Baroness Fox of Buckley
Main Page: Baroness Fox of Buckley (Non-affiliated - Life peer)(1 day, 9 hours ago)
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Baroness Fox of Buckley (Non-Afl)
My Lords, I thank the noble Baroness, Lady Cass—that was totally compelling. We will all have to read it and reread it, but it gave us a real sense of what it would be like. Sometimes, we are talking in the abstract.
In a more concrete sense, I think of this group of amendments as the workers’ rights group. We must take seriously what is being asked of all the workers involved. If a Bill of this kind were to be passed, all sorts of workers associated with health and social care would be expected to deliver it. What happens if that goes against their conscience? This is why I have added my name to Amendments 268 and 617 in the name of the noble Baroness, Lady Finlay of Llandaff, which seek to make opt-in for doctors explicit in the Bill. It is important to extend any conscience protections to a wider range of workers who might not want to be involved in assisting in the death of others.
I wished to add my name, but there was not room for me, to Amendment 673 in the name of the noble Baroness, Lady Fraser of Craigmaddie. It is very important that all workers be free to refuse to participate without penalty. I have also tabled my own Amendment 657 and thank the noble Baronesses, Lady Smith of Newnham and Lady Eaton, for supporting it. It concerns proposing that the provision of assisting in someone’s death is not regarded as a medical treatment. We have heard excellent explanations of why, existentially, it should not be a medical treatment, and there are a range of ethical reasons for that. However, for the purposes of this group, the amendment is relevant because, if assisted dying is a medical treatment, this could put practical and regulatory pressure on doctors in particular in terms of their duties.
The aim of this group is quite straightforward, particularly in relation to opt-in: to ensure that no medical professional or related staff are forced to participate in assisted dying or undergo training in assisted dying against their will. I know that supporters of the Bill are keen fans of autonomy, so this group of amendments is indispensable. Let us make this an autonomous, positive choice for those workers who are happy to take part in the process. The noble Baroness, Lady Andrews, has reassured us that, under the Bill, there will be no pressure to participate. However, she will know that in many workplaces, unless opt-in is made explicit, workers’ rights are not always given full satisfaction.
However, as it happens, the noble and learned Lord, Lord Falconer, thinks that this opt-in should be in the Bill. He emailed us in January to tell us that, following extensive conversations with the BMA, “I believe that explicitly including the words ‘opt-in’ on the face of the Bill would provide greater reassurance to medical practitioners”. I agree. I was a bit disappointed that those amendments were not tabled more quickly, but they have now emerged. I am glad to see that there is an explicit opt-in provision, but it is too narrow and too exclusive, being confined to a co-ordinating doctor, an independent doctor and so on, as explained so well by the noble Baroness, Lady Finlay. This leaves out significant parts of the wider medical workforce. I am worried that GPs, nurses and other front-line staff could still be mandated to participate in either assistance or training regardless of their conscientious objection.
These concerns are not only about narrowly focusing on opting only for the co-ordinating or independent doctor. We must recognise the dangers of considering opt-in only in relation to medical professionals. Amendment 673, tabled by the noble Baroness, Lady Fraser, is a reminder not to leave out the plethora of staff who might well be asked to play a secondary role in assisted dying, such as those who work in care homes or prisons. What about the member of staff, perhaps a porter, who is asked to escort a patient to a room where an assisted death will take place?
Baroness Fox of Buckley (Non-Afl)
“For goodness’ sake”—well, a bit of empathy might be helpful.
Our main focus is understandably on doctors, even nurses, but we must be careful not to assume that those with medical degrees—the professionals—are entitled to a greater respect for their consciences than other relevant workers: like porters.
I have previously spoken about my qualms regarding the care sector being sidelined in discussions about the Bill. Care England has complained that it has been under-consulted, not least on “opt-out, opt-in”. This matters in terms of the unintended consequences of the Bill. In Care England’s survey of its members, 24% of providers said that staffing would be very difficult because of the likelihood of conscientious objection, speculating that if forced to comply, care staff will walk out. Imagine what a tragic unintended consequence that would be. Only 14% reported that staff would willingly participate in the procedure; 34% reported that their staff would not be willing to participate at all. On what constitutes participation, the Royal College of Nursing has reminded us in written evidence to the other place of the need to consider administrative work:
“protection should also extend to indirect involvement, such as administrative tasks or referrals, to ensure all”
professionals
“are supported in line with their personal and professional values”.
I now want to reflect briefly on the issue of training, which is so important in relation to these amendments. Practically everyone involved in providing medical or care services, particularly medical services, has to do mandatory training units. Obviously, they are studying at university, but there is, as we have heard, revalidation, CPD and so on. If a robust opt-in conscience clause does not cover all such training, might those who try to opt out get a career-limiting black mark against their name? Might those forced to do such training fail if they do not endorse assisted dying as a medical treatment of merit or receive professional sanctions if they give the wrong answers? I am looking for a guarantee from the noble and learned Lord that no workers will face legal or professional repercussions, including indirect penalties of discrimination, for declining to participate in either training or the procedure.
On my Amendment 657, despite the insistence when we discussed Wales last week that this is a change in criminal law, not a health Bill, the necessity to amend the constitution of the NHS and the huge changing expectation of medical ethics—
Lord Deben (Con)
Does the noble Baroness not find it peculiar that people who are very keen on employment rights in every other circumstance are not keen on employment rights in these circumstances and put their views on assisted suicide ahead of the right of very ordinary workers to say, “I don’t want to be part of it”?
Lord Pannick (CB)
The noble Baroness is making a point that contradicts the words of the Bill, as the noble Baroness, Lady Andrews, has explained. Clause 31(1) says in unambiguous terms:
“No person is under any duty to participate in the provision of assistance in accordance with this Act”.
We all agree with that. We all agree that employees, whatever their status, should be fully protected.
Baroness Fox of Buckley (Non-Afl)
Royal colleges and trade unions want better guarantees. When we discussed the Employment Rights Bill—
Lord Falconer of Thoroton (Lab)
I am not sure what further guarantees the noble Baroness and the noble Lord have in mind, because they will know from the Bill that Schedule 3 amends the Employment Rights Act 1996. It incorporates that anybody who is being prejudiced against because they will not participate in terminal illness matters is given every single right under the Employment Rights Act. First, the idea that they are not being given the same rights as everybody else is wrong and, secondly, I am not quite sure what point the noble Baroness is making when she says that there should be more rights.
Baroness Fox of Buckley (Non-Afl)
I sat for many hours through the debates on the Employment Rights Bill. When I said that there was a plethora of rights and that we were overdoing it, I was treated with some contempt.
I have to finish. The fear is that once assisted dying is normalised as a medical treatment, health professionals would be obliged to offer it as a medical treatment or, even worse, be under some obligation to explain this therapeutic option as part of their duty of care for eligible patients. They could be held negligent for not offering this treatment against their conscience. That would seem to be the implication of case law in the Montgomery ruling, which ruled that all reasonable therapeutic options needed to be presented to and discussed with patients. The worry here is that civil liability protections do not cover—
Lord Wilson of Sedgefield (Lab)
Can the noble Baroness bring her remarks to an end, as she is well over the 10 minutes?
Baroness Fox of Buckley (Non-Afl)
This is meant to be a debate. I have taken a lot of opposition points. Let me finish. The worry is that civil liability protections do not cover where a duty is owed to the patients. How can doctors who do not wish to offer or discuss assisted dying be sure that they do not face liability for failing to comply with their alleged duty to raise treatments?
When I have raised such concerns with supporters of the Bill, I have been reassured that now that we have passed the workers’ rights Bill—there are parts in this Bill, too—there will be lots of protections. They point out that, if there are any problems, staff can always use employment tribunals if they feel that they have been unfairly treated, although, as I say, trade unions are quite keen on an opt-in. But as those of us who sat through the hours and hours of deliberations on the Employment Rights Bill will know, employment tribunals have huge, years-long waiting lists. Also, such tribunals put the burden on the employee to demonstrate and prove detrimental treatment, which seems completely unfair.
It seems pertinent to note, as mentioned by the noble Baroness, Lady Fraser, that as the remedy in employment cases is damages not rehiring, this could lead to driving health and care workers out of the understaffed healthcare sector—not a good result. To finish, as the noble and learned Lord is a member of the party that rightly boasts of its commitment to workplace fairness and workers’ rights, I am simply hoping that he will be sympathetic to those amendments that put workers’ rights—guaranteed—centre stage in relation to assisted dying. It is not too much to ask.
The Lord Bishop of Southwark
My Lords, I am glad to follow the noble Baroness, Lady Fox of Buckley, because I added my signature to Amendment 673 in the name of the noble Baroness, Lady Fraser, as did the noble Lords, Lord Carlile and Lord Hunt of Kings Heath.
Allowing for some reticence on the necessity of this amendment, I just wish to make two points. First, the Bill allows an opt-out for registered medical practitioners: a health professional, a social care professional or a registered pharmacist. Administrative tasks are specifically not excluded. The Bill defines health professionals as medical practitioners, pharmacists and nurses, but it does not define care professionals. This is a lacuna, which will cause problems should this or any Bill on this basis pass your Lordships’ House.
Secondly, matters of acute conscience are not restricted to the immediate preparation of a lethal dosage or the medical oversight of the procedure. There will be, for reasons of practicality, not least of cost, pressure on all sorts of ancillary staff, as anyone in a health and care setting will attest. If they are co-opted, either directly or indirectly, into what becomes the final procedure, when the conscience of such an ancillary participant tells them that they should have nothing to do with such a procedure, is it right that they should face sanction or inhibition of their careers, or even dismissal? I suggest not and I hope that the House will support this amendment.
Lord Falconer of Thoroton (Lab)
We have discussed this before and the noble Lord, Lord Stevens, is right. He is referring to the 2006 Act—not the noble Lord’s Act but the one before it—which says that the obligation of the National Health Service is to provide treatment and care. There is then a question of whether that includes assisted dying, which is unresolved. If it is to be provided by the NHS then there must be some amendment to that Act, as it refers to the basic constitutional point.
That is of little assistance to a doctor who needs to know whether he could be in breach of any legal duty by not providing assisted dying. That is the key question that is raised—and it is unequivocally answered by Clauses 5 and 31.
Baroness Fox of Buckley (Non-Afl)
The confusion is that a doctor’s duty is to present a patient with all the possible treatments they could have. If they refuse to mention chemotherapy or that the patient could take this painkiller, they would be negligent and could get struck off. If assisted dying becomes a medical treatment, then, regardless of conscience clauses, a doctor would be under a duty to offer it as a treatment. If they did not, they would potentially be in breach of their medical role as a doctor and open to civil liability. Noble Lords cannot keep saying, “I have said opt-in, it’s fine, stop worrying, we’ve said that your duties are fine”. Those of us who are concerned about that doctor’s conscience are saying that if it is a medical treatment, their duty will be to offer it and that nothing said here will cancel that. They could lose their professional reputation and their job and end up in the courts. That is what we are worried about.
Lord Falconer of Thoroton (Lab)
May I say that the noble Baroness puts it brilliantly? Here is a range of treatments, or—deleting “treatments”—here is a range of things that can be done. One of them is assisted dying. The worry that the noble Baroness expresses is that if it is a thing that can be done, using it neutrally, if you do not tell the patient that then you could be negligent or in some problems. That is why, whether it is a treatment or not, we have dealt unequivocally with the problem by saying, “You are never under a duty to raise it”. It is not to be treated as being in the same category as the other treatments, such as chemotherapy. The noble Baroness, Lady Fox, expressed the problem exactly. We have addressed the problem. She may not like the answer but, as far as the doctors are concerned, they have complete clarity and complete protection.
Moving on from whether this is an opt-in or an opt-out—we have made it an opt-in, subject to the amendment being agreed—the next issue is the width of the opt-out in Clause 31. As I have pointed out, Clause 5(1) states:
“No registered medical practitioner is under any duty to raise the subject”.
Clause 31—I am sorry to weary noble Lords with this; we have looked at it a bit already—states:
“No person is under any duty to participate in the provision of assistance in accordance with this Act”.
That means that no person is under a duty to do the things referred to in Clause 26. Also:
“No registered medical practitioner is under any duty to become—the coordinating doctor … or the independent doctor … No registered medical practitioner, other than the coordinating doctor or the independent doctor, is under any duty to perform any function under or in connection with this Act … No health professional or social care professional is under any duty to respond”
to any request for information in connection with assisted death. Also, no
“registered pharmacist or registered pharmacy technician is under any duty to participate in the supply of an approved substance”.