lord has already said that he would seek a meeting with Baroness Finlay with. With all noble Lords who are With all noble Lords who are interested in this. So it's not that he's rejecting the amendment. My Lords, he is willing to enter a
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discussion. For her intervention. I think it's very helpful, but we don't know what the outcome of that know what the outcome of that meeting will be. And I think I have the right to make my remarks. Thank you. Chair.
10:40
Baroness Berridge (Conservative)
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Baroness Berridge (Conservative)
I rise to speak to the amendments in this group, and I didn't lay one in my name about a group of people who were also group of people who were also subject to deprivation of liberty safeguards. I am pleased to hear the noble and learned Lord repeat his offer of a meeting, which was made last Friday, and I was disappointed not to receive an invitation to a group meeting to discuss the various groups of vulnerable people who may need additional conditions. Had there been that meeting, I would not be taking up time today, nor in the later group where I specifically offered to withdraw amendments had a meeting taken place.
My Lords, there is another group of people under deprivation of liberty safeguards that are not under the Mental Capacity Act. And these are young people who are under the High Court jurisdiction of deprivation of liberty safeguards called High Court Dols. And I want to thank the president of the Family Division for ensuring this research available on this group and the Children's Commissioner, who has visited very many of them. These young people are so troubled that their liberty needs to be restricted, but they can't be currently detained under section 25 of the Children Act in a secure children's home.
That's for a variety of reasons. One, we ran out of places, but also some of them were such that in such a situation that they couldn't even bear the communal, secure environment like that. I also didn't learn amendment because under the Children's Schools and Wellbeing Bill, these young people are being brought possibly under the statutory jurisdiction of the Children Act, but not all of them. There were 1280 applications last year made, and around 90% of them were granted. So this is not, as I think was originally envisaged, a handful of young people.
Are any of these young people also ill? Is the noble, our noble Lords content that at 18 years old and one day they have assisted suicide rates with them? Are they also happy that if a child has been under mental health treatment, but is also physically ill at 18 years and one day they come under the jurisdiction of this bill? The same, of course, applies to those detained and in a young offenders institution. Sadly, due to the private member's bill process, I don't believe there's been any consultation or white paper or pre-legislative scrutiny to flush out the details and data that we need in order to properly legislate.
So I'm grateful to the Children's Commissioner for attending the Select committee, but I was surprised that the public Bill Committee in the House of Commons did not hear from her. In addition to the issues of 18 years old and one day, some of whom are still under the jurisdiction of the Children's Commissioner until they are 25, and of course, under the jurisdiction of the local authority. I don't think it's wrong to say that there will be enormous societal change that will affect children, so I'd be grateful to know whether now or in the meeting that the noble and learned Lord has promised, whether he's aware of this group of children and what meetings he has had to establish, how many there are who would be affected at 18 years old, how many are in this group, and how they can be protected by additional conditions and safeguards?
My Lords, there is another group of people under deprivation of liberty safeguards that are not under the Mental Capacity Act. And these are young people who are under the High Court jurisdiction of deprivation of liberty safeguards called High Court Dols. And I want to thank the president of the Family Division for ensuring this research available on this group and the Children's Commissioner, who has visited very many of them. These young people are so troubled that their liberty needs to be restricted, but they can't be currently detained under section 25 of the Children Act in a secure children's home.
That's for a variety of reasons. One, we ran out of places, but also some of them were such that in such a situation that they couldn't even bear the communal, secure environment like that. I also didn't learn amendment because under the Children's Schools and Wellbeing Bill, these young people are being brought possibly under the statutory jurisdiction of the Children Act, but not all of them. There were 1280 applications last year made, and around 90% of them were granted. So this is not, as I think was originally envisaged, a handful of young people.
Are any of these young people also ill? Is the noble, our noble Lords content that at 18 years old and one day they have assisted suicide rates with them? Are they also happy that if a child has been under mental health treatment, but is also physically ill at 18 years and one day they come under the jurisdiction of this bill? The same, of course, applies to those detained and in a young offenders institution. Sadly, due to the private member's bill process, I don't believe there's been any consultation or white paper or pre-legislative scrutiny to flush out the details and data that we need in order to properly legislate.
So I'm grateful to the Children's Commissioner for attending the Select committee, but I was surprised that the public Bill Committee in the House of Commons did not hear from her. In addition to the issues of 18 years old and one day, some of whom are still under the jurisdiction of the Children's Commissioner until they are 25, and of course, under the jurisdiction of the local authority. I don't think it's wrong to say that there will be enormous societal change that will affect children, so I'd be grateful to know whether now or in the meeting that the noble and learned Lord has promised, whether he's aware of this group of children and what meetings he has had to establish, how many there are who would be affected at 18 years old, how many are in this group, and how they can be protected by additional conditions and safeguards?
10:43
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Lord Harper (Conservative)
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Lord Harper (Conservative)
My Lords, I rise briefly to ask the. the. >> noble and learned Lord, Lord Falconer, a question actually in response to his very welcome response to his very welcome response to Baroness Finlay's opening speech. And that is, once he's had those conversations, if he is persuaded that there do need to be, and he did set out a range of protections that there may be if he's persuaded that there do need to be some protections. Can I ask whether he is planning to bring forward his own amendments? Would he would he be prepared to bring forward his own amendments at Report stage to put those protections and assurances on the face of the legislation? Or is he going to do what the I think it's the delegated Powers Committee is referred to as what is effect disguised legislation, which is only putting it in codes of practice and guidance.
I know speaking just for myself and but I think this would be shared widely, that if we're going to have those protections, it's better if they're on the face of the bill. They can't be watered down and they can be properly enforced. And I think if after he's had those conversations with those that are interested, he would then indicate to all noble Lords, that's of course, the disadvantage of having private meetings is you're then you're not able to tell other people if he wants proceedings to go faster and he wants to to bring forward his own amendments that report and prevent other people or prevent the need for other people to do so.
Then obviously, if he can indicate once he's had those conversations that he will be willing to bring forward his own amendments, put those protections on the face of those protections on the face of the legislation, then I'm sure that will be most welcome. And perhaps if you could indicate his thinking if you could indicate his thinking on that today, that would be of help to the House. help to the House.
I know speaking just for myself and but I think this would be shared widely, that if we're going to have those protections, it's better if they're on the face of the bill. They can't be watered down and they can be properly enforced. And I think if after he's had those conversations with those that are interested, he would then indicate to all noble Lords, that's of course, the disadvantage of having private meetings is you're then you're not able to tell other people if he wants proceedings to go faster and he wants to to bring forward his own amendments that report and prevent other people or prevent the need for other people to do so.
Then obviously, if he can indicate once he's had those conversations that he will be willing to bring forward his own amendments, put those protections on the face of those protections on the face of the legislation, then I'm sure that will be most welcome. And perhaps if you could indicate his thinking if you could indicate his thinking on that today, that would be of help to the House. help to the House.
10:45
Lord Kamall (Conservative)
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Lord Kamall (Conservative)
I'll help. No, no. Lord Pack. No. >> Completely understandable. I just, as I said last week, I want to repeat this. If noble Lords will forgive me, I completely agree. forgive me, I completely agree. What the what? The Chief Government Chief Whip said to ensure that noble Lords do speak to the amendments and not give Second Reading speeches. But at the same time, I do think it's important that all noble Lords who do want to speak to an amendment are given that opportunity to do so.
I thank the noble Baroness of the amendment to this group. And just to be clear, and my understanding of this amendment is that it seeks to ensure that someone who is currently, is, or has recently been deprived of their liberty would not be eligible under the act. This amendment makes reference to the Mental Capacity Act 2005, which is obviously also the act underpinning capacity for the purposes of this bill. So I appreciate the underlying logic behind the amendment. I think it opened up a valuable discussion of who exactly should have access to assisted dying services.
And it is important, I'm sure all nobles would agree, whatever their position, that there are robust provisions and safeguards in the bill, and that is only available to those who are suffering from terminal illnesses of sound mind, and that we do not inadvertently open it up to those with issues related to their capacity. I am also grateful to noble Baroness Keeley's contribution as well. Or in place of Baroness Keeley, who is not in her place, because I thought that was very important that someone given the backlog in the system, it's important that it's not just those who have dols, but those who have made an application for Dols.
I think it'd be very interesting to hear from the government, the government's perspective on this, as well as the noble Lords perspective is and they are deemed not to have capacity when seeking to end their life. These are, I think, all these questions ask a fundamental question of whether the Bill is actually right to use the Mental Capacity Act 2005 as the basis for defining capacity, and I am very grateful to noble and learned Lord, Lord, Lord Falconer of Thoroton for offering to meet those who tabled amendments.
I think that's very constructive and very helpful and should be acknowledged, but I also look forward to hearing the noble Lords responses to some of the issues
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raised. My Lords, I'm grateful to noble
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My Lords, I'm grateful to noble Lords for their contributions on this group and to echo the comments of my noble friend, the Chief Whip. Government does remain neutral on the principle of assisted dying and on the passage of this bill. Whether or not the law in this area should change is, of course, a matter for Parliament. And as before, any comments I make will focus on amendments where the government has major legal, technical or operational workability concerns. My Lords, as we have heard, this group relates to deprivation of liberty and eligibility for seeking an assisted death.
And I thank the noble Lady Baroness Finlay and also my noble friend Baroness Keeley for tabling the amendments in this group. Amendment 16 and one, one for tabled by the noble Lady Baroness Finlay seek to prevent individuals who've been deprived of their liberty within the last 12 months under the Mental Capacity Act, from being eligible for an assisted death in the case of amendment 16 A and one one for A, tabled by my noble friend Baroness Keeley, someone would be ineligible as a result of an application for deprivation of liberty having been made irrespective of the outcome of that application.
Noble Lords may wish to consider that the amendments would introduce a departure from the Mental Capacity Act framework by linking a lack of capacity in one area, capacity to consent to care and treatment arrangements that amount to confinement, to lack of capacity in another area, capacity to make the decision to end one's life. Amendment 16 A and one one for A. Go further and make a person ineligible on the basis that only an application for deprivation of liberty has been made.
This may result in a situation where the application itself was unwarranted, but that person would still be ineligible for assisted death. I also wish to raise points relating to the European Convention on Human Rights. Rights.
I thank the noble Baroness of the amendment to this group. And just to be clear, and my understanding of this amendment is that it seeks to ensure that someone who is currently, is, or has recently been deprived of their liberty would not be eligible under the act. This amendment makes reference to the Mental Capacity Act 2005, which is obviously also the act underpinning capacity for the purposes of this bill. So I appreciate the underlying logic behind the amendment. I think it opened up a valuable discussion of who exactly should have access to assisted dying services.
And it is important, I'm sure all nobles would agree, whatever their position, that there are robust provisions and safeguards in the bill, and that is only available to those who are suffering from terminal illnesses of sound mind, and that we do not inadvertently open it up to those with issues related to their capacity. I am also grateful to noble Baroness Keeley's contribution as well. Or in place of Baroness Keeley, who is not in her place, because I thought that was very important that someone given the backlog in the system, it's important that it's not just those who have dols, but those who have made an application for Dols.
I think it'd be very interesting to hear from the government, the government's perspective on this, as well as the noble Lords perspective is and they are deemed not to have capacity when seeking to end their life. These are, I think, all these questions ask a fundamental question of whether the Bill is actually right to use the Mental Capacity Act 2005 as the basis for defining capacity, and I am very grateful to noble and learned Lord, Lord, Lord Falconer of Thoroton for offering to meet those who tabled amendments.
I think that's very constructive and very helpful and should be acknowledged, but I also look forward to hearing the noble Lords responses to some of the issues
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raised. My Lords, I'm grateful to noble
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My Lords, I'm grateful to noble Lords for their contributions on this group and to echo the comments of my noble friend, the Chief Whip. Government does remain neutral on the principle of assisted dying and on the passage of this bill. Whether or not the law in this area should change is, of course, a matter for Parliament. And as before, any comments I make will focus on amendments where the government has major legal, technical or operational workability concerns. My Lords, as we have heard, this group relates to deprivation of liberty and eligibility for seeking an assisted death.
And I thank the noble Lady Baroness Finlay and also my noble friend Baroness Keeley for tabling the amendments in this group. Amendment 16 and one, one for tabled by the noble Lady Baroness Finlay seek to prevent individuals who've been deprived of their liberty within the last 12 months under the Mental Capacity Act, from being eligible for an assisted death in the case of amendment 16 A and one one for A, tabled by my noble friend Baroness Keeley, someone would be ineligible as a result of an application for deprivation of liberty having been made irrespective of the outcome of that application.
Noble Lords may wish to consider that the amendments would introduce a departure from the Mental Capacity Act framework by linking a lack of capacity in one area, capacity to consent to care and treatment arrangements that amount to confinement, to lack of capacity in another area, capacity to make the decision to end one's life. Amendment 16 A and one one for A. Go further and make a person ineligible on the basis that only an application for deprivation of liberty has been made.
This may result in a situation where the application itself was unwarranted, but that person would still be ineligible for assisted death. I also wish to raise points relating to the European Convention on Human Rights. Rights.
10:49
Baroness Merron, The Parliamentary Under-Secretary for Health and Social Care (Labour)
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Baroness Merron, The Parliamentary Under-Secretary for Health and Social Care (Labour)
Also asked what the government's view is, because it actually changes the whole basis of the Mental Capacity Act. The Mental Capacity Act is actually existing capacity. What these amendments do moves it to retrospective or future capacity, which is completely incompatible with the Mental Capacity Act. Does the government have any views about that significant change of capacity and
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the test of capacity of an individual? Well, I hope that the comments I've made already give an I've made already give an indication of where we are concerns rather than going to further areas, rather than going to further areas, but I'd be very happy to look at the point that the noble Lord does the point that the noble Lord does make. I also wish to raise points relating to the European Convention on Human Rights. As before, these are potential risks that I am raising to inform noble Lords in their decision making.
But I do wish to be clear that the underlying policies are rightly a matter for Parliament. Noble Lords may wish to note the requirement for an objective, proportionate and reasonable justification for treating those who have previously, in a different context, lacked capacity differently from others who have not. Further, noble Lords may wish to consider whether there is justification for different treatment, where an application for deprivation of liberty has been made, but not necessarily completed or approved. In the absence of justifications that are sufficient to persuade a court.
The amendments may conflict with obligations, specifically article 14 on the prohibition of discrimination. When read with article eight to confirm to noble Lords if a court finds that primary legislation is incompatible, it may make a declaration of incompatibility. This does not invalidate legislation, as is usual. The
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government would then consider. Grateful to the noble Lady, the Minister, for making that point. Minister, for making that point. That was the question, I think, that I asked her last time. The reason why I rise is because it's reason why I rise is because it's very relevant to the question that I posed to the noble and learned Lord, Lord Falconer. It's very Lord, Lord Falconer. It's very important that we put protections on the face of the legislation, because that provides protection because that provides protection from them being subsequently unpicked, whether by domestic courts or by the European Court of Human Rights.
If they're only in a code of practice or guidance, then that doesn't provide that protection against those legal challenges. So I just wondered if the noble Lady would just confirm that what I've said is correct.
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Well, I'm sure that my noble and learned friend will comment on the points that the noble Lord makes. points that the noble Lord makes. But the point I was wishing to say, and it might be helpful in this and it might be helpful in this regard, that it is usual practice for government to consider and address these matters, and noble Lords will be aware that there is a range of ways of dealing with that. That may be amending primary legislation or through a remedial legislation or through a remedial order or by declaration of incompatibility.
And that is the
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usual practice. She agreed.
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She agreed. In relation to human rights. Law. That if Parliament forms a considered judgement, that there is considered judgement, that there is a basis for a differentiation in this context or in any any other. this context or in any any other. It is most unlikely that a court is going to intervene on the sensitive going to intervene on the sensitive subjects of social policy that we are here concerned with.
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I do hear what the noble Lord is saying. My role today, as I'm sure saying. My role today, as I'm sure the noble Lord understands, is to advise noble Lords on risks as we advise noble Lords on risks as we see them, and for noble Lords to make a decision as to how they wish to interpret this with regard to to interpret this with regard to amendments. But I am grateful for the point that he makes my Lords the point that he makes my Lords noble.
Lords may wish to note that these amendments would lead to different treatment for those detained under the Mental Health Act and those detained under the Mental Capacity Act. Only those detained under the Mental Capacity Act would be excluded from assisted dying. Noble may wish to consider whether this is justifiable given the detention criteria for detention under both acts is similar, and the decision on which act to use is largely a matter of professional discretion. Operationally, My Lords, these amendments could also create confusion for practitioners because they depart from the principle that capacity assessments are decision and time specific, so additional guidance and training would be needed.
Finally, as noble Lords will be aware, these amendments have not had technical drafting support from officials. And so the way they are currently drafted means that they may not be fully workable, effective or enforceable. But the issues raised are, rightly a matter for noble Lords to consider and decide.
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He sits down, and I've heard this outline of the government's position. Am I correct, then, in position. Am I correct, then, in understanding the government has no position on ensuring that this bill is safe for vulnerable groups of people?
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I would not draw that assumption. Quickly. The question, I think a number of noble Lords are concerned number of noble Lords are concerned about when they discussing this amendment is that they see that the Mental Capacity Act 2005. Of course, there's been updated guidance. I think it might be helpful to help the House, those who are concerned that this act may be 20 years out of date, it might be helpful for them to talk about any guidance that's been updated, so it's not seen as out of date, if that makes sense.
Just to clarify, we're not dealing with an act that was set in
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stone in 2005, and things have changed since then. I'm grateful to the noble Lord. I feel this probably would be a I feel this probably would be a very appropriate point to move on to my noble and learned friend.
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But just to pick up what the noble Lord, Lord Carmel, is saying, he's saying, I think that over the years it's been updated and people have taken account of improvements. And he's absolutely right, from my
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the test of capacity of an individual? Well, I hope that the comments I've made already give an I've made already give an indication of where we are concerns rather than going to further areas, rather than going to further areas, but I'd be very happy to look at the point that the noble Lord does the point that the noble Lord does make. I also wish to raise points relating to the European Convention on Human Rights. As before, these are potential risks that I am raising to inform noble Lords in their decision making.
But I do wish to be clear that the underlying policies are rightly a matter for Parliament. Noble Lords may wish to note the requirement for an objective, proportionate and reasonable justification for treating those who have previously, in a different context, lacked capacity differently from others who have not. Further, noble Lords may wish to consider whether there is justification for different treatment, where an application for deprivation of liberty has been made, but not necessarily completed or approved. In the absence of justifications that are sufficient to persuade a court.
The amendments may conflict with obligations, specifically article 14 on the prohibition of discrimination. When read with article eight to confirm to noble Lords if a court finds that primary legislation is incompatible, it may make a declaration of incompatibility. This does not invalidate legislation, as is usual. The
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government would then consider. Grateful to the noble Lady, the Minister, for making that point. Minister, for making that point. That was the question, I think, that I asked her last time. The reason why I rise is because it's reason why I rise is because it's very relevant to the question that I posed to the noble and learned Lord, Lord Falconer. It's very Lord, Lord Falconer. It's very important that we put protections on the face of the legislation, because that provides protection because that provides protection from them being subsequently unpicked, whether by domestic courts or by the European Court of Human Rights.
If they're only in a code of practice or guidance, then that doesn't provide that protection against those legal challenges. So I just wondered if the noble Lady would just confirm that what I've said is correct.
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Well, I'm sure that my noble and learned friend will comment on the points that the noble Lord makes. points that the noble Lord makes. But the point I was wishing to say, and it might be helpful in this and it might be helpful in this regard, that it is usual practice for government to consider and address these matters, and noble Lords will be aware that there is a range of ways of dealing with that. That may be amending primary legislation or through a remedial legislation or through a remedial order or by declaration of incompatibility.
And that is the
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usual practice. She agreed.
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She agreed. In relation to human rights. Law. That if Parliament forms a considered judgement, that there is considered judgement, that there is a basis for a differentiation in this context or in any any other. this context or in any any other. It is most unlikely that a court is going to intervene on the sensitive going to intervene on the sensitive subjects of social policy that we are here concerned with.
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I do hear what the noble Lord is saying. My role today, as I'm sure saying. My role today, as I'm sure the noble Lord understands, is to advise noble Lords on risks as we advise noble Lords on risks as we see them, and for noble Lords to make a decision as to how they wish to interpret this with regard to to interpret this with regard to amendments. But I am grateful for the point that he makes my Lords the point that he makes my Lords noble.
Lords may wish to note that these amendments would lead to different treatment for those detained under the Mental Health Act and those detained under the Mental Capacity Act. Only those detained under the Mental Capacity Act would be excluded from assisted dying. Noble may wish to consider whether this is justifiable given the detention criteria for detention under both acts is similar, and the decision on which act to use is largely a matter of professional discretion. Operationally, My Lords, these amendments could also create confusion for practitioners because they depart from the principle that capacity assessments are decision and time specific, so additional guidance and training would be needed.
Finally, as noble Lords will be aware, these amendments have not had technical drafting support from officials. And so the way they are currently drafted means that they may not be fully workable, effective or enforceable. But the issues raised are, rightly a matter for noble Lords to consider and decide.
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He sits down, and I've heard this outline of the government's position. Am I correct, then, in position. Am I correct, then, in understanding the government has no position on ensuring that this bill is safe for vulnerable groups of people?
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I would not draw that assumption. Quickly. The question, I think a number of noble Lords are concerned number of noble Lords are concerned about when they discussing this amendment is that they see that the Mental Capacity Act 2005. Of course, there's been updated guidance. I think it might be helpful to help the House, those who are concerned that this act may be 20 years out of date, it might be helpful for them to talk about any guidance that's been updated, so it's not seen as out of date, if that makes sense.
Just to clarify, we're not dealing with an act that was set in
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stone in 2005, and things have changed since then. I'm grateful to the noble Lord. I feel this probably would be a I feel this probably would be a very appropriate point to move on to my noble and learned friend.
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But just to pick up what the noble Lord, Lord Carmel, is saying, he's saying, I think that over the years it's been updated and people have taken account of improvements. And he's absolutely right, from my
10:56
Lord Falconer of Thoroton (Labour)
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Lord Falconer of Thoroton (Labour)
own knowledge of the working of the act, that's an absolutely valid point to make. Could I could I repeat what I said earlier that we need to discuss this? Can I deal with the interventions after I'd made my intervention? First of all, Baroness O'Loan, she rightly identifies the risks that arise. That is why I think what the Baroness Finlay is saying is right. We need to build in some form of enhanced protection. As far as Baroness Berridge is concerned.
This, this, this amendment is limited to Dols under the Mental Capacity Act. It does not include any exercise of the inherent jurisdiction of the courts of somebody whose liberty is being taken away. The Baroness Berridge is very welcome, and I will give her notice of any meeting that we have to come and discuss that with us. As far as the noble Lord Lord Harper is concerned, how one provides the protection and it's got to be effective will depend, first of all, on the discussions that take place.
I would envisage putting forward an amendment or maybe agreeing that somebody else put forward amendment. The extent to which it will involve the Minister having powers, I cannot tell you, but it will be something that we will discuss as far as what the noble Minister. My, my, my, my noble friend Baroness Merron has said, the points that she was making about discrimination relate to a situation where people who had a deprivation of liberty order in the past, or even those who had one now, were excluded altogether from the right to an assisted dying.
When the nature of the Mental Capacity Act is, it should be done on a case by case basis. What I am proposing we discuss is how do you provide enhanced protection rather than excluding? I hope in the light of what I've said, the noble Baroness Baroness Finlay and the noble Baroness Baroness Berger, on behalf of Baroness Keeley, would amendment.
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Okay. Pick the point up that the noble
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Pick the point up that the noble Lord Lord Pannick said. I agree with what he said, that a court is unlikely to interfere with unlikely to interfere with important social and economic policy that's been decided by Parliament, but I think that rather Parliament, but I think that rather reinforces the point I made about why it's important these protections are on the face of the
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legislation. I'm grateful to those who contributed to this discussion. I did make clear at the beginning that I was probing, and I'm most
This, this, this amendment is limited to Dols under the Mental Capacity Act. It does not include any exercise of the inherent jurisdiction of the courts of somebody whose liberty is being taken away. The Baroness Berridge is very welcome, and I will give her notice of any meeting that we have to come and discuss that with us. As far as the noble Lord Lord Harper is concerned, how one provides the protection and it's got to be effective will depend, first of all, on the discussions that take place.
I would envisage putting forward an amendment or maybe agreeing that somebody else put forward amendment. The extent to which it will involve the Minister having powers, I cannot tell you, but it will be something that we will discuss as far as what the noble Minister. My, my, my, my noble friend Baroness Merron has said, the points that she was making about discrimination relate to a situation where people who had a deprivation of liberty order in the past, or even those who had one now, were excluded altogether from the right to an assisted dying.
When the nature of the Mental Capacity Act is, it should be done on a case by case basis. What I am proposing we discuss is how do you provide enhanced protection rather than excluding? I hope in the light of what I've said, the noble Baroness Baroness Finlay and the noble Baroness Baroness Berger, on behalf of Baroness Keeley, would amendment.
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Okay. Pick the point up that the noble
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Pick the point up that the noble Lord Lord Pannick said. I agree with what he said, that a court is unlikely to interfere with unlikely to interfere with important social and economic policy that's been decided by Parliament, but I think that rather Parliament, but I think that rather reinforces the point I made about why it's important these protections are on the face of the
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legislation. I'm grateful to those who contributed to this discussion. I did make clear at the beginning that I was probing, and I'm most
10:58
Baroness Finlay of Llandaff (Crossbench)
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Baroness Finlay of Llandaff (Crossbench)
grateful to particularly the noble Lady Baroness Hollins, for pointing out that one of the difficulties for assessors is knowing how reliable the information is that reliable the information is that they are able to access. It would seem that we do need to have some way to make sure that people who could be particularly at risk could be particularly at risk should have an enhanced level of assessment for in the protections relevant to them. Sorry, should I
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not be speaking now? Yes. Of course. Okay. I'm sorry, I apologise.
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Okay. I'm sorry, I apologise. I was simply. Being told by the whips that Baroness Berger had to withdraw her Baroness Berger had to withdraw her amendment first. And I apologise for the discourtesy.
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Hoping to sum up. And then I would willingly hand over to the noble Lady Baroness Berger to withdraw the amendment. I think withdraw the amendment. I think that that we do need to make sure that the face of the bill makes it clear that there is a level of particularly enhanced assessment for several groups of people. This will only be one, but people who are, for whatever reason, particularly vulnerable. And I hope that the number of meetings that we have will include everybody who has a concern over this going forward to to Report stage.
I do think it is of concern, though, that the code of Practice for the Mental Capacity Act has still not finished being updated, and I do hope that next year we will see an updated version, because the one that's currently in place has actually, in some ways, a little bit out of date, given the model, the the modern world we live in. But with all that, if the noble Lady would like to withdraw her amendment, I would be delighted to withdraw mine.
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not be speaking now? Yes. Of course. Okay. I'm sorry, I apologise.
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Okay. I'm sorry, I apologise. I was simply. Being told by the whips that Baroness Berger had to withdraw her Baroness Berger had to withdraw her amendment first. And I apologise for the discourtesy.
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Hoping to sum up. And then I would willingly hand over to the noble Lady Baroness Berger to withdraw the amendment. I think withdraw the amendment. I think that that we do need to make sure that the face of the bill makes it clear that there is a level of particularly enhanced assessment for several groups of people. This will only be one, but people who are, for whatever reason, particularly vulnerable. And I hope that the number of meetings that we have will include everybody who has a concern over this going forward to to Report stage.
I do think it is of concern, though, that the code of Practice for the Mental Capacity Act has still not finished being updated, and I do hope that next year we will see an updated version, because the one that's currently in place has actually, in some ways, a little bit out of date, given the model, the the modern world we live in. But with all that, if the noble Lady would like to withdraw her amendment, I would be delighted to withdraw mine.
11:01
Baroness Berger (Labour)
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Baroness Berger (Labour)
My Lords, just in advance of withdrawing the amendment, I just would like to put on record just the magnitude of this issue. There the magnitude of this issue. There were, in the last recorded year, were, in the last recorded year, 141,925 people that had the deprivation of liberty standards. So deprivation of liberty safeguards the dolls standard authorisations granted, and only 3% of the applications that were fully assessed and completed were not granted. 97% of those applications were granted. I've listened very closely to what my noble friend has said, and I look forward to the meetings that we will have further to our deliberations today and I, on that basis, withdraw the amendments.
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Is it your Lordships pleasure that this amendment be withdrawn? Amendment by leave withdrawn. Amendment 16. Is it your is it your Lordships pleasure that this Lordships pleasure that this amendment be withdrawn? Amendment by leave withdrawn in clause one
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by leave withdrawn in clause one amendment 17. Lord Beith to. Speak. To amendment. 17 309 A in the
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To amendment. 17 309 A in the name of Lord Beith. Beith, which I have supported, and Lord Beith
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Is it your Lordships pleasure that this amendment be withdrawn? Amendment by leave withdrawn. Amendment 16. Is it your is it your Lordships pleasure that this Lordships pleasure that this amendment be withdrawn? Amendment by leave withdrawn in clause one
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by leave withdrawn in clause one amendment 17. Lord Beith to. Speak. To amendment. 17 309 A in the
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To amendment. 17 309 A in the name of Lord Beith. Beith, which I have supported, and Lord Beith
11:02
Baroness Fraser of Craigmaddie (Conservative)
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Baroness Fraser of Craigmaddie (Conservative)
sends his sincere apologies that he cannot be here today. I will also speak to amendment 62 in my name, and I thank the noble and learned Lord Faulkner for his discussions with both Lord Beith and myself on with both Lord Beith and myself on how this Bill affects Scotland. These amendments are probing These amendments are probing amendments. They seek to establish the scope of the Bill firstly with regard to residents of England who regard to residents of England who who may find themselves availing of Scottish Health Services.
Amendment 17 and 309 a remove an anomaly in the bill under which some residents in England, close to the Scottish border, will be excluded from its scope because they are registered with a Scottish GP. This is relatively common in border areas, as it may be that a Scottish GP is closer than the nearest English practice, or it may reflect a desire to stay with the same practice after moving house. And the BMA have identified cross-jurisdictional protection for doctors supporting their patients in shared care arrangements across borders as a gap in this bill that they would like to see addressed at Committee stage.
The Scottish Ambulance Service have also requested further clarity on what paramedics should do or not do across border areas. How does the noble Lord and learned Lord plan to address these issues? But my amendment 62 is about whether the remit of the bill extends, perhaps unwittingly, to Scottish doctors as it probes whether any Scottish GP, whether or not you are registered with them, can undertake preliminary discussions. The amendment refers to section three on page one of the bill and the steps taken under sections eight, ten, 11 and 19.
Section eight refers to the preliminary discussion, the initial request for assistance and first declaration. So that is done by the terminally ill person who under Lord Reay must be in England and Wales. But sections ten and 11 are about the role of doctors. So my reading of section of subsection one three, which was inserted in the other place, is that steps eight, ten, 11 and 19 must be taken when the terminally ill person is in England or Wales.
But steps ten and 11 only by doctors in England and Wales, not sections eight. The initial request for assistance, or 19 confirmation of the request for assistance. The second declaration. They could be undertaken by any GP and as such the Bill, as it stands, would permit discussions to be undertaken by GPS in Scotland, even though they would not be regulated under this Bill. Is this what the sponsors of the bill intended? I believe there would be a number of consequential issues that might need to be addressed, depending on the territorial extent of the bill.
For example, can the Noble and Leonard Lords say whether the recording required of the preliminary discussion in clause seven would work for Scottish GPS? And given the very separate record keeping of NHS Scotland and NHS England, which he and I have discussed, and the considerable challenges of cross border data sharing in the context of health, particularly in primary care and the separate Scottish legal context. Where does that leave the offence of destruction of documentation in clauses 35 and 36, if the preliminary discussion is undertaken by a Scottish GP? If the intention is that Scottish GPS can undertake these discussions, then can I ask the sponsors to clarify this for the record? But if if this is the intention, then can the noble and learned Lord consider whether the territorial extent needs to be clarified in other areas of the bill? And if it is not the intention, then does the noble and learned Lord consider that further amendments need to be tabled to ensure that this loophole is closed? Perhaps he could take us through the provisions relating to Scotland in this response and clarify.
I believe that when parts of the Bill were extended to Scotland at Report stage, the sponsor did not have time to explain why they were needed or what they did. The hon. Member for Glasgow West asked whether the bill sponsors had had any conversations with Scotland's Lord advocate and the Scottish Government, and the hon. Member for Spen Valley was only able to confirm that she had taken legal advice from government officials to ensure devolution is respected. She stated that conversations had already started and would continue where legislation that affects other jurisdictions needs to be amended.
So could the Minister confirm for us what guidance the government has provided regarding the provisions relating to Scotland and their necessity? As this House is well aware, the Scottish Parliament is currently going through its own stages on an assisted dying private Member's Bill in Holyrood. So we are facing the very real possibility of a two tier system in Britain, something which the former Prime Minister, Gordon Brown, has highlighted as being extremely concerning. There is currently a sharp divide between what has been proposed for Scotland and what we have before us here.
The amendments in this group do not affect in any way what happens in Scotland. But like the former Prime Minister, I am very concerned that we could find ourselves in a situation where people are moving between the two jurisdictions. At the very least, I would have expected there to be intensive consultation between the two parliaments. The Scottish Cabinet Secretary for health has written a number of letters to the lead Committee on Assisted Dying in the Scottish Parliament, in which he acknowledges that the Scottish and UK government officials must continue to hold discussions on the legislative competence issues.
Is the Minister able to say more about these discussions? Are they confined to legislative competence or do they extend to to issues such as delivery timescales, the regulatory framework of medical practitioners across the UK, and the intention to give Scottish Ministers the authority to determine approved substances to use. All of which Mr. Grey has highlighted as concerns, and are indicative of the problems of having potentially different systems north and south of the border. It seems to me, in conclusion, my Lords, that matters are moving and changing at pace, both with additions to this Bill and the Scottish Bill.
And if things are done in piecemeal or with haste, we are in danger of the assisted dying becoming another deposit return scheme. Although you can't return from being dead. The deposit return scheme, my Lords, was an example of the two parliaments wanting to implement something that needed careful consultation and co-operation across the UK, legislating separately, both totally within their devolved areas. But in the case of Scotland ending up with a bill that could not be implemented because of the cross-border issues that had not been fully acknowledged and addressed.
Addressing these issues and getting clear answers from the bill's sponsors and the Minister are what these group of amendments are about and I believe are essential. My
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Lords, I beg to move. Amendment proposed clause. One, page. One, line 11.
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One, line 11. After England.
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Insert Scotland. Voice speech on amendment 17. In mystery, particularly in relation to the Scottish Ambulance Service,
Amendment 17 and 309 a remove an anomaly in the bill under which some residents in England, close to the Scottish border, will be excluded from its scope because they are registered with a Scottish GP. This is relatively common in border areas, as it may be that a Scottish GP is closer than the nearest English practice, or it may reflect a desire to stay with the same practice after moving house. And the BMA have identified cross-jurisdictional protection for doctors supporting their patients in shared care arrangements across borders as a gap in this bill that they would like to see addressed at Committee stage.
The Scottish Ambulance Service have also requested further clarity on what paramedics should do or not do across border areas. How does the noble Lord and learned Lord plan to address these issues? But my amendment 62 is about whether the remit of the bill extends, perhaps unwittingly, to Scottish doctors as it probes whether any Scottish GP, whether or not you are registered with them, can undertake preliminary discussions. The amendment refers to section three on page one of the bill and the steps taken under sections eight, ten, 11 and 19.
Section eight refers to the preliminary discussion, the initial request for assistance and first declaration. So that is done by the terminally ill person who under Lord Reay must be in England and Wales. But sections ten and 11 are about the role of doctors. So my reading of section of subsection one three, which was inserted in the other place, is that steps eight, ten, 11 and 19 must be taken when the terminally ill person is in England or Wales.
But steps ten and 11 only by doctors in England and Wales, not sections eight. The initial request for assistance, or 19 confirmation of the request for assistance. The second declaration. They could be undertaken by any GP and as such the Bill, as it stands, would permit discussions to be undertaken by GPS in Scotland, even though they would not be regulated under this Bill. Is this what the sponsors of the bill intended? I believe there would be a number of consequential issues that might need to be addressed, depending on the territorial extent of the bill.
For example, can the Noble and Leonard Lords say whether the recording required of the preliminary discussion in clause seven would work for Scottish GPS? And given the very separate record keeping of NHS Scotland and NHS England, which he and I have discussed, and the considerable challenges of cross border data sharing in the context of health, particularly in primary care and the separate Scottish legal context. Where does that leave the offence of destruction of documentation in clauses 35 and 36, if the preliminary discussion is undertaken by a Scottish GP? If the intention is that Scottish GPS can undertake these discussions, then can I ask the sponsors to clarify this for the record? But if if this is the intention, then can the noble and learned Lord consider whether the territorial extent needs to be clarified in other areas of the bill? And if it is not the intention, then does the noble and learned Lord consider that further amendments need to be tabled to ensure that this loophole is closed? Perhaps he could take us through the provisions relating to Scotland in this response and clarify.
I believe that when parts of the Bill were extended to Scotland at Report stage, the sponsor did not have time to explain why they were needed or what they did. The hon. Member for Glasgow West asked whether the bill sponsors had had any conversations with Scotland's Lord advocate and the Scottish Government, and the hon. Member for Spen Valley was only able to confirm that she had taken legal advice from government officials to ensure devolution is respected. She stated that conversations had already started and would continue where legislation that affects other jurisdictions needs to be amended.
So could the Minister confirm for us what guidance the government has provided regarding the provisions relating to Scotland and their necessity? As this House is well aware, the Scottish Parliament is currently going through its own stages on an assisted dying private Member's Bill in Holyrood. So we are facing the very real possibility of a two tier system in Britain, something which the former Prime Minister, Gordon Brown, has highlighted as being extremely concerning. There is currently a sharp divide between what has been proposed for Scotland and what we have before us here.
The amendments in this group do not affect in any way what happens in Scotland. But like the former Prime Minister, I am very concerned that we could find ourselves in a situation where people are moving between the two jurisdictions. At the very least, I would have expected there to be intensive consultation between the two parliaments. The Scottish Cabinet Secretary for health has written a number of letters to the lead Committee on Assisted Dying in the Scottish Parliament, in which he acknowledges that the Scottish and UK government officials must continue to hold discussions on the legislative competence issues.
Is the Minister able to say more about these discussions? Are they confined to legislative competence or do they extend to to issues such as delivery timescales, the regulatory framework of medical practitioners across the UK, and the intention to give Scottish Ministers the authority to determine approved substances to use. All of which Mr. Grey has highlighted as concerns, and are indicative of the problems of having potentially different systems north and south of the border. It seems to me, in conclusion, my Lords, that matters are moving and changing at pace, both with additions to this Bill and the Scottish Bill.
And if things are done in piecemeal or with haste, we are in danger of the assisted dying becoming another deposit return scheme. Although you can't return from being dead. The deposit return scheme, my Lords, was an example of the two parliaments wanting to implement something that needed careful consultation and co-operation across the UK, legislating separately, both totally within their devolved areas. But in the case of Scotland ending up with a bill that could not be implemented because of the cross-border issues that had not been fully acknowledged and addressed.
Addressing these issues and getting clear answers from the bill's sponsors and the Minister are what these group of amendments are about and I believe are essential. My
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Lords, I beg to move. Amendment proposed clause. One, page. One, line 11.
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One, line 11. After England.
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Insert Scotland. Voice speech on amendment 17. In mystery, particularly in relation to the Scottish Ambulance Service,
11:09
Lord Shinkwin (Conservative)
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Lord Shinkwin (Conservative)
to the Scottish Ambulance Service, which my little friend Baroness Fraser of Craigmaddie has mentioned briefly in her speech, and I do so as someone who can remember just about all of my journeys in ambulances, some in agony after a fracture, some with the blue light flashing, others more sedate. But what marked them all was the sense that however much pain I was in, I was nonetheless safe. The ambulance crew were in control of the situation.
Karen, competent and consistently professional. That is my abiding memory. Based on first hand experience. So my thoughts. I am concerned, as I understand, is the Scottish Ambulance Service, that there is currently no guidance on this specific issue, even though its absence has significant practical implications. Simply put, from an ambulance, frequent travellers perspective, but not this amendment. Ambulance crews or other healthcare professionals might well not feel fully in control of the situation.
And that's just not where you want to be as a potential patient needing urgent emergency care. Surely emergency services operating across Scotland England boundary not only need but desire. Clear guidance. For example, what exactly is a paramedic meant to do if they are called out because an assisted death. Which of course Tando and indeed has done on occasion in other jurisdictions where such legislation has been implemented. Badly wrong, leaving the individual seriously injured but very much alive.
It does happen. My voice. Yet the bill, as far as I can see, is silent on this point, which is not much use to a paramedic desperately wanting to provide care when an emergency response is requested due to complications such as choking or vomiting. My Lords, I'm not aware of this having been triggered in the impact assessment or of John Grady having received an answer when he raised this very issue at Report stage. In the other place.
So I'd be very grateful if the noble Baroness Vere Minster to share with the House in her closing remarks what work has been done by the government to evaluate and address such an important cross-border issue?
Karen, competent and consistently professional. That is my abiding memory. Based on first hand experience. So my thoughts. I am concerned, as I understand, is the Scottish Ambulance Service, that there is currently no guidance on this specific issue, even though its absence has significant practical implications. Simply put, from an ambulance, frequent travellers perspective, but not this amendment. Ambulance crews or other healthcare professionals might well not feel fully in control of the situation.
And that's just not where you want to be as a potential patient needing urgent emergency care. Surely emergency services operating across Scotland England boundary not only need but desire. Clear guidance. For example, what exactly is a paramedic meant to do if they are called out because an assisted death. Which of course Tando and indeed has done on occasion in other jurisdictions where such legislation has been implemented. Badly wrong, leaving the individual seriously injured but very much alive.
It does happen. My voice. Yet the bill, as far as I can see, is silent on this point, which is not much use to a paramedic desperately wanting to provide care when an emergency response is requested due to complications such as choking or vomiting. My Lords, I'm not aware of this having been triggered in the impact assessment or of John Grady having received an answer when he raised this very issue at Report stage. In the other place.
So I'd be very grateful if the noble Baroness Vere Minster to share with the House in her closing remarks what work has been done by the government to evaluate and address such an important cross-border issue?
11:13
The Lord Bishop of Norwich (Bishops)
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The Lord Bishop of Norwich (Bishops)
My Lords, I rise to support the amendments 17 and 309 A proposed by the noble Lord. Lord, be so ably explained by the noble Baroness, Lady Fraser, and in standing I declare an interest in that. My wife is a GP and a medical examiner. So this bill has had much discussion at home, but also having spent ten years living in Northumberland with friends who live along the Scottish border, many of those living near enough the border have chosen very deliberately to be registered with the Scottish GP, because then they receive free prescriptions.
So this does arise to me a number of questions to the noble and learned Lord. Because if you live on the Scottish, on the English side of the border, say at Cornhill on Tweed, and your GP is in Coldstream, the the sense of continuity of care that GPS give to their patients is so vitally important for that GP patient relationship. Indeed. This House was reminded yesterday in the excellent maiden speech of the noble Baroness, Lady Gerada, when she said that continuity seeing lives unfold across time gives general practice its unique moral and social power.
It allows us to see people as whole human beings, not as isolated organs or diagnoses. So I'm I'm interested in this probing amendment to discover more about how that continuity of care that is, is so essential in primary health can can be continued, but also how those GPS operating in Scotland, if this bill is proposed and and a bill comes forward within the Scottish Parliament, of course, they are likely to be very different in their approaches. So I'm keen to understand from the noble and learned Lord what discussions have taken place to give this House confidence that Scottish GPS will receive the required training in any system that might be in place for for their patients who who live just across the River Tweed.
My second question around supporting these probing amendments is about access to to healthcare. For those living along the the English Scottish border. If you live in Berwick upon Tweed, you may sometimes choose to attend the Borders General Hospital in in Melrose, which I think is 37 miles away. Or you have the other choice of of going down the A1 that's not yet been dualled to the Cramlington Hospital, over, over 50 miles away. And and whilst in Berwick there is the excellent Berwick Cancer cars that volunteers help patients to get to places.
I can fully understand how this is utterly exhausting for people and people living in remote parts of the borders. Faced with that length of drive, when they're not feeling well, when they're needing to get to appointments, perhaps at Cramlington, 55 miles away, could have a greater sense of wanting to seek to end their lives because of the stress, the just sheer exhaustion that there comes with travelling such distances for cancer treatment or other treatments for terminal illness. So I ask the noble and learned Lord, what consideration has been given
So this does arise to me a number of questions to the noble and learned Lord. Because if you live on the Scottish, on the English side of the border, say at Cornhill on Tweed, and your GP is in Coldstream, the the sense of continuity of care that GPS give to their patients is so vitally important for that GP patient relationship. Indeed. This House was reminded yesterday in the excellent maiden speech of the noble Baroness, Lady Gerada, when she said that continuity seeing lives unfold across time gives general practice its unique moral and social power.
It allows us to see people as whole human beings, not as isolated organs or diagnoses. So I'm I'm interested in this probing amendment to discover more about how that continuity of care that is, is so essential in primary health can can be continued, but also how those GPS operating in Scotland, if this bill is proposed and and a bill comes forward within the Scottish Parliament, of course, they are likely to be very different in their approaches. So I'm keen to understand from the noble and learned Lord what discussions have taken place to give this House confidence that Scottish GPS will receive the required training in any system that might be in place for for their patients who who live just across the River Tweed.
My second question around supporting these probing amendments is about access to to healthcare. For those living along the the English Scottish border. If you live in Berwick upon Tweed, you may sometimes choose to attend the Borders General Hospital in in Melrose, which I think is 37 miles away. Or you have the other choice of of going down the A1 that's not yet been dualled to the Cramlington Hospital, over, over 50 miles away. And and whilst in Berwick there is the excellent Berwick Cancer cars that volunteers help patients to get to places.
I can fully understand how this is utterly exhausting for people and people living in remote parts of the borders. Faced with that length of drive, when they're not feeling well, when they're needing to get to appointments, perhaps at Cramlington, 55 miles away, could have a greater sense of wanting to seek to end their lives because of the stress, the just sheer exhaustion that there comes with travelling such distances for cancer treatment or other treatments for terminal illness. So I ask the noble and learned Lord, what consideration has been given