Mental Health Bill [HL]

Lord Pannick Excerpts

Consideration of Commons amendments and / or reasons
Monday 24th November 2025 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I entirely support my noble friend Lady Berridge. Following on from the noble Lord, Lord Meston, this is a really important issue in relation to my noble friend’s amendment. It is unfortunate that this issue was not put out to consultation because there is a lack of clarity. It would be otiose to repeat anything that either noble Lord has already said, but I urge the Minister—and I know she is a very good listener—to consider this issue a little further, given that this moment for the child or young person is so critical. Unless there is clarity, unless it is in the Bill and unless this issue of discretion versus mandating to support the role of the AMHPs is sorted out in the primary legislation, it will be very difficult to reflect that in any statutory code of practice.

[Lord Pannick (CB)]

My Lords, I join with the noble Baroness, Lady Watkins, in welcoming government Amendment 12, which says:

“A registered care provider is to be regarded for the purposes of section 6(3)(b) of the Human Rights Act 1998 as exercising a function of a public nature in providing any of the services mentioned”.


I am particularly pleased to see that the Government and the other place accepted this point, because it reverses the effect of a decision of the Appellate Committee of this House in 2008, YL v Birmingham City Council, in which I was the unsuccessful counsel for the unfortunate applicant. At the time, I took comfort from the fact that, of the five members of the Appellate Committee, the two who dissented in favour of my client were the noble and learned Lord, Lord Bingham of Cornhill, and the noble and learned Baroness, Lady Hale, and I am very pleased that their approach has now been accepted by Parliament. The point was summarised by the noble and learned Baroness, Lady Hale. She said that it is a function of a public nature for the purposes of the Human Rights Act when the function is performed pursuant to statutory arrangements, when it is performed at public expense and when it is performed in the public interest. It has taken 17 years, but the law has got there in the end.

[Baroness Tyler of Enfield (LD)]

My Lords, I start by adding my thanks to the Minister for her extremely constructive engagement throughout the Bill and particularly in recent weeks, as we have discussed community treatment orders and strengthening measures to monitoring racial disparities. My noble friend Lord Scriven has already covered the former, and I simply want to say that I am very grateful for the steps that the noble Baroness has taken to strengthen those measures for monitoring. Looking at racial disparities was, after all, the underlying rationale for this piece of legislation, so I am very glad that we are now going to have monthly reporting that we can access through the database and the dashboard—that is very good news. We will most certainly be scrutinising that data very carefully on these Benches and drawing any areas of concern to the attention of the House.

Liberal Democrats welcome the Bill. It is long overdue as an important step in ensuring people’s dignity and human rights, but we also recognise that it comes amidst a very challenging landscape for mental health services more broadly. We all know the serious shortcomings in current mental health services. Throughout the process of scrutinising the Bill in both Houses, we have urged the Government to back calls to invest in community mental health services and to produce a clear, costed implementation plan with clear timescales. We consider that very important because our outstanding concern is that the Bill on its own does not include adequate measures to promote preventive and early intervention services to stop people reaching crisis point and all the issues that we have discussed during this passage of the Bill.

We have been very glad to contribute to the Bill. It constitutes the biggest piece of legislation on mental health in 40 years. In the same vein, it could be the case that we do not have another major piece of legislation for another 40 years. I hope that is not the case, but these Bills do not come along very often. That is why we are determined to push the Government to look beyond the relatively narrow scope that this Bill has offered, to include community-led preventive care rather than simply focusing on helping people as they reach crisis point.

It has been a very important piece of legislation. I would like to thank the Minister again for her extremely constructive engagement and the tone she has set throughout this Bill. I would like to thank all noble Lords, from these Benches and from all Benches, for their extremely well-considered and very expert and heartfelt contributions. Last of all, I would like to thank officials, the Bill team and Adam Bull in the Liberal Democrat Whips’ Office.

Terminally Ill Adults (End of Life) Bill

Lord Pannick Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I do not like this Bill, but I am here, like many other Members of this House, to agree on amendments that will make this a better Bill, and I hope it will be effective.

When my father died, the family nanny, who had also been his housekeeper, needed somewhere to live, and my brothers and I paid for her to live in a very nice care home, where she was entirely happy, until I went to see her. On each occasion, she said to me, “I shouldn’t be alive. I ought to die. It is not right that you and your brothers are having to pay for me”. I have this direct knowledge. She was perfectly happy when I was not there and, of course, we continued to look after her until she died.

But the Bill, once it is passed, is absolutely certain to be enlarged in all sorts of ways, as happened with other Bills in other countries once they became law. There are various reasons why it would be a good thing to enlarge it. For example, it seems to me bitterly unfair that those with locked-in syndromes such as motor neurone disease would be extremely unlikely to benefit from the Bill in the last six months, because many—those I have known—have been unable to do anything themselves in the last six months. The word “encouragement” is absolutely crucial. It does not have to be coercion. It does not have to be abuse. It could be nice people listening to a loved one and realising that they are saying, “I ought to die”, and consequently saying, “Yes, why not?” That would be extremely unjust.

[Lord Pannick (CB)]

My Lords, there is a profound irony in this group of amendments, because the Bill introduces far greater protection for vulnerable patients than exists under current law. Terminally ill people are currently vulnerable to all sorts of pressures from family members and others who may have their own agendas in seeking to persuade the patient not to continue with their treatment, to die or just to give up on life. The Bill introduces in statutory form a whole range of new statutory protections that simply do not exist in the standard cases of vulnerable people being encouraged not to continue with their treatment.

We see that in Clause 1(2), which summarises what the Act provides in some detail. Steps are to be taken, and they are taken under the Bill, to establish that the person concerned

“has a clear, settled and informed wish to end their own life, and … has made the decision that they wish to end their own life voluntarily and has not been coerced or pressured by any other person into making it”.

Those seem to me to be very strong and very appropriate protections. The idea that we should proscribe encouragement will inevitably lead to the family members and friends of the person concerned, the person in the terminally ill condition, being worried that, if they discuss this difficult, important subject with their loved one or friend, they will be vulnerable to all sorts of sanctions under the law. That, I would have thought, is the last thing that we want. The application of these principles—and they are the right principles in Clauses 1 and 2—will inevitably depend on the facts and the circumstances of the individual case, so I, for my part, do not see the need for any of these amendments.

[Lord Deben (Con)]

My Lords, I am not a lawyer, and it is dangerous to follow the noble Lord, Lord Pannick, but I think on this occasion he is mistaken. The fact that this kind of protection is not there until this Bill does not actually mean anything—perhaps it should have been there in any case—but, if we are going to have this protection, it needs to be proper protection.

I say to those who, at least today, live a privileged life that they ought to remember that there are many people in this country who, for the first time, are within touching distance of large sums of money, because the housing situation means that there are many old people who have houses of a value that those families have never seen ever before—grandma’s £200,000. I say to the noble Lord, Lord Pannick, that, as somebody who was a Member of Parliament for 40 years and works now in a community, that this is a very real fact, and we just have to accept that some people in this House are a long way away from those people. I was brought up in a slum parish by a clergyman. I have spent my life trying to deal with the very people we are talking about. I think these amendments are crucially important, because we are talking about circumstances which we are about to change deeply.

The fact is that the Bill itself changes the way in which we think about old age and infirmity. I desperately want people to know that they are always valuable and always got something to give, even at the end of life. This Bill removes that. If we are going to have it— I hope we will not, but if we are going to—we must make sure that people are protected not just from coercion but from encouragement, which I am afraid is sometimes driven by a sort of misunderstanding of what we can give. I can see people who will say, “You know that your grandson is in some real difficulty. You have a last opportunity to do something worthwhile. If you die now, your house will save his marriage, will save his firm and will look after his future”. That is what will happen. We, who are in happier circumstances, should just remember that we have a deep responsibility for those people.

--- Later in debate ---

[Baroness Lawlor (Con)]

My Lords, I support the amendments in this group. I am a research director at Politeia, a think tank that has commissioned a great deal of work from lawyers and academics, including on this subject, but I speak in my own capacity as a historian. I associate myself with the remarks of the noble Lord, Lord Griffiths of Burry Port, and the right reverend Prelate, who reminded us that we are part of a whole society and not just one person against another.

I support these amendments because they aim to tighten this Private Member’s Bill and prevent it being unsafe by prohibiting inducement to assisted suicide by those who, for whatever reason—we have heard about the reasons—seek to induce, encourage, advise or influence another to take his or her own life. My Amendment 57A would prohibit someone from planting the idea in the person’s head and getting them to consider suicide as an acceptable or even necessary course of action, so inducing them to choose an assisted suicide, which he or she might not otherwise have considered as an option. Given that the planting of such an idea could be done in a number of ways, directly or indirectly, under the Bill as it stands, and given the gravity and irrevocability of the decision to end your own life, the safeguard is needed.

Let me illustrate this with a possible conversation between someone suffering from cancer, whose diagnosis indicates that he or she has no more than six months to live and is in a state of shock and misery and depressed at the idea that nothing can be done, and a relative, friend or person such as a doctor, social carer, social services provider or someone else in a professional position. The person talks about the diagnosis and their feelings to the other party, who might reply: “Have you considered an assisted death?”, “I know someone who didn’t want to go through with the whole thing until the bitter end, and the doctor was very supportive” or “Others find it very helpful to plan an assisted death; it’s straightforward and can all be prepared for. The family can be with you at the time and you just doze off”. None of these possibilities is ruled out by the Bill as it stands—

[Lord Pannick (CB)]

What is the difference between that conversation and the conversation that happens every day, in tragic personal circumstances, where the relative or friend says to the dying person, “Have you considered giving up your chemotherapy”?

[Baroness Lawlor (Con)]

I thank the noble Lord for the intervention but, if he will permit me, I would like to finish. We can imagine many different sorts of conversation. If noble Lords would like to hear more examples, I am sure they will ask for them.

None of these possibilities is ruled out by the Bill as it stands. They would not be considered an instance of coercion or pressure. Nor will it be possible when this Bill becomes law to investigate with due legal process whether someone has been instrumental in inducing a person to assisted suicide, provided they are covered by the terms of the Bill. Clause 34 outlaws dishonesty, coercion and pressure, and Clause 35 the destruction of documentation or the falsification of what purports to be a declaration, but the Bill does not address other means of inducing someone to opt for assisted dying. Under Clause 32, criminal liability for providing assistance will be removed from the Suicide Act 1961; as will civil liability under Clause 33, which stipulates that

“providing assistance to a person to end their own life in accordance with this Act”

or assisting a person to end their life while performing a function under the Act does not of itself give rise to any civil liability.

Moreover, the Coroners and Justice Act 2009—the duty to investigate certain deaths—will be amended so that the reference to unnatural deaths does not include a death caused by the self-administration by the deceased of an approved substance within the meaning of this Bill. Similar changes will be made in respect of arrangements for medical certificates under the new regulations and for Schedule 1 on suspension of investigations. These changes mean that there will be no effective way of investigating improper behaviour after an assisted death has taken place. The Bill already, in effect, recognises this problem by making absence of coercion and pressure a condition for eligibility for someone to be given assistance to die under its provisions. It opens the possibility to object to an assisted suicide going forward on the grounds that the person about to die has been coerced or pressured.

Furthermore, Clause 10(2) gives the first doctor—the co-ordinating doctor—the duty of ascertaining that the person concerned has not been coerced or pressured. We have heard from the noble Baroness, Lady Finlay, and others who have great professional experience in looking after people with terminal and other grave illnesses how difficult it is to establish coercion. It is often very difficult to establish coercion. It is true that the Bill wants to establish coercion—or so it alleges—but, as has been argued, the grounds are too narrowly defined.

A person in a poor mental state, because of their terminal diagnosis, is especially likely to be open to suggestions from other people, especially figures of authority such as their doctor, or their own family, whom they want to believe are thinking only of them. If we want to be sure that the decision to have assistance to die is genuinely their own, it is not enough just to rule out coercion or pressure. We need also to outlaw subtler, more insidious, but no less effective forms of persuasion. There is a danger that, if the Bill includes, as it does now, just a prohibition on coercion and pressure, the inference will be drawn that any form of encouragement or inducement, so long as it is not coercion or pressure, is allowed. Surely that is not what the proponents of the Bill would want.

The noble and learned Lord the sponsor and his co-sponsor are putting forward the Bill under the banner of giving dying people more choice over what happens to them, and providing greater freedom. Surely, in pure consistency with this underlying purpose, they must be intent on ensuring that the irrevocable choice a person makes to undergo assisted suicide is genuinely that person’s free choice, and therefore must support the amendment I am proposing, and indeed the amendments that others are proposing.

I hope that we can go even further. If my amendment is adopted, a further provision could be added to Clause 10(2), making it the duty of the co-ordinating doctor to ascertain not just that there was not coercion or pressure but that the idea of assisted suicide was not suggested to the person by another party.

--- Later in debate ---

[Lord Gove (Con)]

My Lords, I support Amendment 52, in the name of the noble Baroness, Lady Grey-Thompson. I do so as the Government Chief Whip who helped ensure that the Serious Crime Act 2015 was placed on the statute book, and as the Justice Secretary who was responsible for some of its provisions thereafter.

I am hugely grateful to the noble Baroness for raising the vital question of domestic abuse and violence in the context of coercion. I do not believe that this has been suitably explored, canvassed or analysed before. I would be grateful for the reflections of the Bill’s sponsor on how we might protect some of the most vulnerable in our society.

I will respond very briefly to the point made by the noble Lord, Lord Pannick, who pointed out that there may well be inadequate protections for those people who are coerced or persuaded into declining treatment that might prolong their life at the end of their life. There may well be inadequate protection and a case for stronger protection but, as has been pointed out before, there is a world of difference between declining treatment that might preserve your life and having a lethal injection that will end your life. It is a point that the medical profession fully understands and one that should be firmly borne in mind.

[Lord Pannick (CB)]

This is at the heart of the Bill. Is there really such a profound difference between an individual being able to say, “I’m going to stop chemotherapy” or “I’m going to stop eating because my life is intolerable”, and that person saying to the doctor, “I wish to have a potion that will have the same result”? There is a difference, but the main difference is that the person can die with dignity.

[Lord Gove (Con)]

I think there is a profound difference, but the noble Lord has made his point and I shall allow others to judge whether the narrowness of the distinction that he draws is appropriate.

On the whole question of domestic violence, the legislation that was introduced in 2015 specifically introduced the idea of coercive and controlling behaviour as an aspect of domestic violence: the idea that domestic violence need not require physical harm. It was an advance in the law that was brought forward by my friend Robert Buckland in that legislation. It was absolutely vital and it made us a world-leading jurisdiction in recognising the danger of this particular type of abuse and violence.

--- Later in debate ---

[Baroness Berridge (Con)]

It might help noble Lords to know that we are being followed on Twitter. This issue—I am aiming to save time—of the Pannick dilemma has been commented on by Philip Murray, who is a law lecturer at Robinson College in Cambridge. He said the following, and we may wish to seek his advice:

“I find it astonishing that various Lords”—


forgive me for the embarrassment—

“including those who should know better (Lord Pannick …), keep conflating withdrawal of treatment and assisted suicide. The act/omission distinction has underpinned morality and law for millennia”.

I hope that either of the noble Lords, Lord Pannick or Lord Dobbs, will reach out to this gentleman to aid all noble Lords so we will not spend any further time on that dilemma.

[Lord Pannick (CB)]

My Lords, may I just say that other views are available in the legal community, including among many distinguished judges who I will not name. There are many law reports that question this distinction, not least for the reasons that have just been given.

[Lord Mackinlay of Richborough (Con)]

My Lords, the debate on this matter this morning has been enlightening from all sides, with many with many distinctive speeches that will stay with me, including that of the noble Lord, Lord Griffiths, who brought a very personal account, though he is no longer in his place.

We are talking about concepts and words—whether it is encouragement, coercion or pressure. They are in a similar collective of words, and I worry that we are dancing with words a lot in this debate. The noble Lord, Lord Griffiths, brought the word “autonomy” to us this morning, which is very important. I know it has been described earlier in Committee and on the Floor here today. I would be significantly more encouraged and relieved if I could be absolutely sure that autonomy and freedom of action, freedom of movement, freedom of thought and of decision were clear, unambiguous and untainted. I cannot be assured by the Bill, as it stands, as it is weak on the coercion nature.

As I left the Chamber earlier—my wife had arrived— I thought back to the cases of Ruth Ellis and Derek Bentley, which were very significant as they stopped the death penalty in this country. It was a long time ago when the morality and thoughts of this country were in a very different place to today. One might talk about the deterrent effects of the death penalty—which is a whole different debate—but we were willing to put that aside because of the potential of getting things wrong, and we did not want miscarriages of justice. That was so powerful. However, here we are discussing this Bill with lots of suggestions on how we could strengthen the coercion measures and make sure that people are not being pushed towards an early death that they did not want. We are almost flippant about that because the unsaid words are, “They’re old and ill anyway, so they don’t really matter”.

In support of Amendment 58 in the name of the noble Baroness, Lady Grey-Thompson, my noble friend Lord Deben—with whom I do not always agree on everything—made a very powerful point. If you were to look at the bell curve of the wealth and status of us in this Committee, we are probably to the left of the public politically, but certainly to the right in terms of wealth and influence as a whole. There is a world of difference between how, if we were to face this, we would be treated—the voice we would have for ourselves and the way in which our families would know they have agency and power to speak—compared with others in society. It could be that the wealthy family would be in a different place, because they could afford the help at home and the support in a care home as necessary.

However, for those in the middle who perhaps have children who work away, which is increasingly likely in this country, the children are feeling guilty. There are lots of cases that have been talked about the real situation of how people feel. In cases of that type there may be no problem of wealth, but problems of support by children and others. The “I don’t want to be a burden” debate would be coming to the fore.

One of our Northern Ireland colleagues mentioned the issue of saying, “Do you know how much this costs the NHS?”. I will be exploring that in greater detail. I think Amendment 3 touched on having an independent person; I have laid amendments for another day examining whether the NHS should be part of this process at all.

I say to the noble Baroness, Lady Hayter, that I could be encouraged but I am not sure how we can overcome the facets and dimensions of autonomy and coercion, because people and families are complex. One’s situation in life is complex. Just as we were willing to change a major piece of criminal legislation on the back of two errors, we seem to be not so interested in looking after the vulnerable in this Bill. I wish I could advance an amendment that would satisfy me—a lot of these amendments would make me a little more satisfied—but, no matter what we do, I am tempted to follow the noble Lord, Lord Carlile, in saying that we need to look at this whole area of coercion and pressure all over again. It is absolutely apparent across this Committee that this is the sticking point for many of us, so please try to satisfy us.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords, this has clearly been a long debate, and I think for good reason. As one noble Lord said, coercion and pressure are a major concern for many people about the way the Bill is written. I will very briefly respond. I am well aware of the time, but a lot of points have been made. Noble Lords will all be relieved to know that I am not going to go through them all.

First, the word “encouragement” is taken from the Director of Public Prosecutions guidelines, and for good reason, because the Director of Public Prosecutions recognised the power of a person in authority over a person who is vulnerable. That is why it tends towards the prosecution of assistance coming from a person in authority. I would include doctors in that, but it was also thought to include prison staff, nurses and others employed in that role.

[Lord Pannick (CB)]

I am sorry to interrupt. There have been a number of references to the DPP’s guidelines. For accuracy, will the noble Baroness accept that paragraph 45.5 of the guidelines says:

“A prosecution is less likely to be required if … the actions of the suspect may be characterised as reluctant encouragement … in the face of a determined wish on the part of the victim to commit suicide”?

[Baroness Finlay of Llandaff (CB)]

For the sake of accuracy, I completely accept that. Perhaps the noble Lord might also see, while I am speaking, whether I am correct that the guidelines would tend towards prosecution if a person in authority was encouraging. That was my understanding.

I will raise a few points. The noble Lord, Lord Hunt, absolutely hit the nail on the head when he pointed out that, if we had had a royal commission and went through the processes and so on fully, we might be in a different place now. One of the big problems we have encountered in looking at this Bill is what has been deemed to be in or out of scope. If you do not have the services available, you do not have true choice. That is a real problem, yet those of us who have tried to table amendments to bring specialist palliative care provision into scope to match and stay parallel with any developments in assisted dying services have repeatedly been told—I have checked, and it is in the Companion that we cannot extend scope—that this was deemed out of scope. Therefore, we feel a bit stuck about how we can make sure that people get the services they need.

The Minister pointed out something in the Bill that has been a concern to a lot of us: that the family do not have to be informed. Behind that is the concern about grief. Let us take a 19 year-old with an osteosarcoma with metastases. The parents have been looking after him from childhood through to all his treatment, doing all they can to enhance his quality of life. He says that he now wants to go for an assisted death, and he does not want his parents told. The first thing that the parents hear is a phone call to say that he is now dead, having had lethal drugs. They may be aware of a whole lot of issues that have been going on in that 19 year-old’s life, which they would have shared with those involved in his care. This is pretty close to some patients whom I have looked after, because someone developing into an adult when terminally ill is very difficult, as are the transition issues.

There is another aspect to that. Having spoken to and heard from people who have a relative who has gone for euthanasia—it is usually euthanasia rather than assisted suicide—they often feel devastated that their love was not enough to support the person. They feel that they have failed, and they ask why they could not have helped the person find ways forward or access the services they need. I will quote from the commission chaired by the noble and learned Lord, Lord Falconer, with Demos, on the lack of services. It states:

“The Commission does not accept that any of these forms of pressure could be a legitimate motivation for a terminally ill individual to seek an assisted death. Therefore, it is essential that any future system should contain safeguards designed to ensure, as much as possible, that any decision to seek an assisted suicide is a genuinely voluntary and autonomous choice, not influenced by another person’s wishes, or by constrained social circumstances, such as lack of access to adequate end of life care and support”.


The motivation behind many of the amendments discussed today has been precisely to deal with that problem.

I will address two more things, beginning with the concept of how sure someone has to be. The civil standard of proof of 51% seems remarkably low when determining the eligibility of someone having lethal drugs. The implication in the debate in the other place was that the doctor should not ask the person, “Why is it that you want to end your life?” Yet in clinical practice, whenever patients say, “I’ve had enough; I do not want to go on”, you answer that with one question, another question and then another question. It feels like an onion: you take layer after layer off, and you find out what is happening. You find many remediable aspects to their situation—they might often seem trivial to some people, but they have been wearing the patient down.

I am horrified, frankly, whenever I hear of inadequate care and of people not getting the pain relief that they need. Morphine does not kill you; it is a good drug for pain relief, given appropriately in the right dose at the right time for the right reason. That is what prescribing analgesia is about. That is completely different to giving a massive overdose of lethal drugs—and, as we know, not all the ones in the world have been fully assessed.

Terminally Ill Adults (End of Life) Bill

Lord Pannick Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

[Lord Shamash (Lab)]

My Lords, I listened very carefully to what the noble Baroness, Lady Finlay, said. She has put an enormous amount of work into the background of this Bill. One thing she did not address was the wording of the change from “capacity” to “ability”. It seems to me that the Mental Capacity Act runs like a thread right through the Bill to where we get to the issue of consent and what have you.

It may be that the Chief Medical Officer, Chris Whitty, considered that in his comments. The House might be grateful to receive, or hear, extracts from the Mental Capacity Act, which talks initially about an impairment; in this case it would be an illness. It talks about two tests: the diagnostic test and the functional test. The diagnostic test concerns being ill. The functional test is to understand the relevant information about the decision, including the consequences of each option. The second one is about retaining the information—holding on to the information long enough to make the decision—and then using or weighing the information as part of the decision-making process, and then being able to communicate that decision. That seems to me to be clearly about capacity, not ability, and I invite the noble Baroness to withdraw her amendment.

[Lord Pannick (CB)]

My Lords, I agree with the noble Lord, Lord Shamash. The noble Baroness, Lady Finlay, speaks with enormous authority based on enormous experience, but we are considering an amendment which seeks to replace “capacity” with “ability”. As Clause 3 of the Bill makes very clear, “capacity” is the term used because there is a well-established, tried and tested scheme under the Mental Capacity Act 2005.

By contrast, the word “ability”, which the noble Baroness seeks to insert, is inherently uncertain; it has no defined legal meaning. There are later amendments to this Bill, to Clause 3, which do seek to address the concept of capacity in the context of this Bill. They are very important amendments and I look forward to our debates on them—but to insert “ability” as the governing concept would simply cause confusion.

[Baroness Thornton (Lab)]

My Lords, I absolutely agree with the noble Lord, Lord Pannick. The noble Baroness, Lady Finlay, and I have worked together for many years, on many health issues, but I do not think she addressed the issue of why she wants to change the wording.

Given that we worked in 2005 on the Bill that actually put capacity into the legislation, I would be interested to know what her reasoning is. I think that is particularly important because the noble Baroness did not address the issue of choice. Of course, ability, capacity and choice are central to this Bill. I wonder why the committee whose report we have before us did not take any evidence at all from terminally ill people who need to make the choice in this matter. I think that was a grave mistake on its part and that if it had, that possibly would have led the noble Baroness to take a different view.

--- Later in debate ---

[Lord Pannick (CB)]

The noble Baroness says that this applies only to moments in time. Is she aware that Section 24 of the Mental Capacity Act applies the concept of capacity to allow people to make advanced decisions that at a later stage they will not wish to have treatment that is life-saving?

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, we have had an hour and three-quarters on this amendment and perhaps we should move on.

[Lord Sandhurst (Con)]

My Lords, I shall be very brief. The definition at the beginning is a most important matter. I am quite clear, having heard noble Lords make a number of very sound observations, that “capacity” is an essential term. That is the first thing. However, it is not sufficient, and it has to be added to. I say that because the Mental Capacity Act states explicitly that a person is not treated as lacking capacity merely because they make an unwise decision. That is a very different situation from what we will be dealing with in many cases going forward. I urge the House, when this comes back on Report and preferably beforehand, and the promoters, to consider adding simply “and ability” so that it reads “capacity and ability” because they are different concepts, and they are necessary if this is to work properly in future.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, as it is nearly 2.30 pm, it might be helpful to the Committee to know that, when my noble friend Lady Merron has responded for the Government Front Bench and my noble and learned friend Lord Falconer has responded, I intend to invite the House to resume; that will bring today’s debate to a close. That is my intention but, obviously, it is a matter for the Committee to decide what it wants to do.

[Lord Pannick (CB)]

Can the noble Lord give some guidance on the issue of timing? As has just been indicated, if it were not obvious before this morning, it is now perfectly obvious that four days is not going to be enough for the Committee stage of this Bill. There is unanimity that this is an exceptionally important Bill and that this House has to carry out its constitutional function of scrutinising it. It would be enormously damaging to the reputation of this House if, because of timing, we were unable to do that task. Will the Government make government time available?

[Lord Kennedy of Southwark (Lab Co-op)]

I thank the noble Lord for that point. As I said at the start, the Government remain neutral and will not be providing government time for this Bill. Obviously, we will look at things when we get to the end of our four days in Committee. I will then work with the usual channels to see what other time can be made available from non-government time, but we will have to see whether we will move on over the next few days.

Mental Health Bill [HL]

Lord Pannick Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I apologise to the Committee for my not having been able to speak at Second Reading and for seeking to intervene on one amendment only in such an important Bill. That is the amendment from my noble friend Lady Keeley, supported by the noble Baroness, Lady Barker. I declare an interest as a council member of Justice, the NGO that will no doubt have sent briefings to many Members of the Committee on this important amendment.

Amendment 149 is a no-brainer, which warrants support and adoption by the Government and welcome from every political tradition represented in your Lordships’ House. It is no surprise to the Committee, I am sure, that I am a supporter of the Human Rights Act and the way in which it has protected vulnerable people and their families, including in mental health facilities. Those are some of the most potent stories about the Human Rights Act over the last near-quarter of a century.

Contracting out services will always be a matter of high politics in a democracy. It is literally the meat and drink of left-right debate over social and economic management. This was amply demonstrated in contributions on an earlier group by the noble Baronesses, Lady Bennett and Lady Fox, the noble Earl, Lord Howe, and my noble friend the Minister. However, no one in that debate ever advocates for either public or private provision on the basis that vulnerable people should be less well treated or protected.

It is my contention that everyone in the Committee should support Amendment 149, which would ensure Human Rights Act protection for publicly arranged mental health care, whether delivered by a public or private provider. No social democrat or liberal can approve of public authorities being able to contract out of constitutional protection, and no conservative can approve of public authorities being able to avoid responsibility for negligence or harm to individuals and their families, especially where coercive power is involved. Finally, I am sure that all Members of this Committee believe in equality before the law.

This amendment closes not so much a loophole as a glaring omission in legal protection as exposed by the case law and the Joint Committee on Human Rights. I commend it to the Committee.

[Lord Pannick (CB)]

My Lords, I too support the amendment from the noble Baroness, Lady Keeley, and I agree with every word spoken by the noble Baroness, Lady Chakrabarti. I am here today because I have an interest to declare, which is that I acted—unsuccessfully—in the case that caused the problem. In YL v Birmingham City Council, I was the unsuccessful counsel for YL, although I take comfort from the fact that of the five members of the Appellate Committee who sat on that case, the two who dissented were Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale—a formidable combination indeed. The noble and learned Baroness summed up the point in her dissenting speech in the Appellate Committee. She said that it is a function of a public nature for the purposes of the Human Rights Act when it is performed pursuant to statutory arrangements, when it is performed at public expense, and when it is performed in the public interest. It is as simple as that. I agree with her, I agree with the noble Baroness, Lady Keeley, and I very much hope the Minister will accept this amendment.

[Baroness Barker (LD)]

My Lords, it is usual in your Lordships’ House for the people with their names on the amendment to speak first; noble Lords will understand why I stood back, given the previous two speeches. I understand how the noble Lord, Lord Pannick, felt, having the noble and learned Baroness, Lady Hale, in his corner. I do not want to repeat anything that the noble Baroness, Lady Keeley, has said, because she summed it up extremely well.

We are very lucky; we get to talk to lawyers of calibre and fame. But I want to stand up for the solicitors, lawyers and independent mental health professionals who, day in and day out, go and see the people who are in real distress or are forgotten about, who nobody else is terribly interested in. They make it their business to make sure they are treated like human beings, wherever they are. I simply take the occasion to say this, because right now, we have to take every opportunity we have to defend the Human Rights Act and the application of universal human rights. It is no good having human rights that you pick and choose and apply to the people you like. It is why I picked the noble Earl, Lord Howe, up on his previous amendment.

We are very bad at explaining the importance of the Human Rights Act to people in the community; it is fair game for every newspaper hack or whoever wants to take a go at it, but it is about making sure that vulnerable people are treated as full human beings in our society. Therefore, I hope that even if we have not managed to fashion the exact perfect amendment, the noble Baroness will agree that this deserves to be in the legislation.

Musculoskeletal Health

Lord Pannick Excerpts

Thursday 30th January 2025 Lords Chamber

[Baroness Blackstone (Lab)]

My Lords—

[Lord Pannick (CB)]

My Lords—

[Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)]

We will hear from the noble Baroness, Lady Donaghy.

[Baroness Merron (Lab)]

My noble friend raises a number of important points. In reference to the planning guidance, I hope she will understand that at this stage that is leaked information and I am therefore not in a position to comment. The Secretary of State has confirmed that planning guidance will be published in due course. I agree that patients around the country are waiting too long for care and treatment. I draw my noble friend’s attention to the plan for change, which will get the health service back on its feet. Part of the elective recovery plan, published just a few weeks ago, sets out funding to boost DEXA, which is bone density scanning capacity to support improvements in bone health and early diagnosis, including for osteoporosis. That will provide an estimated 29,000 extra scans per year, so I hope my noble friend will take heart from that node of direction.

[Lord Pannick (CB)]

My Lords, I declare a family interest in this condition. Will the Minister recognise that the failure to roll out the much-needed early diagnostic service, which, as the noble Lord, Lord Black, said, was promised during the general election campaign, will inevitably result in greater cost to the NHS in the years to come?

[Baroness Merron (Lab)]

I certainly agree with the noble Lord that without the right services in place at the right time and in the right location, there is additional cost—not just to the NHS but to the economy and to individuals. We have found that musculoskeletal community services have the largest waiting lists in England, and I refer the noble Lord to our forthcoming 10-year plan on the move from hospital to community. That will be a key part of cutting waiting lists, and the measures I have already announced will also assist.

Covid-19

Lord Pannick Excerpts

Monday 15th November 2021 Lords Chamber

[Lord Kamall (Con)]

The noble Baroness raises a very important point and I apologise for not spotting it and answering it earlier. Many noble Lords will be aware of the very sad story of a young lady who died because she felt that the vaccine was not safe; her mother is encouraging other pregnant women to have the vaccine. For that reason, we want clearly to communicate that the vaccine is safe and will not affect fertility, so getting the vaccine is the best way to protect yourself. Pregnant women are more likely to get seriously ill from Covid-19, and we know that vaccines are safe for them and make a huge difference. In fact, no pregnant woman who has had two jabs has needed hospitalisation with Covid-19. We need to make that clearer, and I will take this back to the department and the Government to make sure that we communicate more clearly. We all share the same will to share that message more widely.

[Lord Pannick (CB)]

On the NHS app, it is not simply the inconvenience to those travelling but the waste of time of NHS practitioners who are being asked to provide letters to people who are travelling. It is vital that the Minister uses his best endeavours to make sure this problem is resolved very speedily. My understanding is that those of us who travel with children under the age of 16 who have had one jab have no means through the NHS app of proving that they have had the vaccine. Is that right? If so, can the Minister do something about it?

[Lord Kamall (Con)]

The noble Lord’s first point repeats what other noble Lords have said, but for a good reason. I hope that our mentioning this more than once this evening stresses to the NHS and NHSX that it must be sorted out as soon as possible. As I said, I had hoped to have a date to announce this evening, and I am as frustrated as everyone else. We all want to travel and, importantly, there are countries that require proof of the booster.

In terms of children travelling, a solution has been developed to allow fully vaccinated children aged 12 and over to demonstrate their vaccination status. Up to now, some countries have required no proof from children aged 12 and over, but I am being told that a solution is being developed. I will try to push for that date as well, but I definitely want to get a date for when the booster will appear on the NHS app. All I can do is apologise that we have not done this yet.

Covid-19 Vaccinations

Lord Pannick Excerpts

Monday 8th November 2021 Lords Chamber

[Lord Pannick (CB)]

The Minister mentioned the importance of the booster dose. Can he explain why the valuable NHS app does not prominently display that the individual has received a booster jab, as is the case with the first two doses? The information is hidden away on the app and cannot be downloaded. This is a serious defect because some foreign countries—the Minister mentioned Israel, which is one example—now require proof of a jab in the past six months, given the waning effect of earlier doses. There are many domestic contexts where the ability to prove easily that you have had a booster dose would be valuable.

[Lord Kamall (Con)]

I thank the noble Lord for that question. I have been made aware of this by more than one noble Lord today. I contacted NHSX; it said that it is looking into it and trying to work on a fix as soon as possible. If the noble Lord is aware in a couple of days that that has not been fixed, I hope he will remind me so that I can prompt NHSX.

Covid-19: Vaccinations

Lord Pannick Excerpts

Thursday 17th December 2020 Lords Chamber

[Lord Bethell (Con)]

I am grateful to my noble friend for his championship of this important point. It is not necessarily the role of the department to rule on this matter, but I note that UK Anti-Doping welcomed the World Anti-Doping Agency’s publication of its view on the vaccine. We welcome that moment and I very much hope that it provides the reassurance that athletes are looking for.

[Lord Pannick (CB)]

My Lords, my mother-in-law is 84 years old. That sounds like the beginning of a bad joke but it is not funny because she has serious health concerns and is very high risk. Over the past couple of weeks, my wife has repeatedly telephoned her NHS GP practice in north-west London—I will not name it, although I am happy to tell the Minister which it is. Staff there say that they have no vaccine, no information about when they can expect to receive the vaccine, no guidance from the Department of Health and no protocols. Does this not support the concern expressed by the noble Lord, Lord Harris, that there is a real danger of the Government underperforming yet again in this context?

[Lord Bethell (Con)]

I hear the concerns of both the noble Lord and his mother very clearly but I assure him that, to date, the rollout has very much focused on the 70 hospital hubs where we are getting the protocols and practices about getting this extremely difficult vaccine into people’s arms correct before we roll out distribution to all GP services. It is not at all my expectation that every GP service in the country will have the vaccine, nor that they will necessarily be ready to deliver it this week, but that guidance has been distributed. If the noble Lord would like to send me the details, I will ensure that that GP practice is up to speed on this important matter.

Medical Innovation Bill [HL]

Lord Pannick Excerpts

Friday 23rd January 2015 Lords Chamber

[Lord Kakkar (CB)]

My Lords, I declare my interest as professor of surgery at University College London and as a member of the General Medical Council, although I do not speak for the council in this Chamber.

I thank the noble Lords, Lord Winston and Lord Saatchi, for having tabled this important amendment. It goes to the heart of good medical practice, of course, always to innovate—but always to innovate, first and foremost, with absolute regard to patient safety. The fact that the amendment will now appear in the Bill will provide absolute clarity on what is required to discharge that patient safety responsibility with regard to innovation, as described in the Bill, which is vitally important. I strongly support the amendment. Once again I thank the noble Lord, Lord Winston, for his contributions in the passage of the Bill and, in particular, for tabling this important amendment.

[Lord Pannick (CB)]

My Lords, I, too, welcome the amendment. It will further emphasise that, in order to be lawful, medical innovation must be responsible. The criterion of responsibility has been the essence of the law on this subject since the judgment of Mr Justice McNair in the Bolam case in 1957, when he said that a doctor,

“is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”.

That may provide some reassurance to the noble Baroness, Lady Gardner of Parkes, that the courts will easily understand what is involved in the amendment.

The amendment will reassure many of those concerned about patient safety. The words will further confirm what I understood to be the Minister’s statement in Committee that the Bill is not intended to alter the substance of the Bolam test but to provide a practical means by which innovative doctors can take steps in advance of carrying out the treatment.

Like the noble Lord, Lord Winston, I am less confident than the noble Lord, Lord Saatchi, that this Bill will have much, if any, beneficial effect. I am doubtful that the fear of litigation deters responsible innovation, but I have been reassured by the amendments that the Bill will certainly do no harm. I thank the noble Lord, Lord Saatchi, for the responsible manner in which he has responded to concerns about the Bill by welcoming amendments of this sort. I also thank Mr Daniel Greenberg, a former parliamentary draftsman, now an expert consultant, for the assistance that he has provided to many noble Lords, including myself, on the issues raised.

[Lord Dykes (LD)]

I hope my memory is not at fault when I recall that I have attended all the previous stages of this Bill but deliberately not spoken because I preferred as a lay man to listen to what the medical experts were saying. We have had considerable testimony from them in the previous stages which has helped us make progress. I thank the noble Lord, Lord Saatchi, again. I know it has been done before but it is important to record our thanks for his introduction of this extremely interesting legislation, which will be very useful and important to humanity in the future—although it is difficult at this early stage to tell exactly how it will develop and the noble Lord, Lord Pannick, is right in expressing certain reservations about it.

We all have experience of the sufferings of friends and families in cancer cases and the Bill, not only in a moving way but in a scientifically respectable way, makes progress in widening the ability of medical experts, operating under the strict safeguards that have been agreed in the previous stages, to make sure that people can be helped more than the already marvellous help that doctors give within the existing framework. I am glad to support the amendment.

--- Later in debate ---

[Earl Howe]

I am grateful to the noble and learned Lord. Obviously, I must take account of his expert view, but the fear that I was about to articulate is that if you require a doctor to register the details and results of whatever innovative treatment he or she may have administered on some kind of data-capturing scheme in the way suggested by the noble Lord, Lord Hunt, that would constitute part of the requirement for the doctor to demonstrate that he or she has acted responsibly, and thus not negligently. Therefore, if the amendment were accepted, the result could be that a failure to record would be part of the picture when deciding whether a doctor had acted negligently.

If that point is accepted—I expect the noble Lord, Lord Pannick, to take me to task on it—my submission is that that would be a disproportionate requirement.

[Lord Pannick]

I understand the noble Earl’s concern that if there is an obligation to report the results, that might have an effect on the common law Bolam test, but surely it would not, because of the contents of Clause 2(1), which states:

“Nothing in section 1 … affects any rule of the common law to the effect that a departure from the existing range of accepted medical treatments for a condition is not negligent if supported by a responsible body of medical opinion”.

I therefore understand that under the Bill—the noble Earl can tell me whether I am right or wrong—the doctor has two means of defending himself or herself. One is the Bolam test at common law; the other is to take advantage of the procedures of the Bill. If one of the procedures of the Bill is a duty to report, that does not affect the general Bolam test under Clause 2(1).

[Earl Howe]

My Lords, I take the point made by the noble Lord, Lord Pannick. My point was not that the amendment would alter the effect of Clause 2(1). It would not have an effect on the common law, but it would create a more burdensome test under the Bill. That is troublesome to me, because to do that would in itself impose requirements which go beyond the current Bolam test of negligence. It would mean that the test of clinical negligence was more burdensome under the Bill than under the common law.

Medical Innovation Bill [HL]

Lord Pannick Excerpts

Friday 24th October 2014 Lords Chamber

To what I am sure will be the great relief of noble Lords, I think that I have come to the end of this group of amendments.

[Lord Pannick (CB)]

My Lords, I have tabled a number of amendments in this group and I thank the noble Lord, Lord Saatchi, for his helpful responses to them. The purpose of my amendments is to ensure the protection of vulnerable and often desperate patients and their families. Amendment 10 seeks to introduce a test of reasonableness and proportionality. The noble Lord, Lord Saatchi, said in his comments that reasonableness and proportionality are central to the objectives of the Bill. Perhaps I may explain my concern.

The Bill uses the concept of “responsible” innovation. Clause 1(3), along with Amendment 12 in the name of the noble Lord, Lord Saatchi, which he has rightly described as crucial, would define responsible innovation by reference to process; that is, obtaining and taking account of the views of others, considering the risks and benefits, and securing transparency. My concern is that this is insufficient because it says nothing about the substantive content of the decision of the doctor to innovate. Amendment 10, which has the support of the noble Lords, Lord Winston and Lord Turnberg, would provide that innovation is lawful only if it is “reasonable and proportionate” in a substantive sense. It must be reasonable in the sense that the course of innovative treatment should be based on a reasoned decision, that in the light of some evidence the treatment has some prospect of success, and proportionate in the sense that in the patient’s case and taking into account the existing available treatments, the innovative treatment is not likely to cause pain and suffering that is unjustified by the prospects of success. Plainly, this is going to depend, and will necessarily depend, on the circumstances of the individual case.

At Second Reading, the noble and learned Lord, Lord Mackay of Clashfern, who I am pleased to see is in his place, said at col. 1457 that in the context of innovation, it is very difficult to see how you can assess the “reasonableness” of treatment. With respect, I do not accept that. You assess the reasonableness of an innovative treatment in a substantive sense by asking whether there is some evidence to suggest that the treatment will or may have a positive result. I think that reasonableness and proportionality are as important in the context of terminal illness as they are in any other context. Unreasonable and disproportionate medical treatment can cause pain and suffering and it can of course blight the remaining time that patients have with their families.

--- Later in debate ---

Moved by

[Lord Pannick]

2: Clause 1, page 1, line 2, after “encourage” insert “reasonable and”

[Lord Pannick]

My Lords, Amendment 2 refers again to the concept of “reasonable” innovative treatment. I will be very brief on this. First, I am reassured by the comments just made by the Minister that as a matter of law, “responsible” and “reasonable” in this context have the same meaning. Secondly, I am persuaded by the noble Baroness, Lady O’Neill of Bengarve, that we do not also need a criterion of proportionality in this context.

Thirdly and finally, the noble and learned Lord, Lord Mackay of Clashfern, pointed out that in this context of innovation there is of course by definition a limited amount of information already available. That is why innovation is required. My concern is that to justify the innovative treatment, especially if it causes further pain and suffering, it needs to be based on some evidence or at least on a rational judgment that there are some prospects of success. I should also mention Amendment 4, which would leave out the concept of “reckless” treatment. I note that the noble Lord, Lord Saatchi, has added his name to a similar amendment: Amendment 5. I beg to move.

--- Later in debate ---

[Lord Saatchi]

My Lords, I thank my noble friend the Minister for what he said. I think that there is a consensus on Amendment 5 in my name, that of the noble Lord, Lord Turnberg, and that of the noble Baroness, Lady Finlay, to remove the word “reckless”. I think that we are agreed on that. My noble friend dealt with the point under Amendment 3 from the noble Baroness and the noble Lord. We understand the wish to exclude certain treatments and types of surgery, and perhaps that is something that we can discuss between now and Report.

I share the Minister’s wish to accept Amendment 4 from the noble Lord, Lord Pannick, which removes the reference to deterring quackery from the purpose clause. We are agreed on the view that, if the noble Lord, Lord Pannick, believes that it is important to confine the purpose clause to the positive, we should not insist on the inclusion of both limbs—positive and negative—since as a matter of law the negative flows naturally from the positive in any event. If the noble Lord, Lord Pannick, presses that amendment, I shall support it.

[Lord Pannick]

I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

--- Later in debate ---

Moved by

[Lord Pannick]

4: Clause 1, page 1, line 3, leave out “(and accordingly to deter reckless irresponsible innovation)”

--- Later in debate ---

[Lord Giddens]

My Lords, the noble Lord, Lord Saatchi, knows that I support the thrust of the Bill but there are issues around some of these amendments that the noble Lord might at least listen to.

As I have mentioned previously, one of the core things about this legislation, given its sensitive nature, is that we have to comb through it all the time for possible perverse consequences. At the risk of sounding like sociology 101, unintended consequences are different from perverse consequences. Unintended consequences can be good or bad; perverse consequences undermine good intentions and reach the opposite result of what an individual needs to achieve. For example, strong rent controls were introduced in New York City to help poor people; in fact, they adversely affected them because they could not find places to live. The noble Lord says that the Bill is crystal clear in its intent, but that is not enough because there is a massive difference between intent and consequence. I therefore feel that as a general principle we should comb through the whole Bill to try to spot possible perverse consequences.

On the whole, with the reservations that have been noted, I support Amendment 6 because it might help to block off some of those reservations. We surely must know what innovation actually means in the context of clinical practice. Without such specification, one can see that various perverse consequences could occur. What would happen, for example, if a doctor was accused in court of failing to innovate because he or she did not try some eccentric form of treatment that was available? One could block off that perverse consequence by specifying, in the way that Amendment 6 tries to do, what actually counts as innovation.

I feel strongly that as the Bill proceeds through Parliament we must tighten every loophole that could lead to a situation in which, to some degree, the Bill undermines what it is actually supposed to achieve—helping vulnerable patients in a situation in which they are often desperate by bringing innovations to them that they would not have had available before. However, I fear that some of those things could happen if one was not aware of the minefield of perverse consequences. If we do not examine it all carefully, there could be consequences that, to some degree, undermine the purest of intentions with which the legislation is introduced.

[Lord Pannick]

My Lords, I added my name to Amendment 6 because I agree with the noble Lord, Lord Winston, that it would improve the Bill to provide a definition of the core concept of innovation. As the object of the Bill is to provide greater clarity for medical practitioners, it is surely perverse not to include any definition of that core concept in the Bill. No doubt Amendment 6 needs improvement, perhaps for the reasons given by my noble friend Lord Kakkar, but I could not be persuaded that it is beyond the very considerable skills of the draftsman of the Bill, Daniel Greenberg, to provide a definition of innovation.

[Lord Mackay of Clashfern]

My Lords, the word “innovation” is a straightforward word in the English language. I am not sure that clarity is necessarily brought by multiplying it by how many in this amendment. Apart from anything else, one of the possibilities of innovation is for a doctor to say, “The standard treatment for this is a particular course of operation and chemotherapy. My belief is that that would not ultimately save you; it would subject you to a lot of pain and suffering and so on. The best thing, as far as I am concerned, is that you should not have any further treatment”. I am not sure whether that comes under the definition in Amendment 6, but if we want simplicity, we should go for perfectly clear English words. “Innovation” is one of them.