Terminally Ill Adults (End of Life) Bill (Twenty First sitting)

Daniel Francis Excerpts

Committee stage
Tuesday 11th March 2025 Public Bill Committees

[Dr Opher]

I thank my hon. Friend the Member for York Central for tabling the amendment. The crucial word that the hon. Member for East Wiltshire said in all that was “should”. It is really important that people are strongly encouraged to discuss this with their families. Clause 9(2)(f) states that

“in so far as the assessing doctor considers it appropriate, advise the person to consider discussing the request with their next of kin and other persons they are close to.”

I totally support all that the hon. Member said: the family should always be involved in every decision. However, in the way we practice medicine in this country, if a patient has capacity—if they are not under a section under the Mental Health Act, for example, and can show that they have capacity—they can make decisions about their own healthcare. That involves whether they tell their family.

I agree that not to tell the family is not the best thing and not something I would say that the patient should do, but that is in their remit. It is important because, if we change that, we get rid of all the basis and the foundation of medical care and consent in this country. I agree wholeheartedly with the hon. Member, and I am a strong supporter of the family—I also think that in almost every situation the family will be involved—but the patient does not have to tell the family. That must remain part of their decision.

[Daniel Francis (Bexleyheath and Crayford) (Lab)]

I am torn by this amendment. I absolutely accept that it is the right, the autonomy, of an individual to make the decisions and to have confidentiality when making those decisions, but I will touch on a few things that I have said previously.

First, briefly, I hear what the hon. Member for East Wiltshire said about coercion. Secondly, however, there are two other aspects. Let me go back to something I have talked long and hard about, which is learning disability. One amendment has been accepted and I hope more are to come, but given what my hon. Friend the Member for Stroud said, in that scenario, someone might have to be helped by the doctor to make the decision, because of their level of capacity. When I have made the argument throughout our debates, that has never ever been doubted. The person who has been helped to make that decision may have decided, because they are a burden on their elderly parents, that they will not inform them. Again, that was the rationale of where I got to on Second Reading, frankly.

I see people with elderly parents, often now in their 70s or 80s, who have cared for that person throughout their life. As the Bill and the Mental Capacity Act are laid out, that person could go to the doctor to say, “I do not want my parents to know. I hear what you say, doctor, but under this provision of the Act”—clause 9 of the Bill—“I am not going to tell them.” Under the Mental Capacity Act, if the doctor had any queries about the capacity of that person to make those decisions, that doctor would have to assist them in making them. Let us be clear that that is what the Mental Capacity Act 2005 provides for, and that is what the code of practice says.

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[Daniel Francis]

That is what I have wrestled with. That conversation will happen, and at the end of it, I accept that the autonomy is with the individual, who may well make a decision that they believe is for the best but with which their loved one does not necessarily agree. I think there are examples from overseas of that having happened.

[Kit Malthouse (North West Hampshire) (Con)]

I agree about the primacy of autonomy, but does the hon. Gentleman agree that, given the status quo and the many stories that we have heard about individuals who took their lives but kept it secret from their families, whether by going to Switzerland or by doing it in a horrible way in lonely circumstances, a regulated atmosphere would makes it more likely that people will talk to their family about what their death will be like and, as we have learned from overseas, make arrangements for their family to be around them, or at least to say goodbye, as they move into that process? At the moment, because this area is unregulated, way more people do it in secret than need to.

[Daniel Francis]

I am not entirely persuaded. I think there is currently a mixture of cases, and there will potentially be a mixture of cases in future. I hear what the right hon. Member says, but my primary concern is about the way things are. As I say, I am minded not to support the amendments on balance, but I am concerned that we could end up hearing stories about someone’s loved one of 50 years, or their child with a learning disability, having had an assisted death—and the first they knew about it was when it was too late.

[Lewis Atkinson (Sunderland Central) (Lab)]

It is a pleasure to serve under your chairship this afternoon, Ms McVey.

I feel that we are dancing on the head of a pin, but I oppose the amendment. Members across the debate have recognised that, as Dr Sarah Cox from the Association for Palliative Medicine said, it is always for the patient to decide. As my hon. Friend the Member for Rother Valley pointed out, both the original clause and the amendment rightly retain that decision with the patient. They also retain the discretion of the doctor, whether that is on an appropriate test or a best interests test.

I note that in its submission the Royal College of Physicians advocated the removal of the clause, saying that it goes beyond current practice. I support the clause on balance, because of the importance of these conversations and so on, but the physicians who are likely to carry out the conversations think that it is inappropriate to specify these conversations in primary legislation.

There are two phrases in the amendment that I think are entirely inappropriate. First, there is “concluded in good faith”. I am sure it is not the intent of the author and mover of the amendment, but it suggests that in other instances people might be acting other than in good faith. I commend the words from my hon. Friend the Member for Ipswich. We have to start from the point that doctors are operating in good faith. It is dangerous to set up a good faith test, as opposed to an “other faith” test, in primary legislation.

Secondly, I am certainly not trying to reopen the long debates we had about the Mental Capacity Act, but Members will recall that in those debates we were very clear that the “best interests” test should not and does not apply. Introducing language about best interests the first time in the Bill is very dangerous, and totally against the spirit and principle of what we have debated so far. For those reasons, I am against both amendments.

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[Jake Richards]

As we heard in evidence from the chief medical officer, doctors deal with capacity issues on a day-to-day basis; I am not sure they necessarily need assistance from family members in that regard. However, I appreciate the point—I was going to come to that—

[Daniel Francis]

Will my hon. Friend give way on that point?

[Jake Richards]

I am going to make some progress, because I am not sure that point is crucial to the debate about this amendment; I am sure my hon. Friend will grab me afterwards. I did not mean to mischaracterise the evidence on that point.

I accept that there is a tension here. No man is an island, as the hon. Member for East Wiltshire notes, and of course this process may cause upset to others. Equally, the input of third parties to the assessment of all the issues of eligibility is worth while, but it has to be dealt with in a proportionate way. When we debate clause 12—hopefully shortly—perhaps we can discuss that, and I hope to speak to that point.

However, this amendment is trying to crack that delicate nut with a huge hammer. It fundamentally changes the relationship between doctor and patient, and puts the doctor in a position where they do not have the skills or expertise to make that best interest decision. The amendment therefore fails, and that is why I will vote against it.

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Court approval

[Daniel Francis]

I beg to move amendment 105, in clause 12, page 8, line 15, leave out subsections (4) and (5) and insert—

“(4A) Rules of Court must secure that in relation to an application under subsection (1), the High Court must—

(a) prescribe a procedure which in relation to each application appoints a person (the Official Solicitor in cases in brought in England and Wales) to act as advocate to the Court,

(b) hear from and question, in person—

(i) the person who made the application for the declaration,

(ii) the coordinating doctor,

(iii) the independent doctor, and

(c) consider hearing from and questioning, in person—

(i) persons properly interested in the welfare of the person who made the application for the declaration and other persons they are close to, and

(ii) any other person who has provided treatment or care for the person being assessed in relation to that person’s terminal illness.”

This amendment would require court rules to be made that would ensure an adversarial court process, by appointing an advocate to the court. It would also require them to hear from the person seeking assistance to end their life and both assessing doctors, and to consider also hearing from family members and others involved in the person’s care.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 407, in clause 12, page 8, line 19, leave out “may” and insert “must”.

This amendment would require the High Court to hear from and question the person who made the application for the declaration.

Amendment 410, in clause 12, page 8, line 27, leave out subsection (6).

The amendment would remove the ability of the court to hear from and question any person other than the person who made the application for the declaration and the assessing doctors.

Amendment 106, in clause 12, page 8, line 30, leave out “(5)” and insert “(4A)”.

This amendment is consequential on Amendment 105.

Amendment 107, in clause 12, page 8, line 44, leave out “(4)” and insert “(4A)”.

This amendment is consequential on Amendment 105.

[Daniel Francis]

I will withdraw amendment 105 later, but will speak to it briefly, as my name is on it. The amendment aims to require court rules to be made that would ensure an adversarial court process, by appointing an advocate to the court. It would also require them to hear from the person seeking assistance to end their life and both assessing doctors, and to consider also hearing from family members and others involved in the person’s care.

In our oral evidence sessions, we heard from Nicholas Mostyn and Alex Ruck Keene about some of the merits of doing so, with reference to the Bill that was before us at that stage. Since then, a significant number of amendments and new clauses have been tabled, so I will not press this amendment to a vote, given the other amendments now before the Committee.

[Juliet Campbell]

I rise to speak to amendments 407 and 410. Amendment 407 would leave out the word “may” and insert the word “must”, and would require the High Court to hear from and question all persons who made the application for a declaration. It is a probing amendment, which aims to question the guidelines for the judge to question and hear from some people and not all people. I will not press the amendment to a vote, but I seek clarity on what the criteria would be for the judge to question some people and not others.

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[Kim Leadbeater]

I think I have responded to the hon. Member for Broxtowe on amendment 407 by saying that the concern will potentially be covered by my new clause 21. On amendment 410, it is also my view that, whether it is the High Court or the panel or whoever we end up having over the course of this Committee, that third layer of scrutiny and safeguarding should be able to hear from other people, not just the patient and the doctor, so I would not support that amendment.

[Daniel Francis]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 410, in clause 12, page 8, line 27, leave out subsection (6).—(Juliet Campbell.)

The amendment would remove the ability of the court to hear from and question any person other than the person who made the application for the declaration and the assessing doctors.

Question put, That the amendment be made.

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[Jake Richards]

In my mind, any decision to give a certificate of eligibility could be subject to judicial review.

Third parties can put evidence before the panel to be considered, but it is not right that third parties might challenge the application. As I have set out before, this is not a dispute but a rigorous safeguarding process. If they have information about the person’s capacity, their diagnosis or any other relevant factors, they can and must ensure that the panel—if not the doctors or indeed the police—be seized of the information. Third parties can appeal the decision by way of judicial review. That would provide for a decision that was

“wrong, or…unjust because of a serious procedural or other irregularity in the proceedings”,

per amendment (a) to new clause 17. An injunction would be applied and the matter would have to be dealt with expeditiously. It is worth saying that all the evidence suggests that that would happen incredibly rarely. In Spain—

[Daniel Francis]

My hon. Friend is about to refer to Spain, as am I. Article 10 of the relevant Spanish law gives a right of appeal on a point of law to a higher court. Does he believe that we will be in line with the position in Spain? How long does he envision judicial review taking, given that we are dealing with somebody who is at the end of their life?

[Jake Richards]

The answer to my hon. Friend’s question is yes: judicial review is clearly an exercisable option in this case. I said “expeditiously” because lots of cases are heard expeditiously; High Court judges hear cases in the middle of the night, if there is a certain urgency. In these cases, one might imagine similar circumstances, but I must stress that they would happen incredibly rarely. All the evidence suggests that. In Spain, where a not dissimilar model is in place, such an approach is rarely used by family members. The vast majority of families attend the panel because they want to offer support and love to the person who has made the choice.

[Daniel Francis]

I just want to confirm that either side has the right of appeal in Spain.

[Jake Richards]

Yes.

The other side of the coin is that we must ensure that the process is workable. In Spain, 20% of people die before the panel hears their case. We must be very careful not to create something that is so burdensome as to be completely pointless. I believe that the amendments tabled by my hon. Friend the Member for Spen Valley aim successfully between ensuring flexibility and rigour. Each case will be different—more so than in any other set of proceedings that I can imagine, and I have thought hard. There will no doubt be some that are incredibly complex, in which the panel may require further assessments and hear from relevant experts, but there will be far more that are solemn and serious but straightforward, and that is correct.

Other amendments, such as amendment (d) to new clause 21, in the name of my hon. Friend the Member for Derby North, seek to mandate certain procedural steps. While I have great respect for her as a former colleague, I fundamentally disagree with her amendment, which would require that the panel “must consider” hearing from persons who may be

“interested in the welfare of the person”.

I repeat that this is not a welfare decision. The panel, just like the High Court judge, is not saying, “What do I think is in the best interests of this person?” It is ensuring that the person has made the decision per clause 1, where we started: “settled”, “informed” and “voluntary”. We enter new ground with this law change, and that is why it is a new process, but to my mind it is safer and workable. Colleagues can be reassured, and I urge people to support the change.