Lord Lansley
Main Page: Lord Lansley (Conservative - Life peer)
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.
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.