Read Bill Ministerial Extracts
Terminally Ill Adults (End of Life) Bill Debate
Full Debate: Read Full DebateBaroness Hayman
Main Page: Baroness Hayman (Crossbench - Life peer)Department Debates - View all Baroness Hayman's debates with the Home Office
(5 months, 3 weeks ago)
Lords ChamberMy Lords, I can beat the noble Baroness, Lady Morris of Bolton, by two years: in 2004, I was appointed a member of the Select Committee of this House investigating the Bill brought forward by the much-missed Lord Joffe. After that Bill, that committee had an extensive programme of work. It travelled—although not as far as it would have to travel today—to see all the jurisdictions where legislation is in place. We saw Dignitas, and we had many evidence sessions. Listening to the debate today, I wondered how many Members of your Lordships’ House had actually read that report and seen how these issues come up again and again.
Of course, there have been other Bills and other debates—more in this House than in the other place—and there have been many reports, most notably the Select Committee of the other place on health and social care. We have had a lot more evidence and looked at different ways of approaching it. What we have not resolved, of course, is the issue of principle that divides many people in this House.
I had a wry smile when the noble Lord, Lord Campbell-Savours, said we should not rush into this. It has been 21 years; I am getting near retirement, and I would like to see some progress made. We have to recognise that other jurisdictions have made progress and that there have been advances in palliative care, which I of course support. But I have to say to the noble Lord, Lord McColl, that, however advanced palliative care is, it does not help everybody. I am still haunted by the last conversation I had last year with someone very close to me who was dying in a London teaching hospital that had cared for him for many years, with wonderful palliative care. The last thing he said to me was, “Every night I go to sleep, I pray that I won’t wake up”.
On our visit to Oregon, one of the things that struck me most, which was new to me, was learning how many people asked for a prescription for the drugs to end their life but did not use them. It was around 40% and has been a pretty constant figure, I think, which has been replicated in other jurisdictions.
The right reverend Prelate the Bishop of London rightly said that if we change the law, it will affect more people than the 1% who have an assisted death; but that is a good thing. It would give tremendous comfort and courage to many people with terminal diseases to know that, if the worst comes to the worst, if palliative care cannot help them, there is an option they could choose to take. That would be a good and compassionate thing not just for the 1% but for many more of us.
Terminally Ill Adults (End of Life) Bill Debate
Full Debate: Read Full DebateBaroness Hayman
Main Page: Baroness Hayman (Crossbench - Life peer)Department Debates - View all Baroness Hayman's debates with the Department of Health and Social Care
(3 months, 3 weeks ago)
Lords ChamberMy Lords, I profoundly disagree with the argument just made by the noble Lord, Lord Blencathra. He suggested that using “ability” rather than “capacity” would end misunderstanding. I cannot agree that that is true because you would be creating an undefined and novel test and substituting that for one that has stood the test of time and is understood by the professionals who will be judged as to whether they have complied with the law when they act on that assessment. I was already committed to the view that we should keep the test that we have, but if I needed further assurance on that, the little interchange between the noble Baroness, Lady Jay, and the noble and learned Baroness, Lady Butler-Sloss, illustrated perfectly to me how one system, difficult though it is, has been used, examined and probed for many years and found to work—as against a new system, where the noble and learned Baroness, with all her experience, had not the slightest idea how that would work.
I think the key difference is that, when this Bill started, it was going to be judge-led. Now it is not and, as a consequence, we are talking about one of the most experienced judges we have ever known; so I think we are comparing apples and pears.
I cannot accept that. I am talking about the Bill that we have before us. The noble Lord, Lord Harper, asked: should we have a novel approach to this? My answer is no; it is safer to continue with the approach that we have.
I want to say one other thing to the Committee. I hope the Committee will accept that, given the experience that I have had here and the honour I had of being Lord Speaker, no one respects more the contribution that this House can make to improving legislation and the commitment that it should do its work properly. The noble Lord, Lord Harper, said that we were blessed in this House with many experts, and that their opinions should be listened to. The noble Lord, Lord Shinkwin, said that we should listen to the voices of those with lived experience. I am sad that the Select Committee did not do that, but I think that that is absolutely correct.
The one thing that we are not is what was said to me in 1974: “You have now been anointed by the popular vote”. I was then a Member of Parliament. It was a long time ago—in ancient times—but it was true. What has worried me slightly about the tone of this debate is that there has been a sense that this was a Private Member’s Bill introduced in the House of Lords, and that we were having the first go at any scrutiny of it. That is not true; it is not true at all. We do often get legislation from the other place that has not been scrutinised, but that is not true of this Bill. It has had much more scrutiny and I think we should have some respect for the fact that that has happened.
People say that we should not have an arbitrary timetable. Of course we do not want an arbitrary timetable. We have to do our job properly, but we should not be forced into a position where we are incapable of completing that job due to having an enormous number of amendments. We should concentrate on the important issues that we want the other place to take our views on seriously. I really think we are in danger of demeaning that process if we allow so much debate that we do not allow the other place to hear considered views on the important issues.
I have an enormous degree of respect for the noble Baroness, particularly given her position as a former Lord Speaker. I am a relatively new Member of your Lordships’ House, but I have interacted with it. I look around and there are a number of noble Lords here—such as the noble Lord, Lord Pannick—with whom I had a number of interactions on previous matters. So I am familiar with the different role of the two Houses, and I believe it is absolutely our job to get legislation right.
In the end, this is a Private Member’s Bill. It was not in the Government’s manifesto, so it has not been, to use the noble Baroness’s words, anointed by the popular will. This is our job. If in the end this House decides that this Bill is not fit for purpose and cannot be adequately put into law, it is our role to say to the House of Commons, “It isn’t good enough; we need to do this again”. It is our job to say to the Government that this is of such import that, as the noble Lord, Lord Tyrie, said, the Government should do their job and bring forward a better-drafted piece of legislation. That is our right, and we should reserve that right for later stages.
I follow the noble Lord’s argument, but he said that we should say, “We should do this again”. I think that if we reach that situation, the proper formulation is, “You should do this again”, and the other place could consider that. But the way we undertake that scrutiny should be responsible and reasonable and it should not deny the process of doing our job and putting those views and doing that—frankly, we have to be grown up about this and we have to behave responsibly about it.
My Lords, this is the first amendment to be introduced by the noble Baroness, Lady Finlay of Llandaff. We all acknowledge her extensive experience and deep knowledge of this issue, as both a doctor and a professor of palliative medicine. Like my noble friend Lord Shinkwin, I expect noble Lords across the House to benefit from the noble Baroness’s advice and guidance as we seek to improve this Bill through Committee.
I have listened carefully to the debate and it seems that there are two related but conceptually separate issues going on. One is a valuable, perhaps somewhat philosophical, debate about the difference between “can” and “able to”; in other words, just because you can take a decision, does it always mean that you are able to take a decision? It is an interesting debate to have.
There is a separate but related issue about how one reflects that or the conclusion one comes to in law. That is really the issue raised by the amendments to Clause 3 in the next group. As both the noble Lord, Lord Pannick, and the noble Baroness, Lady Hollins, pointed out—and as set out in the explanatory note for this amendment—Amendment 2 is linked to Amendment 115 from the noble Baroness, Lady Finlay, which seeks to replace Clause 3 with a new clause. To that extent, the debate we have just had is an hors d’oeuvre before the main course of group 3. Perhaps this is a restaurant that serves its hors d’oeuvres in larger portions than normal.
For reasons that I hope are obvious—I mean no discourtesy to the Committee—I may not be able to stay until the end of group 3, so I hope to take a quick moment now to explain this interrelationship. The proposed new Clause 3 is a considered amendment that challenges the Bill’s reliance on the definition of “capacity” under the Mental Capacity Act. It seeks to make special provision in the Bill for how the definition of lack of capacity is to be dealt with, and it touches on important information and the ability to make decisions. In particular, it builds in information relating to palliative care. I look forward to the Minister’s response to this group and I will read her response to the group of amendments on Clause 3, in due course, and the noble and learned Lord the sponsor’s response to both groups. Although we will debate these two groups separately, they seem to me to be intimately connected.
With some trepidation, I will respond to the point made by the noble Baroness, Lady Hayman. I am conscious of her experience in both this and the other House, which considerably exceeds mine on both counts. However, I touched on this point at Second Reading and, respectfully and certainly from my analysis, there does not appear to be any constitutional reason why this House should not take its time considering the Bill or even, should it wish to, reject it as a non-manifesto Bill that is also a Private Member’s Bill.
For noble Lords who are interested, there are some useful articles on this point from Professor Mark Elliott, who is a professor of public law at the University of Cambridge. I refer to him because of two important features. First, he is a professor of public law at the University of Cambridge. Secondly, when I was a Minister, he did not agree with me on anything so, if we agree on this, it is likely that we are actually right.
In all seriousness, the noble Baroness, Lady Berger, made a point that I made at Second Reading, which is particularly important in the context of this Bill. A number of Members of Parliament said, both in and outside the Chamber, that they voted for the Bill on the express basis that they relied on this House to give it proper scrutiny. If the noble Baroness wants to intervene, of course I will give way.
I obviously did not express myself very clearly. I was not in any way suggesting that this was a government Bill to which the conventions applied or that there was any reason why we should not properly scrutinise it; I absolutely stand by that, and I do not think that there is any bar to us doing that. What I was suggesting to the Committee, respectfully, is that it should take very seriously the fact that this Bill has been considered and approved by the other place; and that, therefore, in the conduct of our proceedings, we should make sure that we do things in a considered and responsible way. To speak completely personally, I think that this House should be able to vote on amendments—obviously, it has the right to vote at Third Reading—but we should reach decisions on this Bill in an appropriate timeframe. It would not be satisfactory to anyone if this were simply extended and extended so that we never actually reached a view.
My Lords, I am very grateful to the noble Baroness for intervening. If there is a difference between us, it may be one of emphasis and not substance, because, respectfully, I do not disagree with anything she just said. As I said in my opening remarks, the Official Opposition’s position from the Front Bench is that we want this House to be able to do proper scrutiny.
Terminally Ill Adults (End of Life) Bill Debate
Full Debate: Read Full DebateBaroness Hayman
Main Page: Baroness Hayman (Crossbench - Life peer)Department Debates - View all Baroness Hayman's debates with the Ministry of Justice
(1 month, 3 weeks ago)
Lords Chamber
Lord Blencathra (Con)
Why must we finish this group and start the next session with a new amendment? In Committee, we often adjourn at 10 pm when we are half way through a large group, and we come back and polish it off the next day. Nothing in the Companion suggests that we are honour-bound or duty-bound to finish a group on a certain timescale. There is no problem with coming back and completing it then.
The noble Lord is of course completely correct that there is nothing in the Companion. It is however difficult for many Members, when they have spoken in a debate, not to be able to hear from the Front Benches because they have arrangements for another occasion. I say gently to the last two speakers that we are not talking simply about the Companion; we are talking about last night’s decision and the mood and concern of the House that we make progress. It is very unfair to attack the Government Whips on this when they are trying to work their way through the input of last night’s decision.
Lord Blencathra (Con)
I respect what the noble Baroness has said, but it is also the case that it is disrespectful to Members who have prepared speeches, wishing to say something on palliative care, and who deliberately stayed quiet in previous debates so that they could make a point on a subject in which they are interested. They are now being deprived of the opportunity to do so.
Terminally Ill Adults (End of Life) Bill Debate
Full Debate: Read Full DebateBaroness Hayman
Main Page: Baroness Hayman (Crossbench - Life peer)Department Debates - View all Baroness Hayman's debates with the Department of Health and Social Care
(1 month, 1 week ago)
Lords ChamberMy Lords, I will briefly follow on from the noble Lord on the issue of overengineering. I had great sympathy with the words of the noble Baroness, Lady Blackstone, and I suspect that there is widespread support in the Committee that face-to-face consultations should, in general practice and in the norm, be what happens in these circumstances. We get into great difficulty when we micro-legislate to cover every single circumstance that might occur. A code of practice is a more reasonable and flexible document to deal with this. The noble Lord shakes his head, but he just spoke about the dangers of having anyone else in the room in a consultation because of the possibility of coercion, yet the noble Baroness, Lady Smith, spoke potently about how important it was for there to be a family member, or support, or someone who could hear.
I was not speaking against someone being in the room. I am speaking about someone being in the room whenever it is on Zoom or on camera and not in person, because you do not know whether the person in the room is privately and secretly coercing that person.
I understand that the noble Lord was talking about a subset of consultations, but this is my point: I think he accepted that there might, in any process, be exceptional circumstances where a consultation was not in person. I am just saying that, even in that narrow subset, there might be a reason for another person to be in the room. I am not talking about that specific point; I am trying, in general, to suggest that we should try to lay down some principles but not try to overengineer and cover every possible circumstance.
My Lords, like the noble Baroness, Lady Hayman, I will respond to the noble Baroness, Lady Blackstone. She seemed to express a kind of common-sense view that of course we all agree that it is much better to have face-to-face interviews, and we have heard all sorts of evidence today from the medical profession and the legal profession about how that is much better. The noble Baroness thinks there should be a code of practice. I agree, but surely that code of practice should be about where there are exceptions. It would be much safer to have a Bill in which it is specified that interviews should be face to face, except for certain exceptions laid out in a code of practice. Surely it should be that way around in order that we have as safe a Bill as possible.
Terminally Ill Adults (End of Life) Bill Debate
Full Debate: Read Full DebateBaroness Hayman
Main Page: Baroness Hayman (Crossbench - Life peer)Department Debates - View all Baroness Hayman's debates with the Department of Health and Social Care
(1 month ago)
Lords ChamberMy Lords, I of course agree with the noble Baroness, Lady Gerada, that there are many different motives for killing yourself, but we are talking about making a law here. It is very important that the natural and ordinary meaning of words is established and preserved. Suicide means killing yourself, and what is proposed in the Bill is killing yourself with assistance. It is very important to keep explaining that to people, because otherwise they will be permanently misled about what is actually happening.
My Lords, the noble Lord says that we should understand the ordinary meaning of words, and I agree with him. I must say to him, however, that my own mother—who turned her face to the door and stopped eating and drinking—did not commit suicide. We did not feel that. She was at the end of her life, she was terminally ill and she decided that she had had enough. She did not want the next blood transfusion, and she did not want any more time. I find it really offensive to be told that she committed suicide.
I also want to respond to the noble Baroness, Lady Gerada. Words do matter, which is why plain speaking matters. Being told that you cannot say certain words because they might offend someone is unhelpful. Can the noble Baronesses respond to the fact that, in opinion polling, if people are asked whether they support assisted dying, many will say yes? If they are asked whether they support assisted suicide, they say no. In other words, calling something what it is—namely, suicide—is not necessarily something that the noble Baronesses should be frightened of. They cannot instruct us as legislators to do the job of spin doctors in trying to make something more palatable by using kind words. We have to be honest with the public and then they will decide; it is up to them.
Perhaps I may follow up on the very sad story from the noble Baroness, Lady Hayman, of her mother and how she died. This would not be considered to be suicide under the law, as I understand it. As has been discussed quite a lot during this Bill, refusing treatment is not suicide.
I understand that, and I understand that my mother would not have been considered to have committed suicide. What I am trying to say is that her desire for her life to end, and the method that she took to do that, was not assisted dying. That was not available to her and it did not come into the equation. On the categorisation of that as suicide, and this Bill is being called “assisted suicide”, I agree with the noble Baroness, Lady Fox, that we have to be clear. It is not that I am taking offence; I think that it is wrong to categorise people who wish their life to come to an end—and who therefore refuse treatment and food, or who choose assisted dying under the provisions of this Bill—as in some way committing suicide.
My Lords, I wonder if I might briefly apologise to the Committee. I was reading a quote—they were not my words. The quote was about a young woman who was said to have committed suicide. If we are going to be respectful of everyone, we must drop the word “commit”. It is not a crime to end your own life. I know that, for the relatives of those who have taken their own lives by suicide, the term “commit” can be deeply offensive. But as many people in this Committee will know, when you have experienced the suicide of someone very close to you, it lives on, in the way that a death also lives on in the person left behind. But I apologise, because it was a quote I was reading, and I think we should return to the topic of the amendments before us, if we may.
Terminally Ill Adults (End of Life) Bill Debate
Full Debate: Read Full DebateBaroness Hayman
Main Page: Baroness Hayman (Crossbench - Life peer)Department Debates - View all Baroness Hayman's debates with the Ministry of Justice
(1 week, 1 day ago)
Lords ChamberMy Lords, some intricate and sophisticated schemes have been put forward concerning the nature of the panels. In listening to the noble Lord, Lord Sandhurst, I thought how fascinating it was to hear about the ways in which the Law Society has approached this issue. We have heard a lot of fine speeches challenging everything from the size of the panel to whether it should have investigatory, prosecutorial and even quasi-judicial powers. I suddenly felt like I was in an episode of “CSI” or something; I thought, “They’re only panels”.
At this stage, things are getting so demanding and confusing—and, potentially, overlayered and bureaucratic—that I think we should take a step back. I am very sympathetic to why this has happened. It is driven by a desire for safeguarding and for these panels to have teeth. It is created by the loose wording in the Bill—in my opinion, it is poorly drafted—that means people are asking, “What will these panels be able to do? What should they be able to do? Can we join the dots?”
I want to go back and, more simplistically, if you like, take at face value the panels as they are described by the sponsors of the Bill. They will have three members: a social worker, a legal person, and a psychiatrist or somebody from the psychiatric profession. What will we expect of them? I ask this because just announcing that is not sufficient. Let me say why. I have put my name to Amendment 925A in the name of the noble Lord, Lord Murray of Blidworth, who explained very well what he is trying to do with his amendments. What is needed is a process for how you end up on a panel if you are one of those three people the sponsors want.
Amendment 925A would set up an independent appointments process. It talks about appropriate tests, interviewing people, vetting and so on. That is important, because the one thing we know from all the speeches we have heard is that these panels are going to be important and will make important decisions. You cannot put an ad in the paper saying, “Are you a social worker? Call in”. We have to think about what will be required of them. The noble Lord, Lord Murray, has done us a real service by straightforwardly saying that we need to have a system and that this is necessary, albeit by no means sufficient, to counter any risk of these panels being inadequately staffed by the wrong or inappropriate people and to fulfil the aspirations of the Bill’s sponsors. It is absolutely necessary to counter any notion that the panel members will be just yes-men and yes-women who have turned up. In my opinion, we need to know that they are of the right calibre.
The role of panels is not just crucial in terms of safeguarding for those who go down the assisted dying route. We have heard some important speeches about safeguarding, but we must also consider that a proper process is required to protect panel members themselves from what is potentially likely: the blame game.
I have some qualms about the privacy issue that the noble Lord, Lord Jackson of Peterborough, raised. He conceded that there might be some problems with this. It was another testy exchange with the noble Baroness, Lady Hayter, but we have to consider both sides of that exchange as being valid, because the panels are going to have to take on some difficult issues.
I am sure that the noble and learned Lord, Lord Falconer, will remember what I thought was a tricky exchange on “Newsnight” last year, when he was asked about a situation where a 21 year-old could successfully request an assisted death and their parents would find out about it only after they were dead. Reference has made to the fact that that would happen with suicide, but in this instance, the difference is that heartbroken, grieving mums, dads or other family members would find out not only that their 21 year-old child was dead, but that they had been to a panel of social workers and so on, it had been okayed, and they had not known about it. It is only fair to note that they would want to know exactly on what basis that panel made the decision. They would ask what the qualifications of the people on that panel were. It has to be said that that 21 year-old could have a learning disability, Down syndrome or a previous history of mental illness and had tried to commit suicide in the past. Any people with a similar illness could actually be granted the right to an assisted death by that panel.
You can imagine the multiple scenarios. I thought of that, because I remember in Committee in the other place, Naz Shah, the Labour MP, made an excellent thought-provoking contribution when she said that when such cases happen, the public, including family members of the person who has died, will rightly demand answers and so will the media. They will want to know who the panel members were and why they made the judgment that they did.
There is a lot at stake here. I do not necessarily agree with the view of the noble Lord, Lord Jackson, that everything should be in the public domain, but there will be demands to know what is going on. Is it being hidden away?
The way that Amendment 925A sets up a process will, in the end, protect people, because otherwise, panel members are likely to be on the receiving end of some intrusion whether they like it or not. We have to make sure that the right people are on the panel.
I also just wanted to raise the staffing of these panels. This feels very banal after some of the things people have been talking about, but are there enough social workers and psychiatrists around to go on to the panels? This seems to be a rather practical problem before we get anywhere. At the moment, in terms of professional panellists, there is one psychiatrist on each panel, yet the most recent workforce data shows that one in six consultant psychiatric posts is unfilled. So, that shortfall must cause problems. The Royal College of Psychiatrists has said:
“As things currently stand, mental health services simply do not have the resource required to meet a new range of demands”.
I am just worried that, if the commission struggles to find enough psychiatrists, the temptation will be to appoint anyone available and willing who can be ticked-boxed as a mental health professional. That is a bit nerve-wracking, which is why interviews, qualifications and so on are important.
The same resource deficit challenges exist in terms of legal members who, after all, we are told will replace judges in a way, according to the noble and learned Lord, Lord Falconer. But who are these legal members? Where will they be found, given the immense financial and resource constraints on the justice system that are so bad, we are told, that the Government are embarking on judicial vandalism, in my opinion, in sacrificing jury trials? If there is a problem of scarcity, is the recruitment of real legal expertise to the panel guaranteed?
Finally, on the third panel members, the social workers, given what the British Association of Social Workers have said about the sector being at capacity—and it has noted that the panel proposals are not resource-light—noble Lords can see that there might be a problem. The shortages of all three panel member professionals are not evenly distributed throughout the country, so what does the noble and learned Lord, Lord Falconer, think about a postcode lottery? What if you cannot find the legal expertise, social worker and psychiatrist in one part of the country where there is a great need? Has he consulted, as the sponsor of the Bill, with the likes of the Royal College of Psychiatrists and the British Association of Social Workers about workforce pressures?
My final question is for the Minister, with regard to the panels. What assessment have the Government made of their workability, given the problems raised by the professional bodies of social workers and psychiatrists? If there are not enough people available, surely the panels will not be workable and therefore this part of the Bill needs to be sorted out; otherwise, there is no point passing it as it stands, because it will never happen.
My Lords, I am pleased to follow the noble Baroness, Lady Fox of Buckley, not least because I often do not agree with her but I did agree with several of the things she has just said. She started off by talking about the dangers of intricacy in what we lay down in the Bill—about how the panels should conduct themselves. The more I listened to the speeches and the more I read the amendments, the more worried I was about not only the overly bureaucratic nature of this, and the over-engineering of the processes the noble Baroness referred to, but the invasion of privacy on many levels.
We all recognise the role of the panels in safeguarding against abuse, but there will be a range of people. I was thinking of how I would feel on one of the panels, being interrogated along the lines of some of these amendments. The amendment in the name of the noble Baroness, Lady Gray of Tottenham, says that I must be asked whether I have discussed the request with my next of kin and any other persons I am close to. Where someone has not done so, they will be asked to discuss their reasons for not doing so. That is way too intrusive and well beyond a way of finding out whether I have been coerced in this situation. It goes much too far, is over-engineered and, in the words we started off with today, is not kind to the majority of those who will be seeking help in circumstances they find intolerable. They find the way in which they are dying intolerable; it is not that they want to end their life, but it is because they are dying. I find that the whole tenor of this conversation does not think about the people who are going to be involved in, and subject to, this process. We have to think about them as well, and balance it with the sort of protections that are needed to make sure that bad things do not happen within these processes.
I was also surprised at the level of involvement in the amendment about children and information in the name of the noble Baroness, Lady Finlay—and she and I agree on many things. This is desperately personal stuff within families. The idea that not only should you be consulted on why you have not spoken to a child about this, but that you should have to nominate someone else to report your death, and then you should make sure that there are bereavement services, opens up a whole area. Just like palliative care, bereavement services are very patchy—all over the place—and vary tremendously. Why should this category of parental loss be subject to the obligation of the state to provide bereavement services, as against every other sort of parental loss?
My Lords, perhaps I might come in at this point. First, factually, I point out that the amendment that I have tabled does not state “bereavement services”; it states “support”. That is completely different.
Will the noble Baroness accept that we would have to define “support” and how it is different from “bereavement services”? Then we will have more of these complications.