Lord Falconer of Thoroton
Main Page: Lord Falconer of Thoroton (Labour - Life peer)(1 day, 11 hours ago)
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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 Harper (Con)
My Lords, I want to cover a couple of points and reflect on what the noble and learned Baroness, Lady Scotland, said, which was that, despite the debate, there is a sense that people are agreed that this should be an opt-in rather than an opt-out process. The problem is that the way the Bill is drafted does not make that clear, and that is not just my view but the view, as we have heard, of many of those who are going to be involved in delivering this service. I will not go into that in great detail because many people have done so, but the Royal College of General Practitioners thinks that there should be a register and a more explicit opt-in system. Some of the other royal colleges do too and, as I think somebody else said, the Royal College of Nursing thinks it should be very clear that no one should be forced to participate. Of course, I give way to the noble and learned Lord.
Lord Falconer of Thoroton (Lab)
The noble Baroness, Lady Gerada, made it clear that the Royal College of General Practitioners was not in favour of a register. It may well be in favour of an opt-in process, but not a register.
Lord Harper (Con)
The noble Baroness said that it was not in favour of a public register, and I did not say that it was, but that is a helpful clarification that the Committee has now been able to hear.
The problem, though, as I said, is with how the Bill is drafted. There are a couple of points. First, I strongly support Amendment 657, which says that assisted dying is not to be regarded as a medical treatment. As I said, I do not need to set out the details—the noble Lord, Lord Stevens, did that admirably. What I would ask the sponsor of the Bill, the noble and learned Lord, Lord Falconer, is whether he regards the provision of assisted suicide as a medical treatment or not—forgive me if he has said this on a previous occasion, but I do not think he has. If he does regard it as a medical treatment, that would be clear. I would not agree with that, but it would make it more important that we change the Bill to make it clear that it is not. If he does not think it is a medical treatment, I cannot see any objection to accepting this amendment and making that clear.
This is not dancing on the head of a pin; it is really important, because for this to be opt-in, not opt-out, everyone involved has to be clear about their responsibilities. The noble Baroness, Lady Andrews, read out Clause 31(1), which states:
“No person is under any duty to participate in the provision of assistance in accordance with this Act”.
There are two problems with that. First, they may not be under a duty according to the Bill, but the problem is, as the noble Lord, Lord Stevens, said, that if the provision of assisted suicide is regarded as medical treatment, medical professionals, in particular, have a whole range of other professional and legal duties that they have to undertake. They may not be compelled by the Bill to participate in providing assisted suicide, but some of their other legal duties may force them to do so if it is regarded as a medical treatment. It would be helpful to clear that up.
Lord Falconer of Thoroton (Lab)
I am absolutely amazed to hear that. Clause 5(1) says:
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.
That would mean, as a matter of law, that there is never a duty to raise it. Clause 31 says:
“No registered medical practitioner is under any duty to become … the coordinating doctor … or … the independent doctor”.
There could not be—take it from me—greater legal clarity that there is no legal obligation either to raise it or to participate in it. Whether it is a treatment or not, which is a most interesting philosophical question and I am not underplaying that issue, the reason that the terms of the Bill are so absolutely clear is so that no doctor could be in any doubt whatever that they are under no legal duty.
Lord Harper (Con)
The problem is that I do not think it is that clear, and it is not just me. If it were that clear, then the royal colleges that think that it should be made clearer would not think that. The problem is—
Lord Harper (Con)
Hang on, let me just finish the point. With respect, people on my side of the debate keep being told off for speaking at length. There is a choice here. I want to try to make my remarks brief, but if I am going to take lengthy interventions from the noble and learned Lord, which I am quite happy to do, then I do not expect to be shouted at if I end up going over the time limit. People cannot have it both ways, but I am delighted to take his intervention.
Lord Falconer of Thoroton (Lab)
I never make long interventions. The complaint of the doctors is that they want an opt-in and not an opt-out. Their complaint is not that it is not clear enough that they are under no duty to give advice and no duty to be a doctor under the Act.
Lord Harper (Con)
The noble and learned Baroness, Lady Scotland, said that there was a great agreement in the House that there should be an opt-in system, and the noble and learned Lord is nodding his assent to that. If the Bill delivered that, the royal colleges that say they want an opt-in system would presumably be content with it. They are not; they want it to be changed to deliver that opt-in system.
Lord Falconer of Thoroton (Lab)
I completely accept the point about opt-in. I am pressing the noble Lord on his question as to whether there could be a doubt that a doctor is under a duty to raise it, and I am saying that there is absolutely no doubt in the Bill that no doctor is under a duty to be the doctor under the Bill or to raise it under the Bill. On the question of opt-in, everybody accepts that there should be opt-in, and I have put a provision in my amendments to that effect.
Lord Harper (Con)
I am very clear that the Bill does not create a duty for people to participate. The problem is that, if there are other statutes and responsibilities for medical professionals, there is then a lack of clarity. It does not matter whether the noble and learned Lord thinks so; if the medical professionals who have to make judgments think it is not clear, that is a problem and it should be put beyond doubt. That is the only point I am making.
The second point comes down to the register. The noble Baroness, Lady Gerada, did not answer the question I put to her. She gave a long answer, but it was an answer not to my question but to a different one that I had not asked. I am grateful that she has just come back into the Chamber.
Baroness Blake of Leeds (Lab)
I cannot answer that specific question, and I am not sure it would be appropriate for me to do so. We note the comments that the noble Baroness made.
Lord Falconer of Thoroton (Lab)
My noble friend loves sometimes to overstate it, I have to say, but we should do our best to try to co-operate and reach agreement. I express my gratitude to the Committee for all the opportunities they have given me to listen over the past 15 days, with two more days to come.
I will deal with the issues that have been raised under four headings. First, is this an opt-in or opt-out system, and, if it is not an opt-in system, do we need to change it to make it one? Secondly, is the width of the opt-out in Clauses 5 and 31 wide enough? Thirdly, what should we do about the suggestion of the noble Baroness, Lady Fraser, and others of a register? Fourthly, the suggestion of the noble Baroness, Lady Cass, was significant, and we should think about whether that is workable in a variety of ways.
Is this an opt-in or opt-out system? I have spoken to a lot of people on this, in particular the BMA. It is not happy that the Bill in its current draft is adequately clear that it is an opt-in system. In accordance with the wishes of the BMA, and after considerable discussions with it, in Amendment 669A we have included a requirement that everybody who has the specialist training—which is a necessary requirement before you can participate as a doctor under the scheme—has opted in to the specialist training. The BMA was very clear, and I accept this, that opt-in should be in the Bill so that there can be no doubt about that. We have done that and I hope that everybody will agree with it.
Baroness Finlay of Llandaff (CB)
I do not quite understand, then, why I received a letter dated 26 March, just this week, from the Royal College of General Practitioners, requesting explicit clarification in the Bill to make it clear that there is no expectation on any doctor, including GPs. I wonder whether there were discussions with the royal college and whether its comments had been rejected.
Lord Falconer of Thoroton (Lab)
There is a difference between expectation on the one hand and opt-in on the other. We take the view, after discussions with the BMA, that opt-in is sufficient to make it clear that you have to actively take a step before you are required to participate. The fact that you have to opt-in means there is no expectation, one way or the other, that you need to opt-in. I take the view that that is an adequate response. I do not know whether the Royal College of General Practitioners had a chance to look at our amendments, but I suspect that they will be adequate in relation to that point.
From there, I go on to Clause—
Baroness O’Loan (CB)
I thank the noble and learned Lord for giving way. This really is the most important point. There are elements of the delivery of health service that require an ability to understand what a doctor is doing and what his views are. If we only have doctors opting in, we will not know which doctors have opted in, and they will not know which doctors have opted in. They may wish to do the training and then, after, to not participate in the process. That may change their views. Therefore, it is not sufficient to make a clause that says, as Amendment 669A does, that the doctors will opt in and therefore that deals with the problem of opting in, because it does not. The reality is, with great respect to the noble and learned Lord, that we need a specific provision for opting in in the Bill, as suggested by the noble Baroness, Lady Finlay.
Lord Falconer of Thoroton (Lab)
There is a specific provision for opting in. I am not quite sure what the noble Baroness is saying. It is absolutely clear that that is the provision.
I move on to the amendments to Clauses 5 and 31 on the width of the opt-out. As far as Clause 5 is concerned, as I indicated to the noble Lord, Lord Harper:
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.
A number of noble Lords, including the noble Lord, Lord Stevens, made the point, and he referred to Professor Ruck Keene and others’ articles on the problem. We have approached the question of whether it is a treatment or not on the basis of what provides a practical answer to doctors and medical professionals. If you say that it is not a treatment, I do not see why that would necessarily obviate the need, if you are worried about doctors or health professionals having, in particular circumstances, to raise it. The key thing for the doctor to know is there can never be a legal duty on him or her to raise it or to become a participant in the system.
What more could—
Lord Falconer of Thoroton (Lab)
Let me finish.
What more could one do to give protection to doctors? Beyond saying that there will never be a duty to raise it or to participate, I cannot think of what wording there could be.
Lord Stevens of Birmingham (CB)
I thank the noble and learned Lord for giving away. One answer would be to simply put in the Bill that this is not a treatment, in which case all the other consequences would not arise. The question, just to clarify, is: is he saying that assisted dying is deemed to be a treatment? Nevertheless, his Bill overrides the duties on a doctor affirmed by the Supreme Court in July 2023 in the McCulloch case.
Lord Falconer of Thoroton (Lab)
Yes, there can be no duty to raise a question of assisted dying if an Act of Parliament says that there is no duty to raise it. That case, the Montgomery case and the normal negligence cases do not in any way lurk in the background waiting to, as it were, stop this. It is absolutely plain that the effect of this provision and the provision in Clause 31 is that if you did not raise it, there can be no legal kickback of any sort. That is why it was phrased like that, and that is why putting in the words “it is not a treatment” would not be sufficient.
Lord Lansley (Con)
I entirely agree with what the noble Lord, Lord Stevens of Birmingham, just said. We just heard from the Minister that one of the possible implications of the Bill is that, because of Clause 41(4), the NHS Act 2006 would need to be amended in order to bring this service into the scope of what the NHS Act says is the role of the National Health Service.
Potentially, if I understood the Minister’s wording correctly, bringing assisted dying within the context of treatment under the NHS Act 2006, rather than amending the NHS Act to say that the NHS is going to provide this service, is entirely the wrong thing to do, but it does not form any part of the comprehensive service that the NHS provides for promoting the improvement of people’s physical and mental well-being.
How this Bill would be interpreted in the context of the responsibilities of the NHS, as the noble Lord, Lord Stevens, told us on a previous day, is a very important question to which the sponsor of the Bill is not giving us an answer.
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”.
Lord Harper (Con)
Given that I had raised the concern and the noble and learned Lord took care and trouble in responding to it, I listened very carefully to what he said. The problem is that what he said about no one being forced to participate in the steps set out in Clause 26 and all the other provisions would not cover—to pick the example from the noble Baroness, Lady Fox—the porter who is being asked to take the patient to the room in which they were to be assisted in ending their life. If that porter were to say, “I don’t wish to do that because I don’t wish to help this person end their life”, nothing in what the noble and learned Lord said would provide them with any protection, which is why many of us do not think this provision is wide enough.
The unfortunate thing is that it probably provides quite a lot of protection to the more senior people in this process—the doctor and the medical professionals—but it fails to provide protection to the more junior people involved in this process. Those without medical qualifications, such as the porters, the administrative staff, the cleaners and the other people who work in a healthcare setting, do not appear to be protected at all.
Lord Falconer of Thoroton (Lab)
In relation to a porter, for example, a porter cannot be required to be in the room or helping in—I said Clause 26 but I meant Clause 25, which is in relation to the provision of assistance; I apologise for that. The noble Lord has given an example of a cleaner. There are many other examples of administrative staff in a hospital, for example. The sponsors of the Bill have taken the view that there should not be a conscience clause in relation to, for example, a cleaner or somebody doing ordinary administrative tasks, because you have to make these institutions run properly. What there should be an absolute bar on is either being a doctor participating in the process or being actually involved in the process of providing the lethal drugs under Clause 25. We have drawn the line there, and it is for the House to decide whether it thinks the line is in the right place.
Lord Falconer of Thoroton (Lab)
Can I go on for a bit? I will come back at the end if there is time, but let us keep going.
Next, on the register, I think Amendment 189 from the noble Baroness, Lady Fraser, is trying to do two things. First, it is trying to have some sort of opt-in process, because it says:
“Registered medical professionals who are unwilling or unable to conduct preliminary discussion are not required to join the register under subsection (6)”.
That is her proposed new subsection (8). That is not really an opt-in; you are “not required to join”. My conversations, in particular with the BMA, make it clear that it wants the words “you’ve got to opt in”, so I am not sure that that bit on opt-in or opt-out quite gets it.
On the other point about a register, it might be that in time there should be a register. I am very strongly not in favour of putting a register in the Bill. Let the Secretary of State and the medical profession say if that is an appropriate thing to do. I do not think it goes to the fundaments of the Bill. Although I am struck by the robustness of the noble Lord, Lord Moore, on behalf of doctors, I do not think, without further consultation after the implementation period has gone through and without a bit more knowledge about what the effect might be, that one should willy-nilly put on to a public register, in the public domain, the names of people who are willing, and therefore people who are not willing, to do assisted dying.
Lord Lansley (Con)
In Amendment 189, the lead amendment in this group, my noble friend is looking for who one goes to in order to provide the necessary assistance to a person if the original conversation is not something the doctor wants to pursue. All doctors are supposed to have training, and they opt in to the training, but how do we know who they are if we do not have a register?
Lord Falconer of Thoroton (Lab)
The precise knowledge of who does it, where the list is kept, who registers with whom—for example, whether they register with the commissioner—is about detailed implementation, and I am strongly of the view that we should not try to get into the nitty-gritty in relation to that in the Bill. I recognise why the noble Baroness, Lady Fraser, proposes putting this into the Bill, but I hope she will understand why, first, in relation to opt-in, I am not sure it quite gets there, and, secondly, in relation to a register, I am not in favour of it at the moment.
Lord Deben (Con)
I am genuinely trying to help the noble and learned Lord for this reason: I am concerned about the person who wishes to avail themselves of this Bill. I do not understand how you do that effectively unless you can look at a list and get the person you want. I am concerned that those of us who want real protection must not overcomplicate the Bill, even if we are against it. That is why I am genuinely saying to the noble and learned Lord that if there is no list, I do not understand how somebody can, with ease and confidence, take part in something that I do not like but that, if it were the law, would be available. That is what I am concerned about. If there is no list, there is a great deal of obfuscation. It seems to me that it should be part of the policy of those presenting the Bill to expect a list.
Lord Falconer of Thoroton (Lab)
I am very grateful to the noble Lord for his assistance in relation to this matter. As far as I am concerned, precisely how one identifies who is available to do it should be worked out in the implementation because it goes to publicity and to what is the most convenient way of doing it, and I do not think that normally or sensibly this should be in the Bill.
The noble Baroness, Lady Cass, is proposing that in the course of the conversation, which is referred to in Clause 12, the person should say that this is their own choice. I think that is not necessary or appropriate where one of the things that the two doctors and the panel have to be satisfied of is the fact that this is the clear, settled and sustained view of the person. I do not think that putting words in, as it were, is appropriate.
I understand why the noble Baroness says that you should have the two doctors together, and they should refer to what is, in effect, the written record of the multidisciplinary team. If that is available, they should definitely do that, but I do not think it will be available in every case. One hopes that it will be, but I cannot be sure that it will, and that should not be a bar to doing it. I see the force of saying that the two doctors should do it together, but my anxiety is that, if you are looking for genuine safeguards, you have to have a position where the two doctors who have reached a view that the conditions are satisfied have done so independently of each other. I can see the convenience of doing it together, but I think it has to be done separately instead.
I have had the benefit of discussing with the noble Baroness, Lady Cass, many of the ideas that she has put forward; I have found that incredibly helpful. One of her helpful insights is that, in reality, this will in effect have to be some sort of specialist service. If you want somebody to help you in relation to this, it has to be somebody who has expertise in doing it. But that insight does not mean that it has to be completely separate from all the other care you are being provided with. Frequently, when someone is dying, they have a variety of specialists helping them as part of a team. If assisted dying is what the patient wants, I do not think that the specialist should feel that they have to be completely separated from the rest of the team looking after the patient.
Baroness Cass (CB)
May I respond to that? I have not said that they cannot be part of the team. It is likely that the person who is covering a particular area or locality will be known to the team and to the palliative care services. They may or may not be as familiar as other specialists—I hope not, by virtue of the fact that we are anticipating smaller numbers—but they would be a separate individual who comes in, like a cardiologist.
Lord Falconer of Thoroton (Lab)
I am sorry; I stand corrected. What I was getting at was that they should not feel that they have to separate themselves. If I wanted an assisted death, at home, I would like to think that the people caring for me would still be available to me up until it happened. I suspect that that would matter to me quite a lot.
Baroness Cass (CB)
They would; that is the point of it. Your co-ordinating professional, as I described them, would be with you throughout, as would the specialist assisted dying doctor, from the time you started engaging with them. You might want to check in with one or the other, depending on whether you wanted your symptoms addressed or another discussion about what the process of having an assisted death would be like.
Baroness Lawlor (Con)
May I check something regarding my Amendment 664? Given that the noble and learned Lord insists that no person will be under any duty to perform or provide for an act under this measure, will that apply to participation in training, since training is not a duty to do something?
Lord Falconer of Thoroton (Lab)
You have to opt in to training in consequence of my amendment. Therefore, there can be no duty to participate. I do not think it is necessary to say that in the Bill.
The noble Lord, Lord McCrea, who is not in his place, raised the point about care homes, hospices and other institutions. Along with the sponsor of the Bill in the Commons, I have had considerable conversations with Hospice UK. Its anxiety is that if it says “no”, institutionally, to assisted dying, that could affect in various ways its entitlement to funding, particularly from the state. I am alive to that concern, and we should deal with it in the Bill; I have been working on trying to do that. I should make it clear that this is limited to hospices only. We are looking at that area, and once we have done so, it may be limited to private—not NHS—hospices. It requires work, but the point made has validity in relation to hospices but not care homes.
Lord Harper (Con)
This will be my last intervention, I promise. I just want to press the noble and learned Lord on this issue. In the exchange we had earlier, he confirmed that in Clause 31 the right to not participate is “in the provision of assistance”. I was unclear about the definition of “provision of assistance” and he confirmed that it meant the steps set out in Clause 25 —he corrected himself—which is titled “Provision of assistance” and is about the endpoint of the process: the provision of the poisons that will end someone’s life. I think that he confirmed, but I want to make sure that I am absolutely clear so that I do not misrepresent him, that that means it would not be open to, for example, the porter who did not want to take the person to the room in which the substances would be administered to say that they had an objection to this process and would not carry it out. They would not be able to use the provisions under the Act, they would not have the protections, and I do not think that that is right.
Lord Falconer of Thoroton (Lab)
Clause 31(1) states that “No person”—it is not restricted to doctors—
“is under any duty to participate in the provision of assistance”,
as defined in Clause 25. Subsection (2) states that “No registered medical practitioner” has to become a “coordinating doctor” or an “independent doctor”. Subsection (3) states:
“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”.
I have set out my position on that, including in relation to the porter example. I do not think I should go further than that.
Baroness Finlay of Llandaff (CB)
My Lords, I hesitated but I want to come in on that, because I am not clear what the position is for care assistants and people who are involved in the intimate care of patients. In Australia in particular, there have been problems where staff such as care assistants, who are not qualified nurses, feel that they are providing the patient with their last bath and last meal and that it feels as if they are having to, in effect, prepare somebody for their execution—the end of their life. That might sound shocking in the way that it is expressed, but that is how it was relayed to me. Similarly, staff who are preparing a meal that turns out to be a person’s last meal can find that very distressing.
If I have heard the noble and learned Lord correctly, those staff will have no ability to have any conscience objection whatsoever. In effect, they are being treated as people who just have to operate in their job, like it or leave it. Is that correct?
Lord Falconer of Thoroton (Lab)
Not in that language, not at all. But if, suppose, you are a care assistant giving somebody a bath before the provision of assistance, there is no conscience clause in relation to that. I am not sure whether the noble Baroness is suggesting that if you are caring for somebody who you know is subsequently going to have an assisted death, there is some point at which you, as a care assistant, should be entitled to say, “I’m not going to provide assistance to that person because I find the issue of providing assistance contrary to my conscience”. But as far as the Bill is concerned, every person, doctor or not—that includes care assistants—is under no duty to participate in the provision of assistance in relation to the provision of the substance under Clause 25. Working back from that, the person does not have the protection.
Baroness Finlay of Llandaff (CB)
So, to clarify, the noble and learned Lord is not allowing a provision here to say that if you have strong feelings, for instance, you will be able to ask not to be rostered to work on that shift, or on that day, or in that situation, and instead be able to be moved to another place. One of the solutions in some places has been that when an assisted death is scheduled, the members of staff who do not want to work that day have a right to be rostered off, so as to be able to assert their conscience.
Lord Falconer of Thoroton (Lab)
If the position is that if you are on the roster, there is a risk that you will be in the room and assisting in relation to the provision of assisted dying, of course it would be sensible not to be rostered on that day. That is the sort of solution that I hope that people would be looking for.
Baroness Lawlor (Con)
The noble and learned Lord’s Amendment 669A refers to Sections 8(7), 11(9) and 26(2), but that is only for medical practitioners, it is not for other medical professionals. It is for that reason I tabled my Amendment 664, so that anybody had to opt in to training for this, not just the medical practitioners, which I am very glad to see the noble and learned Lord’s amendment accepts. It is the others.
Lord Falconer of Thoroton (Lab)
The noble Baroness is right that the opt-in provision that I have introduced is in relation only to the doctors. That is because it is the doctors who are given the particular role under the Bill. This says that you need to be trained before you can do particular functions under the Bill. That is why there needs to be an opt-in.
Equally, in relation to others, there is a no-detriment clause if you say you will not participate; and depending on who you are, you can participate if you are any person not in the provision of the assistance. As you go wider, you have wider protections if you are, for example, a doctor or a healthcare professional.
Baroness Lawlor (Con)
Somebody who is employed by an agency, or an agency nurse, may not have the whole provision of the text in front of them, and they may not be encouraged to look into the exemptions for conscientious or other reasons about which we have heard. It is for that reason, if it is on the face of the Bill, that anybody involved in the medical or social care of frail people should know that they are entitled under law to opt out of such training.
Lord Falconer of Thoroton (Lab)
I think we know the differences between us. I have set out what my position is. I am grateful to the noble Baroness for setting out hers again.
Baroness Berridge (Con)
In relation to what the noble and learned Lord said in response to the noble Baroness, Lady Finlay, about not being rostered being a sensible solution, that is a different language from having a legally enforceable right to say to your employer, “I do not want to be rostered on that day”. Is that the correct position, as I understand it? Will the noble and learned Lord concede that these problems arise from the fundamental pillar of the Bill, which is that you can base this on the notion of autonomy, which is based on choice, but conscience is a different concept from that, and that is why we are in these difficulties?
Lord Falconer of Thoroton (Lab)
I honestly do not think that these are difficulties. There is absolute clarity in the Bill as to what the legal position is, and it is a very wide exception. It is more than sufficient to give protection to people who do not want to participate in the provision of assistance under the Bill. Pushing it wider and wider simply gives rise to uncertainty. The key thing is that there should be certainty and sufficient width, and I believe that is what Clause 31 has done.
Baroness Coffey (Con)
I do not think that the noble and learned Lord spoke to his Amendments 422, 423 and 888. It is possible that he could do that in another group at a later date, but I wanted to clarify whether he would make sure that he does that.
Lord Falconer of Thoroton (Lab)
Amendments 422 and 423 are to create a regulatory power to allow co-ordinating doctors or independent doctors when they step down in certain circumstances not to have to give notice; for example, if they are too ill. It is a practical drafting change.
Baroness Grey-Thompson (CB)
My Lords, in addressing the noble Lord, Lord McCrea, I think the noble and learned Lord was actually answering one of my questions on Amendment 679. I think the noble and learned Lord suggested that there might be a differentiation between NHS and private providers in the hospice sector. Does he see a scenario where people may feel reluctant or frightened to enter into an NHS hospice because it may be provided there? Will this not put more pressure on private providers?
The noble and learned Lord has rejected many of our amendments, arguing that they are not necessary because there should be totally equal access to the process. But is this not going to create a two-tier system where those who do not want to discuss assisted suicide and might be able to afford a private provider will be able to stay away from any discussions, whereas someone with less money will be forced to go into NHS provision?
Lord Falconer of Thoroton (Lab)
No, I do not think it will because the nature of the safeguards in relation to everybody is such that the idea that an assisted death will be forced on people is wrong.
Lord Deben (Con)
There is one last thing I would like clarification on. When the noble and learned Lord spoke about hospices, he said in a slightly confusing way that that did not necessarily refer to care homes. I am concerned about care homes that are run by organisations for which this is unacceptable. Are they going to be protected and be able to say that from the beginning, so that anybody going into a care home of that kind knows precisely the terms under which that care home is run?
Lord Falconer of Thoroton (Lab)
The only organisational exceptions that I am contemplating—the exceptions in Clause 31 are for individuals—are in relation to hospices, not care homes.
Lord Stevens of Birmingham (CB)
I think the noble and learned Lord has just made a very important point. To clarify: he is saying that Clause 31(8)(b) would not apply in hospices; in other words, as drafted, the Bill would prevent a hospice as an employer from restricting doctors who were working for that hospice from also participating in assisted dying. If the hospice wanted, as a matter of philosophy or ethos, to say, “We do not want to be part of that”, is the noble and learned Lord saying that it would have an opt-out from Clause 31(8)(b)?
Lord Falconer of Thoroton (Lab)
I am not sure I have understood the question. If the question is, “Can a hospice opt out from the opt-out?”, the answer is no. Can the hospice have a separate opt-out? That may be the position, but I need to consider how to deal with that.
Lord Stevens of Birmingham (CB)
To clarify, I think Clause 31(8)(b) prevents a hospice as an employer restricting its employees from participating in assisted dying if they do it somewhere else. Is the noble and learned Lord saying that he is willing to change that?
Lord Falconer of Thoroton (Lab)
What I am thinking about is a provision that says if, as a hospice, you say you do not want to provide it, you should not suffer various sorts of institutional detriment. That is what I am interested in. I am not saying anything about Clause 31, because I am not understanding the noble Lord’s question, but that is what I am thinking about, to be clear.
Lord Stevens of Birmingham (CB)
I think what follows from that is that the noble and learned Lord is accepting the position that hospices will not be in a position to restrict their employees from participating in assisted dying, if they are doing that somewhere other than in the hospice.
Baroness Fraser of Craigmaddie (Con)
My Lords, I thank all noble Lords for this extremely interesting and long debate. I do not think I can possibly sum up in any better way than the noble and learned Baroness, Lady Scotland, did. I felt that she summed up brilliantly the issues that have been raised over the last three and a half hours.
I will come back to the noble and learned Lord, the sponsor. He posed four responses. First, we all seem to be coalescing around the idea that the Bill should contain an opt-in, and he has given us Amendment 669A as his response. The mood of the Committee, if I may say so, is that that is not sufficient, and the mood of the royal colleges seems to be the same.
The second point was: is it wide enough? The resounding answer seems to be no. I am sorry, I always come back to practicalities in this Bill; although it is fine to refer to the clauses, it is about what is actually going to happen—how are people going to take these words and implement them? How would you say no? I am thinking about a busy ward where an assisted dying request is in process but someone does not want to participate. They might fear that speaking up at that point might be seen as obstructive or harm their chances of promotion. They might not have the confidence to speak up to their superiors, which would not be a healthy work dynamic. There is nothing in the Bill that allows that person to say, “I didn’t opt in to this”. An opt-in system would make it all agreed. Things would be known about before there was a crisis, people would have the right to change their minds and there would be a mechanism to do so. I am afraid that is where Amendment 669A fails, because how can you opt out later? Where is the provision for that?
Lord Falconer of Thoroton (Lab)
My Lords, these amendments concern the preliminary discussion and the timing of the recording not just of that discussion but of cancellations. They would raise obligations on GPs to provide information, and would provide the need to give the commissioner material so that he can properly perform his functions as, in effect, a regulator of the process.
I want to adopt what the noble Baroness, Lady Murphy, said. There needs to be some degree of understanding about Clause 5: it is a requirement that has to be gone through before one can have an assisted death. The effect of the clause is that there has to be a preliminary discussion. That discussion requires a doctor to go through with the patient their diagnosis and prognosis, any treatment available and its likely effect, and all appropriate palliative hospice or other care, including symptom management and psychological support, and to offer to refer them to a palliative care person, so that the patient has a balanced view about what their options are before they embark on the process of an assisted death. That means going through the safeguards. What is more, the Bill currently requires that that conversation is recorded as soon as practicable by the person with whom the patient has had that conversation.
That is the framework within which one looks at the amendments. The first proposal is from the noble Lord, Lord Shinkwin, who proposes that any conversation that a patient has with any doctor, whether the doctor raises an assisted death or the patient does so, should be treated as a preliminary discussion of the sort that I have just described, and that discussion must be recorded. I understand why the noble Lord has put that in but I do not think it is either appropriate or practical. There is the preliminary discussion requirement and the requirement that preliminary discussions be recorded because that is a safeguard. It should not stop any patient having a conversation, formal or informal, with their doctor in which they raise issues about their care. For example, they might want to say, “Tell me what you know about assisted dying”, or, “Have you ever seen one?” If you have that conversation, I think it should be recorded, but that does not make it a preliminary discussion. It can be before the process has started. So, although I understand why the noble Lord, Lord Shinkwin, has tabled the amendment, I am not minded to accept it because I do not think it is necessary, appropriate or practical.
The noble Baronesses, Lady Grey-Thompson and Lady Lawlor, wish—in relation primarily to the preliminary discussion but also to other areas—to reduce the words
“as soon as reasonably practicable”
to either immediately, within 24 hours, straight away, within seven days, and so on. Subject to the question of cancellation, where I think there is a different case, I am not in favour of changing the words
“as soon as reasonably practicable”.
That seems to be the appropriate test when you are recording something. It has to be looked at against the framework. It just does not seem appropriate to change that when we are dealing with doctors who will have other pressures on them, but I underline the importance of there being a record; hence the requirement for it be done
“as soon as reasonably practicable”.
The amendment from the noble Baroness, Lady Keeley, suggests that a GP has to give information to one or other of the assessing doctors. I assume it would apply right across the board, not just to the preliminary doctor but to the assessing doctor. As the noble Baroness, Lady Keeley, knows, there is a requirement in Clause 12 on both the independent and co-ordinating doctor to examine the person and their records, and to
“make such enquiries of professionals who are providing or have recently provided health or social care to the person as the assessing doctor considers appropriate”.
I have also tabled an amendment that reflects discussions we had earlier, which suggest that both those doctors should also talk to the multidisciplinary team responsible for the care of the patient to ensure they get the full amount of information available. I completely accept the underlying principle behind the amendment from the noble Baroness, Lady Keeley, but the steps which are mandated are probably enough.
The noble Lords, Lord Rook and Lord Harper, both want there to be a specific requirement for the preliminary discussion record to be given to the commissioner. Noble Lords will know that Clause 44 allows the Secretary of State to make regulations requiring any doctor involved to notify the commissioner of any part that they play and of any information. Noble Lords will know that, under Clause 49, the commissioner is under an obligation to
“monitor the operation of the Act”,
and that the obligations of confidence do not apply when providing information to the commissioner. I think those provisions are sufficient. I do not think the proposals that the noble Lords, Lord Harper and Lord Rook, have made are necessarily unreasonable, but it may be that the right approach for the commissioner to take is to decide which documentation he wants to have on a habitual basis. I completely accept what the noble Lords are saying, which is that the commissioner has to be in a position to perform his regulatory function, but it is probably for him to decide what documentation should come to him habitually. I do not think it is appropriate to amend the Bill in that respect.
Finally, I turn to the point made by the noble Lord, Lord Wolfson, and the noble Baroness, Lady Grey-Thompson. I note that the Minister said that there are no workability issues. I am struck by the argument that they both made, which was that this is obviously so important that if you give a cancellation then, to avoid any problem, it should be immediately notified. The noble Lord, Lord Wolfson, made a good point that there is a two-stage process before you get to it. I think I should consider that; it is an important amendment.