Terminally Ill Adults (End of Life) Bill
Debate between Baroness Nicholson of Winterbourne and Baroness Levitt(2 days, 16 hours ago)
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Baroness Levitt (Lab)
I really need to get through this. Can all interventions be saved until the end? If I can get through the things I really need to tell the Committee about, I will take interventions.
Baroness Levitt (Lab)
I am so sorry. I mean no discourtesy to the noble Baroness, for whom I have a great deal of respect, but I must get through the matters that the Government need to tell the Committee about, so it can make decisions about this particular group.
Amendment 120A, in the name of the noble Baroness, Lady Coffey, is plainly contingent upon Parliament agreeing to a court-based application system. In that event, the noble Baroness’s amendment would then exclude those making applications to the court from obtaining legal aid or legal help otherwise sourced from taxes, except indirectly through benefits. The framework for legal aid funding is set out in the Legal Aid, Sentencing and Punishment of Offenders Act, known colloquially as LASPO—an old friend of mine. The Committee should note that there are no primary provisions permitting the grant of legal aid outwith LASPO, so the noble Baroness’s amendment would present a novel approach to extending those provisions. The Government’s view is that, if the principle contained within this amendment is the will of Parliament, the mechanism for achieving this may need to be considered within LASPO in order for there to be legislative coherence.
There is a further point your Lordships should note in relation to the noble Baroness’s amendment. Hearings related to assisted dying, as proposed by this Bill, are not currently in scope for legal aid funding within LASPO. But LASPO does contain provision for exceptional case funding, which provides for legal aid in circumstances in which the ECHR requires an individual to be able to be legally represented. The Government’s view is that excluding assisted dying hearings from legal aid funding, including the exceptional case funding mechanism, as a matter of principle and without exception could lead to a breach of convention rights.
I return to the amendments in the name of the noble Lord, Lord Carlile. Amendment 426 requires the court to be satisfied beyond reasonable doubt, first, that the applicant has sufficient capacity and, secondly, that to refuse to make the order would amount to a
“breach of the relevant human rights law”.
The Government have one concern and one observation. The concern is that it is not clear what the relevant human rights law means in this context. Given that there is currently no right to an assisted death under the convention, as drafted this would mean that the test could never be met. If the amendment refers to other rights, for clarity the Government feel that they should be specified.
The observation is that, as your Lordships will be aware, the expression “beyond reasonable doubt” means that it is the criminal standard of proof that applies. Thus, unsurprisingly, it is in criminal proceedings that the highest standard is generally required. In civil law, the criminal standard is usually reserved for cases where the courts are imposing a punitive measure and the issue to be determined is a question of fact, including findings as to states of mind, such as intentional recklessness. It would be unusual for there to be a requirement that a judge be satisfied to the higher standard on questions of clinical opinion and breaches of legal rights. That said, it would be a policy decision for Parliament whether cases of this kind required the application of a higher standard.
Amendment 426B, in the name of the noble Baroness, Lady Coffey, would require the physical attendance of the applicant in court. It seems that this would exclude any person who is unable to attend the hearing from accessing an assisted death. For this reason, this amendment would, in the Government’s view, engage with Article 8, on the right to private life, and Article 14, on the prohibition of discrimination, and that restriction would have to be objectively and reasonably justified in order to comply with ECHR obligations.
I turn to eligibility, and Amendments 69 and 95 in the name of the noble Lord, Lord Carlile. The Government have a concern that Amendments 69 and 95 would create uncertainty in relation to eligibility for assistance. It might be difficult to prove that a disease could not be halted for a short time, even in cases in which the clinical opinion is that its return and progression is inevitable. There may be a risk that this could be seen as creating unprincipled distinctions in eligibility and could therefore give rise to legal challenge, for example on the basis that excluding certain people is not justified under Articles 2 or 8 of the European Convention on Human Rights, and/or amounts to unjustified discrimination under Article 14.
On court-based mental capacity assessments, Amendment 116 would remove the use of the Mental Capacity Act and propose a different and untested approach to capacity. As part of this, the court would be required to play a more direct, investigative role than is standard practice in capacity assessments. The Government are concerned that this could create confusion for practitioners who have experience in applying, and are trained to apply, the test under the Mental Capacity Act. Switching to this new approach might risk undermining the quality of capacity assessments. There might also be a risk that it would create unprincipled distinctions in capacity by excluding anyone with any impairment of the brain or mind, even if that would not affect their capacity under the Mental Capacity Act. It would be important to be able to justify the different approach to prevent discrimination under the convention.
Amendments 427, 428, 613 and 781 would introduce the concept of independent persons who would be required to carry out various functions. It is not clear from the proposed new clauses how these independent persons would work together to carry out these functions or resolve any disagreements between them, or how the skills and experience of each profession would align with their duties. For example, under the new clause as currently drafted, a solicitor might be responsible for the collection and transportation of the approved substance. It seems that the solicitor would then be required to report on medical matters, such as pronouncing the death of the person, without any requirement that they complete medical training. The Government also have a concern that, should medical help be needed as an unforeseen consequence of the self-administration procedure, Amendment 613 might create a risk, if that independent person had no medical qualifications.
Amendment 427 would require the lethal dosage of the approved substance to be ingested by the person accessing an assisted death. Giving the word its ordinary meaning, “ingested” would not include intravenous or injectable administration. Ingestion is generally understood to mean taking a substance into the body via the gastrointestinal tract: that is to say, via oral, nasogastric or gastronomy routes. The Government believe that this is how most doctors would understand the word “ingest”. The Committee may wish to note that this amendment as drafted might prevent clinicians proposing a more clinically appropriate mechanism for a particular person, such as intravenous or injectable self-administration, or might have the effect of excluding some patients from having an assisted death even though they might be capable of self-administration by other means.
There are additional drafting issues. At the beginning of my speech, I observed that if Parliament were to allow some of these amendments, they might require some redrafting to make them workable. I give Amendment 626 as an example. First, the word “form” and the expression “lethal dosage of drugs” would, in the Government’s view, need more clarity in order not to give rise to uncertainty when regulations are drafted. Secondly, the requirement to specify the exact composition of each dosage might also raise issues of liability, intellectual property and safety. Thirdly, it should also be noted that what constitutes a lethal dose may be patient specific, depending on factors such as weight, tolerance, the patient’s health status and other medication, so the drafting may need to make provision for this. The noble Lord, Lord Carlile, readily acknowledged that there are likely to be some drafting issues. I can confirm the Government’s position is that, while we are neutral on all the policy choices reflected in these amendments, as on the Bill as a whole, the Government would provide drafting support to ensure that any amendments passed by either House are legally workable and consistent and coherent with the statute book.
Finally, Amendment 67, in the name of the noble Baroness, Lady Grey-Thompson, would require the Family Division of the High Court to make an order confirming compliance with the Act before a person could be provided with assistance. This would be in addition to consideration given by an assisted dying review panel. The Government have one observation: the amendment does not set out how and when a person’s case would be referred to the High Court. The Government feel that further detail would be needed in the primary legislation to ensure that supporting procedure rules and practice directions would be adequate.
That brings to an end my observations on behalf of the Government in relation to the workability of the Bill. I have not addressed all clauses, but I have a few moments left. As I said I would, if the noble Baroness, Lady Nicholson, wishes to make her intervention, I will take it.
Baroness Nicholson of Winterbourne (Con)
I thank the Minister. I would appreciate if it would be considered at some moment that the two medical professionals on the panel may not have any knowledge of hearing issues. There is about one week of a medical professionals’ training on hearing, and that of course is almost nothing. Unfortunately, in the United Kingdom, about 20 million people have hearing defects, some large and some lesser. None the less, when people are dying or are very poorly, they find understanding considerably more difficult. I want that point to be brought in, and I will raise it in considerable detail at the right moment. I merely ask the Minister to take account of it at this time.
Baroness Levitt (Lab)
I am sure the Committee entirely endorses what the noble Baroness said in relation to the importance of those who are hearing impaired. I think that, in these circumstances, this is not a matter for the Government; it is a matter for the proposer of the amendment and for the sponsor of the Bill should it be passed. However, the point remains an important one.
Child Grooming Victims: Compensation Awards
Debate between Baroness Nicholson of Winterbourne and Baroness Levitt(1 month, 3 weeks ago)
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Baroness Nicholson of Winterbourne
To ask His Majesty’s Government what steps they will take to ensure compensation awards to victims of child grooming scandals are made in a timely way.
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, there are three routes by which victims of child grooming may be awarded compensation. First, following a criminal conviction, a court can order compensation to be paid to the victim, but the criminal courts cannot embark on a detailed inquiry as to the extent of any injury, loss or damage. Secondly, victims can bring an action for damages for personal injury in the civil courts; the Government are abolishing the three-year limitation period so that it no longer operates as a barrier to compensation for such victims. Thirdly and finally, victims can apply to the criminal injuries compensation scheme. These awards are assessed on a case-by-case basis, and the majority are decided within 12 months.
Baroness Nicholson of Winterbourne (Con)
I thank the Minister for that very helpful reply and for our earlier meeting, but might I request a further meeting? These young ladies, who may not all have the strength of Madame Pelicot, will still be living in a highly corrupted community in terms of the activities that were perpetrated upon them earlier. Some of them may not be relevant for an award; none the less, the entire community does not seem to be honouring British law with regard to respect for women, young women and children. Would the Minister be willing to have a meeting, to discuss not the award but the wider implications which perhaps we might manage to do something to help?
Baroness Levitt (Lab)
It is always a pleasure to speak to the noble Baroness, and the answer is yes.