Terminally Ill Adults (End of Life) Bill (Twenty-ninth sitting)

Danny Kruger Excerpts

Committee stage
Tuesday 25th March 2025 Public Bill Committees

[Naz Shah]

I am happy to, Mrs Harris.

We should be determined not to see big outsourcing companies bidding for assisted dying contracts and then potentially misusing them the way in which they have misused other public services. That is not because I am opposed to firms operating in a free market or making money when they do their job well; it is because the way we run outsourced Government contracts in this country often has nothing to do with the free market and nothing to do with companies working well.

Finally, we need to ask hard questions about how the contracts for assisted dying would be structured. Would companies be paid a fee for each stage of the assisted dying process that they have provided: one fee for providing the first assessment by a doctor, another for a second assessment and so on, up until the final fee for helping the patient take the lethal drugs? As I said this morning, we do not know what the proposal for the structure is. That is why it is important that we explore and understand the risks of every structure.

There are Government services that we can safely outsource. Assessing whether people are fit to end their life is not one of them, and neither is helping people to take lethal drugs. These clauses will enable future Governments to open up lucrative contracts for assisted dying that will almost certainly be won by companies that have often been incompetent and have potentially been dishonest. I strongly oppose the new clauses.

[Danny Kruger (East Wiltshire) (Con)]

I share all the hon. Lady’s concerns. In relation to the intervention made by the hon. Member for Spen Valley, is she aware that G4S has a health services division in the UK that directly employs doctors and other healthcare professionals?

[The Chair]

Order. Mr Kruger, we have already had that issue. We need to stick to the amendments.

[Danny Kruger]

I take your ruling, Mrs Harris, but the amendment is explicitly about this.

[Naz Shah]

When it comes to NHS providers, or any service providers, and contracting or outsourcing, we have legislation in this place for whistleblowing. I raised the subject with the Health Secretary in relation to my local trust only today. With the best will in the world, mistakes happen. We legislated to protect whistleblowers, and that ties in directly to these risks. We must do everything we can to mitigate such risks in the Bill.

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New clause 36 imposes a duty on the Secretary of State to make regulations to ensure that arrangements are made for voluntary assisted dying services to be provided in England. It also imposes a power on the Secretary of State to make other provision about matters related to voluntary assisted dying services in England. The regulations made by the Secretary of State can provide that references to the health service in the National Health Service Act 2006 include references to a voluntary assisted dying service in England. That ensures that voluntary assisted dying services can be provided via the NHS. The new clause further ensures that voluntary assisted dying services provided as part of the health service must be free of charge unless charging is expressly provided for.

[Danny Kruger]

First, on the proposed amendment to the NHS Act, will the Minister confirm that the implication is that it is not currently possible to deliver assisted dying services under the Act? Secondly, to help me understand new clause 36, is it proposed that the Government will amend the NHS Act through regulations, a statutory instrument, or will the courts read the new clause as inferring that assisted dying is compatible with the NHS Act? Is there an intention to change the wording of the NHS Act, or is it just that we should now read “healthcare” as including assisted dying? I would be very grateful if the Minister could explain, because it is not clear to me from the phrasing.

[Stephen Kinnock]

New clause 36 creates the basis for the provision of assisted dying services, in compliance with all the legislation that defines how the national health service works. If the new clause is agreed by the Committee, and ultimately by Parliament, further amendments and changes will not be required. It will be the basis for the provision of the assisted dying service, within the framework of all the legislation that defines how the NHS works.

[Danny Kruger]

New clause 36 specifies that the NHS Act will require amendment. Is the Minister saying that that is not in fact the case?

[Stephen Kinnock]

New clause 36 specifies that the Secretary of State will, by regulation, set out the operating framework for the delivery of the assisted dying service. That will be the change to the legislation that is required. I apologise to the hon. Gentleman if I am missing something. I do not know whether we are talking at cross purposes here. What I am saying is that new clause 36 provides the basis for the delivery of the service. I am sorry if I am missing his point, but that is my understanding.

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[Kim Leadbeater]

We have had some excellent and extremely thorough debates covering all aspects of the Bill since the Committee first met. There has been an unprecedented level of scrutiny, and rightly so, given the gravity of the issue. The clause before us is one of the most important that we will consider. Without it, the Bill’s objective of offering a compassionate and dignified choice to terminally ill adults could not be met. The injustices of the status quo would remain, with too many people travelling abroad to seek an assisted death or taking matters into their own hands here at home, alone and often before they need to, in order to protect their loved ones from the threat of prosecution. Those people would be left, as they are now, with no protections against coercion or pressure to end their life and, crucially, with no ability to choose the manner and timing of their death so that they can say goodbye and be remembered by their loved ones as they would wish.

Clearly, some hon. Members do not want those people to have that choice. They are fully entitled to that view. However, if Parliament decides otherwise and gives that choice, it is our responsibility to ensure that it can be exercised without adding constraints and impediments that would serve only to make people’s last days and weeks more traumatic, not less. That is one reason, although not the only reason, why I am clear that the process must be available as part of the range of services available to patients under the NHS and free at the point of need. It must be for the Secretary of State to make provision for the service in England, and for Ministers in Wales to do the same in Wales if the Senedd agrees. The House of Commons must have the opportunity to scrutinise the regulations under the affirmative procedure.

Despite the challenges that it faces, the NHS is a trusted institution staffed by some of the best qualified and skilled health professionals anywhere in the world. Not all of them will want to participate, and it is their absolute right not to, but patients and the wider public should be reassured that assisted dying services would be commissioned and regulated in the same way as other services through the NHS, a system with which they are familiar.

There is another very important reason why I do not believe that voluntary assisted dying should be a service that is separate from the core responsibilities of the NHS. The hon. Member for East Wiltshire and others have described the decision to request an assisted death as a fork in the road. I fundamentally disagree. “Fork in the road” implies that once someone decides which route they will take, that is it: they have chosen their direction of travel. That goes completely against the principles behind the Bill.

The option of an assisted death is just that: it is an option throughout. Right up until the final moment, the person can decide not to exercise that choice. Experience from around the world suggests that consistently 30% to 40% of people do not, but knowing that they have the option has given them the comfort and reassurance that they need to make their final days less stressful and less fearful. It is crucial that the option of a voluntary assisted death remain part of an holistic approach to end-of-life care. If other options—including palliative care or the comfort provided by a hospice or other institution—are working for the individual, they have no need to take it up, but if it remains their clear, settled and informed wish to do so, that is their decision.

My belief that a person requesting an assisted death should be guided through the process, in a health and care environment that they trust and are familiar with, extends to private provision. Other commissioned and regulated services are supplied by a range of providers; the same should apply in this context, as my hon. Friend the Member for Sunderland Central said.

NHS trusts and ICBs may use private providers in some circumstances, as they already do. This provides flexibility, which is important, but what matters is that the safeguards and protections in this Bill will apply no matter where the service is supplied. The same requirements on doctors will apply, including the need to prepare reports and send them to the commissioner, and the stipulation that a medical practitioner cannot benefit financially or in any material way from the death of a person and can only receive reasonable remuneration for providing the service. My new clauses 36 and 37 make provision for this. The amendments to the new clauses seek to frustrate or delay that intention, and I cannot support them.

Perhaps it is the Committee that is at a fork in the road. One route leads towards the correction of an injustice that has already lasted too long, and it offers a safe and compassionate choice at the end of life. The other route is to say that we are okay leaving things as they are, that the status quo is defensible and that people do not deserve to be given that choice.

[Danny Kruger]

I hope the hon. Lady does not really think that I or others think the status quo defensible. There are clearly major problems with our palliative care system that we all recognise and want to improve. I would be grateful if she acknowledged that we need to improve palliative care.

On the hon. Lady’s point about remuneration, the Bill specifies that it would not be regarded as illegitimate for doctors to earn reasonable remuneration. What does she think “reasonable” is? How would we designate the appropriate remuneration for doctors? Does she agree that there is nothing in the Bill to stop private providers supplying the service and making money from it?

[Kim Leadbeater]

The approach to reasonable remuneration would be the same as in any other service commissioned by the NHS. There are tariffs for services that doctors provide. That is not for us in Parliament to decide; it would be up to the NHS and the commissioning bodies.

I understand that some people might be uncomfortable with private providers. If so, I suggest that they are probably uncomfortable—which might be surprising, given their politics—with the concept of private healthcare provision per se. Whatever our moral view on that is, we cannot take assisted dying out of the system that we currently have. I think it is really important that the choice is given to terminally ill patients within the framework that we have.

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[Danny Kruger]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 disagreed to.

Clause 33

Notifications to Chief Medical Officers

[Kim Leadbeater]

I beg to move amendment 539, in clause 33, page 19, line 34, leave out subsections (1) and (2) and insert—

“(1) The Secretary of State may by regulations make provision requiring a registered medical practitioner to notify the Commissioner of the occurrence of an event of a specified description.”

This amendment replaces a power to make regulations requiring practitioners to notify the relevant Chief Medical Officer of certain events, including any events specified in regulations, with a power to make regulations requiring practitioners to notify the Commissioner of any event specified in the regulations.

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[Kim Leadbeater]

Amendment 382 and the consequential amendments provide for monitoring, investigation and reporting functions under clause 34 to be carried out by the voluntary assisted dying commissioner. The commissioner will submit an annual report to the appropriate national authority—Parliament or the Senedd—on the operation of the Act, as set out in amendment 389. The appropriate national authority must publish any report received under this section, prepare and publish a response to any such report, and lay before Parliament or Senedd Cymru a copy of the report and the response. I think the Committee is in agreement about the importance of reporting and monitoring under the Act, and I hope it can support these amendments.

[Danny Kruger]

I appreciate that the amendments are necessary for the new design of the Bill, but I want to express my concern that they establish an assisted dying regime that is left to monitor itself. When the person who facilitates these profound decisions is also the one who reviews them, it threatens not just the integrity of the system but the safety and trust of those it serves. Without labouring the point, other jurisdictions have significant problems with reporting and the information being the responsibility of those delivering the service. In Oregon, where assisted dying has been legal since 1997, the state relies on doctors to self-report compliance. We are left trusting that every form filled in will tell the whole story.

Robert Clark, the former Attorney-General of Victoria, is very concerned about the operation of the legislation in Australia. He has highlighted how the voluntary assisted dying review board, which is a similar arrangement to the commission proposed here, relies on paperwork from the doctors themselves, with no routine audits or real-time checks. He pointed out that a tiny group of doctors—in fact, only 10—handled 55% of all cases in 2023-24, according to the review board’s data. Many of those doctors were advocates for the legalisation of the programme. I am concerned about the implications of a system that effectively trusts doctors to provide information without any proper review.

Lastly, with all due respect to whoever comes in as commissioner, the replacement of the chief medical officer with the commissioner represents a downgrading of the scrutiny the Bill offers. We know that the commissioner is likely to be a retired judge, which is a very distinguished position, but they will not be somebody with the serious political status of the chief medical officer. The CMO role is equivalent to a permanent secretary. I am sure the hon. Member for Spen Valley acknowledges that our current CMO is probably the best-known public servant in the country. It is very significant that we are proposing to downgrade the role fulfilled by the CMO. I do not think a retired High Court judge will have the same status.

[Kim Leadbeater]

I thought the hon. Gentleman was quite keen on a judge, but now maybe less so. I hope he is reassured by amendment 455, which requires the commissioner to consult the chief medical officer. That shows really clear intent for the post to have judicial and medical expertise and oversight.

[Danny Kruger]

I am keen on actual judges who sit in court with the full authority of a judge, not a retired judge sitting at the head of a quango very far away from the decisions made about assisted dying. Nevertheless, I am grateful to the hon. Lady, and I appreciate the fact that there will be a duty to consult. We want to have as much input from the CMO as possible in the administration of the service.

[Naz Shah]

I rise to speak to amendment 382. My hon. Friend the Member for Spen Valley may argue that some of my criticisms of the amendment relate in particular to two other amendments she has tabled: amendments 455 and 456. Indeed, I took an intervention on the matter earlier. I have read those amendments and they do not answer my concerns about amendment 382. They were grouped with amendment 382 until this morning, when the grouping was changed, so I will address them in my next speech.

This is a good moment to pay tribute to the Committee Clerks for their extremely hard work. I thank them for the way they have coped with the complex groupings and huge numbers of amendments that are unprecedented for a private Member’s Bill in this century.

My hon. Friend’s explanatory statement gives a clear explanation about what amendment 382 does. It provides for the monitoring, investigation and reporting functions under clause 34 to be carried out by the voluntary assisted dying commissioner instead of the chief medical officers for England and Wales. I can think of two possible arguments in support of it. I do not know whether either was behind my hon. Friend’s decision to table the amendment, but they are certainly the best to my mind.

The first argument in favour is that the chief medical officers for England and Wales already have a great many demands on their time. Members might say that we should not risk overloading them and should instead give another official the responsibility of looking at how assisted dying systems work. The second argument in favour is that the amendments to the Bill create a voluntary assisted dying commissioner, and that person and their officials will build up expertise in that field, so it could be argued that the commissioner would be the best person to lead monitoring, investigation and reporting.

Unfortunately I do not think those arguments hold water. On the first, it is true that CMOs have a great deal to do, but if we pass the Bill, it will be one of the biggest changes made to the duties of doctors in this country. For the first time, they will be able to help patients to take lethal drugs solely in order to bring about their death. The chief medical officers for England and Wales are senior doctors who advice Governments on all medical matters; of course they should be centrally involved in seeing whether the system works and whether there are any problems.

The second argument—that the commissioner’s office will become assisted dying subject matter experts—does not stand up either. It is true that the commissioner and the officials they recruit will come to know a great deal about the system they set up, but the very fact that they will set up and run the system means they should not take the lead on monitoring, investigating and reporting. That would mean that the commissioner and their staff would be the first people who decide whether they are doing a good job. Asking people to mark their own homework is a really bad way to check that any system is working properly. It is not how we inspect and report on schools; Ofsted has that job, not headteachers or local councils. It is not how we regulate banks, which are overseen by independent authorities.

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[Naz Shah]

Under the Bill as presented on Second Reading, the Secretary of State would have to report to Parliament on how the assisted dying system was functioning, but they would do so only after the system had been in operation for five years. Under amendment 452, tabled by my hon. Friend the Member for York Central, the Secretary of State would be required to report annually on how the system was working.

The Bill’s original provision for a five-yearly report was extremely surprising. The requirement on the Secretary of State to report to Parliament is a major safeguard that will prompt them and their officials to probe all the available data on the system. It will also allow Members of this House and the other place to go over that information and look for problems, should they arise, and ways to resolve them. It could be one way to identify failings in the system early. Given that we are discussing a system to allow people to take lethal drugs, that is surely what we should aim for. We cannot afford to wait through years of media reports and complaints before then having to investigate alleged problems.

If the amendment is accepted, it will not be certain that the Secretary of State’s report and the scrutiny of Parliament will identify problems in a timely way, but that possibility will be increased. If we have to wait five years for a report, it is much less likely that we will spot any problems before they have had terrible consequences. I urge Members to vote for the amendment to replace the five-yearly report.

[Danny Kruger]

I concur with the points made by the hon. Member for Bradford West. I very much appreciate the presence of clause 35 in the Bill—it is helpful that we ensure a proper review—but, as the hon. Lady said, five years feels too long to wait, so I support the amendment in the name of the hon. Member for York Central, as well as amendments 493 to 495, tabled by the hon. Member for Bexleyheath and Crayford, who has suggested a three-year review period.

My simple further point is that we are potentially creating threshold legislation: once we take the step down this road, there is no going back. The Bill leaves so much open for further expansion, I suggest, but certainly for the modification and clarification of the operation of the legislation. There is a lot left for ministerial discretion, guidance and codes of practice, as we have debated, and indeed new powers have been added, including a widening of the Henry VIII power. I think, then, that it is important to bring forward the review period.

As my amendment 526 suggests, I also think it is not sufficient simply to undertake a review, even one that is annual or every three years. There must be a guaranteed right to a debate and to hold Ministers to account at the Dispatch Box, which my amendment would insist on.

Lastly, on the inherent potential for expansion due to the wide discretion that the Bill still gives future Ministers, my concern is that the review itself might become a Trojan horse for further expansion, because that is what we see in other countries. It is held out as a safeguard, and that is exactly how we should regard it—I hope it will be that. Having a proper debate and proper ministerial accountability will allow us to check the operation of the Bill thoroughly and enable Parliament to keep it under very close scrutiny.

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Question proposed, That the clause stand part of the Bill.

[Danny Kruger]

I do not want to take the Committee’s time, but I invite the Bill’s promoter or the Minister to make an observation about the implications of clause 38, because the power to make

“such supplementary, incidental or consequential provision…as the Secretary of State considers appropriate for the purposes or in consequence of any provision made by this Act.”

reads to me as extremely broad. Not to repeat the point ad nauseam, but I am concerned, as ever, about the degree of discretion given to Ministers—most of it under the negative procedure. I invite the promoter or the Minister to lay out, in as much detail as they are able, the purpose of this clause and what sorts of provisions it might enable.

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[Naz Shah]

I thank my hon. Friend for her explanation, which was very good. I do not have time to go away and think more about it from a legal perspective, because I have only just heard her arguments, but at the moment I absolutely agree.

As for my hon. Friend the Member for Lowestoft, I thank her for her attempt to explain. She has years of experience of working in the field. She tabled that amendment in response to the amendment from my hon. Friend the Member for Penistone and Stocksbridge, with the best of intentions and to strengthen the legislation. I will look at it, and I may even return to it during the debate.

[Danny Kruger]

That was an interesting exchange. I think I agree with the hon. Member for Penistone and Stocksbridge more than I do with the hon. Member for Bradford West, which is an uncomfortable situation for me, but I want to show that I am actually listening. I also agree with the Minister of State, Ministry of Justice, the hon. and learned Member for Finchley and Golders Green, who said last week that, without a statutory meaning, the terms “coercion” and “pressure” have their natural, ordinary meaning, which is well understood by the public and the courts alike.

I have encouraged more clarification and clarity throughout the Committee’s deliberations, and I accept the point made by the hon. Member for Penistone and Stocksbridge and the Minister that we are in a good place in outline in terms of understanding these concepts. However, I agree with the hon. Members for Penistone and Stocksbridge and for Bradford West that it would be helpful to have further clarity from the Ministers. If there is guidance to come, it is important that we proceed with due respect to the points that have been made, including the proposals from the hon. Member for Lowestoft, which I agree with in principle.

However, I want to make the point behind my amendment (a) to amendment 518, tabled by the hon. Member for Penistone and Stocksbridge, even though I understand she will not push it to a vote, so I cannot push mine. She challenged me about the purpose of my amendment, so I want to explain it. There are two places in the Bill where the concepts of coercion and pressure occur: one is in the context of the assessment process for eligibility for assisted death, and the other is in terms of the criminal offence of coercion into an assisted death. Those are two separate areas of the Bill, but they use the same terminology, and the same principle of coercion is behind them both.

The point of my amendment is to make clear the distinction between eligibility and the criminality involved in coercion. Although I entirely agree with the hon. Member for Penistone and Stocksbridge that it is appropriate to retain the principle of intention—to be clear, my amendment would remove the requirement for evidence of intention to coerce, leaving just the fact of coercion in the definition—her point was that it is important to retain evidence of intention in order for the criminal offence to be meaningful. I accept that that is a point in criminal law.

However, it is important that we do not include intention in the context of the assessment of eligibility criteria, for the simple reason that somebody may well be coerced into an assisted death in a way that we would all understand, but the perpetrator may not have had the explicit intention of that outcome. An example would be where an abusive husband, through abuse, victimisation, relentless unkindness and perhaps the direct communication of, “You’d be better off dead,” has the effect of coercing his victim—his wife—into seeking an assisted death, which might well be subject to criminal prosecution on these terms. He would nevertheless be able potentially to claim that that was not his intention, and, indeed, perhaps it was not. He might not have had the explicit thought in his head, “I want to make her apply for an assisted death.” Nevertheless, that is the consequence of his coercive behaviour.

I would hope that when the doctors assessed that particular case and came across evidence of that pattern of abuse, they would conclude that this person was being coerced, and would therefore not award the applicant the green light to proceed. That is an example of where it is important to remove the intention of coercion from the definition. I entirely agree with the hon. Member for Penistone and Stocksbridge about the value and necessity of including intention where we are talking about the criminal offence of inducing somebody to have an assisted death.

Lastly, let us think about this from the point of view of the doctor or panel who are being asked to approve the application. If the definition of coercion includes the intention to coerce, we are inviting—in fact, requiring— the doctor or panel to seek evidence of the intention of the person doing the coercion, rather than just the fact of the patient having been coerced. We would require them somehow to interview the abuser, so I think we would get into difficult territory if we insisted on evidence of coercion in order to deny the application on that basis.

I hope that that helps to explain the purpose behind my amendment. I know it is slightly academic, because we are not proceeding with amendment 518, but I hope the Minister and the hon. Member for Spen Valley reflect on the points made by the hon. Member for Penistone and Stocksbridge and take them on board in subsequent amendments or guidance.

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[Stephen Kinnock]

The Government have been working with my hon. Friend the Member for Spen Valley, and some amendments—including all three in this group—have been mutually agreed by her and the Government with the aim of ensuring the workability of the Bill. I shall provide a brief technical, factual explanation and rationale for the amendments.

Amendment 392 would add the meaning of “first assessment” and “first declaration” to the list of definitions in the interpretation provision in clause 40. The effect of the amendment is to ensure that all references to “first assessment” and “first declaration” throughout the Bill are interpreted consistently.

Amendment 393 would insert the meaning of “second assessment” and “second declaration” to the list of definitions in the interpretation provision in clause 40. The effect of the amendment is to ensure that all references to “second assessment” and “second declaration” throughout the Bill are interpreted consistently.

I turn to amendment 424. Clause 4(3) states:

“Where a person indicates to a registered medical practitioner their wish to seek assistance to end their own life in accordance with this Act, the registered medical practitioner may…conduct a preliminary discussion about the requirements that need to be met for such assistance to be provided.”

Clause 4(4), as amended, sets out that where a practitioner conducts a preliminary discussion, they must explain and discuss certain matters with the person concerned. These are:

“(a) the person’s diagnosis and prognosis;

(b) any treatment available and the likely effect of it;

(c) all appropriate palliative, hospice or other care, including symptom management and psychological support”.

The preliminary discussion may not be conducted in isolation from an explanation of and discussion about these matters. Amendment 424 would add a definition of “preliminary discussion” to the list of definitions in clause 40 to ensure that all references to a “preliminary discussion” in the Bill are interpreted in line with the description of the discussion in clause 4(3).

Amendment 392 agreed to.

Amendments made: 226, in clause 40, page 23, leave out line 37.

The amendment is consequential on Amendment 545.

Amendment 424, in clause 40, page 23, line 37, at end insert—

“‘preliminary discussion’ means a discussion of a kind mentioned in section 4(3);”

This is a drafting change.

Amendment 393, in clause 40, page 24, line 5, at end insert—

“‘second assessment’ has the same meaning as in section 8;

“‘second declaration’ has the same meaning as in section 13;”.—(Kim Leadbeater.)

This is a drafting change.

[Danny Kruger]

I beg to move amendment 527, in clause 40, page 24, line 14, at end insert

“provided that such remuneration is not structured in a manner where it would be greater as a result of the registered medical practitioner approving the request.”

This is the point at which the season of consensus is over; I am back to opposing. Amendment 527 would insist that any remuneration for taking part in assisted dying on behalf of the medical profession would not enable a system whereby a medic, practice or private provider would be remunerated according to approving the different stages of the process. I am trying to prevent the provision of any incentive in the system for moving people through it.

We know that there can be a paid private service delivered under the Bill. The concern is that we will create perverse incentives in the system that will prejudice objective decision making. I take the points about the disinterested good faith of all medics; nevertheless, I do not want to put them in danger of feeling the pressure of perverse incentives. We must recognise the importance of keeping absolute financial neutrality in the operation of the Bill. There would be significant ethical red flags about a system that essentially enabled performance-related pay tied to approving requests for assisted dying, let alone paying doctors to provide referrals to a co-ordinating doctor. At the moment, I do not see that the Bill prevents that.

Even if there were no such danger, I am not sure that patients would buy it. From the point of view of trust in the medical profession, we must bear in mind that any doctor could be involved. Any doctor could either raise the suggestion or be required to signpost a patient who raised it themselves—the whole of the NHS is essentially implicated in the proposed system. As the hon. Member for Spen Valley has reiterated today, she wants assisted dying to be an integral part of the NHS. Let us protect the NHS from the distrust of patients by ensuring that financial incentives are not in the mix for these life and death decisions.

[Dr Opher]

Although I see the hon. Gentleman’s ideas and points, what will be paid for here is the assessment. I know no medical process where the outcome is paid for, rather than the assessment. Although I can see that his concerns are real, I do not believe—

[Danny Kruger]

I am sorry to cut off the hon. Gentleman mid-flow, but he says he cannot think of an instance when the outcome will be paid for. It would perhaps not be about paying for the outcome—paying for death; for a dead body—but there could well be payments for the process leading up to that. That is the way medical payments work at the moment. Someone might get paid for the assessment, the second assessment, or the administration of the drugs. People do get paid in the NHS for delivering a treatment. Why would that not be the case here?

[Dr Opher]

I understand the hon. Gentleman’s concern, but that is just not the way that medicine works. The doctor is under a code of practice, so if he is seen to lie about assessment of capacity or coercion, for example, to enable him to approve the decision and then go on to assist the dying, he would be well outside that code. He would be referred to the General Medical Council and, in such a case, struck off the medical register. I understand the reason for the amendment moved by the hon. Gentleman, but I do not feel that it is necessary in this part of the primary legislation.

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[Kim Leadbeater]

I will not test the patience of the Committee by repeating the comments of my hon. Friends the Members for Sunderland Central and for Stroud and, indeed, of the Minister. I am comfortable that subsection (4) as it stands is perfectly acceptable on the remuneration that a doctor can receive. I will not support the amendment.

[Danny Kruger]

I must conclude from that that the promoter of the Bill, the hon. Member for Spen Valley, and the Minister would be content with an arrangement whereby a doctor was paid more for accepting an application and processing it, and for referring a patient—

[Kim Leadbeater]

Will the hon. Member give way?

[Danny Kruger]

Suddenly the debate is occurring. I am happy to give way.

[Kim Leadbeater]

That absolutely is not what we have said.

[Danny Kruger]

In opposing my amendment, the hon. Member is declaring herself content with the text of the clause as it is. The text as drafted would allow a doctor to be paid more, the more applications that they receive, process and refer on. That might not be, in her mind, how the system should work—I would be grateful to know how the system should work, because it is not in the Bill or in the amendments. We have a very vague arrangement here, whereby a private provider would be enabled to deliver assisted dying—indeed, a profit-making organisation would be able to manage the entire process from beginning to end, even referring a second assessment to another part of their own company.

[Kim Leadbeater]

Will the hon. Member give way?

[Danny Kruger]

In a moment. The potential—as would happen in other parts of genuine healthcare—is that the more work people do, the more money they get. My concern is that that induces a dangerous incentive into the system. Having a global fee paid to a provider who managed the service would be much safer. The crucial point is that we prevent people being paid for approving and enabling assisted deaths, and that is what my amendment would do.

[Jake Richards]

I appreciate the point that the hon. Member is trying to make and I think it is a fair one, but how does he think this could work? As he said in his own intervention, people might have to be paid for one part of the process, and then for the next. If we appreciate the principle that people get paid for time, there is inevitably more money involved as the process goes on, so can he explain how his amendment would work?

[Danny Kruger]

I intend, in a later debate when we come to the new clause, to try to explain how I think we should have done this. The answer to the hon. Gentleman’s question is that an organisation should be resourced—I think through philanthropy, rather than taxpayers’ money or people paying out of their own pocket, but the point stands however we do it—to deliver the assisted dying service, but crucially it should not be paid more per service, treatment or customer. We should not have the concept of customers in this arrangement; there should be a provider who is resourced to deliver this service. The crucial point is that they should not be paid more per client or for progressing people through the system.

[Naz Shah]

That is the exact point I was about to raise. Is another amendment needed to ensure that providers of this service are not given more money if a patient goes through the process than if the process is stopped?

[Danny Kruger]

That is the purpose of my amendment.

[Kim Leadbeater]

The hon. Member is making some interesting points, but they are not related to the point of this amendment, which talks about the doctor being given more money for approving the request. That is not quite the same point that he is making.

[Danny Kruger]

I imagine that a doctor who works for the non-profit service I am envisioning would be paid a salary and do their work, but would not be paid on a per-client basis—they would not be paid a tariff for the number of people they passed through the system, let alone for the different chunks of the process. People need to be paid, but they should not be paid on a per-client basis, because that would introduce dangerous incentives into the system.

[Lewis Atkinson]

The hon. Member is making an interesting point, particularly in relation to the commissioning of the service. In the NHS, we generally commission on a block basis and a fee-per-activity basis. I can entirely see that that block basis would be appropriate for this commission, and I am happy to work with him on Report to make that the case. That is not what this amendment says, though. It talks about payment for individual doctors, which gets into the issue of people being fairly paid for their time, which he referenced. I invite him to collaborate on the commissioning arrangements on Report, rather than pressing this amendment.

[Danny Kruger]

We can distinguish between the organisational income and the specific doctor’s income, but the same applies in both cases. Explicitly, the doctor who is making the decisions should not feel the pressure or the temptation of financial reward to expedite or approve applications for assisted dying. I am grateful for the hon. Gentleman’s invitation. By all means, let us try to make sure that, should the Bill reach Report stage, we remove the danger of perverse incentives in the way that the service is commissioned.

Question put, That the amendment be made.

--- Later in debate ---

Brought up, and read the First time.

[Danny Kruger]

I beg to move, That the clause be read a Second time.

This will be my last speech in this Committee, so before I speak to the important principle expressed in new clause 34, may I thank you, Sir Roger, and all your colleagues who have chaired the Committee? I also thank the Clerks, who have done a huge amount of amazing work behind the scenes, and all members of the Committee; I particularly thank the hon. Member for Spen Valley for her good faith and good nature throughout the process. I have great respect for all Committee members. A particular hero was the hon. Member for Southgate and Wood Green, who was the most popular speaker every day. [Laughter.] I am looking forward to his final speech.

I pay tribute to all those hon. Members who did not serve on the Committee but contributed to our debates by tabling amendments; I really am encouraged by many of them. I pay particular tribute to the hon. Member for York Central, who has been a very powerful influence on me and has attempted to do very good work with the Committee. I also wish to mention my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer). Perhaps in sympathy with the hon. Member for Harrogate and Knaresborough, the most liberal member of the Committee, he has attempted to create an assisted dying Bill that does justice to the principles of autonomy behind it.

My new clause reflects my hon. Friend’s conception of the Bill. His amendments would have taken assisted dying out of the NHS, and indeed out of healthcare altogether. He was right to try to do that. If we are to do this thing, we should recognise that what we are proposing to legalise is not healthcare. Indeed, new clause 36 recognises the essential incompatibility between the service proposed here and healthcare as it is traditionally understood in our country and enshrined in the NHS Act.

More than that, the foundations of healthcare in the west are contravened by the Bill. The Hippocratic oath contains the promise:

“Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course.”

That is the oath that doctors take, and it has been the ethical basis of medical practice in the west for millennia. The Bill would be the final, official abandonment of that ethical tradition.

I implore the Committee to reflect on the essential principle that healthcare is the antidote to sickness, whereas this proposal for assisted suicide is the antidote to life. That is the treatment that the Bill proposes to legalise. It is entirely different from healthcare, in principle and in practice. It is therefore no surprise that so many of the professional bodies involved in healthcare regard this proposed treatment as incompatible with their professions. The BMA agrees that this should be a separate service.

I was struck by a BMJ article that appeared last November, “Reframing assisted dying through the civil law: possibilities and challenges for the UK”, which was written by a group of palliative care professionals. It sets out how, if assisted dying is to be legalised in this country, it might best be organised and delivered. New clause 34 and all that flows from it would enable us to design a better assisted suicide service than the one that the Bill would give us.

The hon. Member for Spen Valley this morning and the hon. Member for Sunderland Central this afternoon asked how it should be done, if we are to do it. My hon. Friend the Member for Reigate offered some suggestions. I will build on what she said by saying how I think the Bill should have been framed—indeed, how I and others, through the amendments we have tabled, have tried to ensure it is framed.

We have tried to match the Bill to the campaign for assisted suicide. Understandably, there is considerable public support for people at the end of their life, who are at risk of suffering a terrible, agonising death and whom palliative care cannot help, to have the right to end their life a few days or weeks early. We can argue about how many people that is. I think the number of people whom palliative care could not help if we organised our palliative care system properly is infinitesimally small—almost non-existent. However, we disagree on that, so let us assume that there are some people who will fall into that category. The campaign for this Bill is the campaign for those people to have the right to an assisted death, but that is not what we have in the Bill. What we have is a right for anybody who in the opinion of two doctors might reasonably be expected to die within six months to request and receive lethal drugs, all paid for and assisted by the NHS. That is not what the campaign has been for.

Let me suggest how, if we are to be honest to the campaign, we should design this thing: not as healthcare, but as a compassionate suicide service for people facing physical agony at the very end of their life. As we tried to ensure at the beginning of our deliberations, eligibility would be for people fearing pain, not for those feeling a burden. There would be a proper capacity test, not the Mental Capacity Act 2005 test. There would be proper, meaningful safeguards against coercion. We would have doctors and a multidisciplinary team at the right stage of the process: right at the beginning, at the first assessment. We would have all the appropriate signposting and palliative care provision as an alternative to assisted suicide. We would then have a proper judicial process to decide whether to approve the application.

As for provision, from assessment through to the final act it should not be in the NHS. It should not be provided by any profit-making providers advertising their services and receiving money for every death that they assist, which is what we have probably got with the Bill. It should be provided by non-profit organisations, should be tightly regulated and should be funded not through NHS commissioning or by the patients, but by philanthropy.

The scale of all this is to be discovered, I guess, if we pursue the Bill. It has been suggested that the lower end of the expectation is about 6,000 deaths per year. On the calculations made by the experts in the paper I cited, it would need a budget of about £10 million a year to manage a 6,000-person caseload. That is in the ballpark of what the campaign groups promoting the Bill have been spending, so I do not think that there would be any difficulty in raising that sort of money if it is what people want. After all, hospices have to raise millions of pounds every year to fund their work. I do not see why assisted dying services should not be able, and required, to do the same thing.

There was a way to do this more consistently with the campaign for assisted suicide. For the avoidance of doubt, I would have opposed that too, because even that much more honest and tightly circumscribed service would profoundly alter our society—it would send the signal that some people are better off dead, and I think it would be wrong for our country—but at least it would be honest. It would be consistent with the campaign.

I will end with the observation that what I have just described is what I think the public think the Committee is doing: designing a service like that for the small number of people at the very end of their life who are facing a terrible physical death. That is not what we have done, it is not what the Committee has approved, it is not what the original Bill said and it is not what the Bill now says as we send it back to the House. I hope that the public and our colleagues in Parliament will recognise that this Bill is not the one that they thought they were getting.

[Rebecca Paul]

I rise to support new clause 34, which clarifies that assisted dying is not a medical treatment—not only because of the principle behind it, which I have talked a lot about already, but because of the unintended results. We need to recognise that many laws, rules and regulations have been written using the word “treatment” that never envisaged assisted dying being included. Every bit of law that refers to when treatment can be given, with or even without consent, such as section 63 of the Mental Health Act 1983, will become a potential problem if assisted dying is technically viewed as a medical treatment. New clause 34 is therefore essential to protect the meaning and integrity of the current law and to protect patients in future.

In written evidence, Professor David Jones points out that there are dangerous consequences to classifying death as a medical treatment. As a general principle, he observes:

“If an effective medical treatment cannot be self-administered orally then other routes should be considered, including those administered by a healthcare professional.”

We can immediately see the problem that will arise if assisted dying is a treatment. The view that such a treatment can be administered by a healthcare professional suddenly moves us into euthanasia territory, which is clearly not the intention of the Bill. Professor Jones goes on to say:

“If a treatment effectively reduces distressing symptoms in one category of patient (adults at the end of life), then it should be considered for treating other categories of patient”.

If we substitute the word “treatment” with “assisted dying”, we get a wholly unacceptable approach that could open the way to offering assisted dying to under-18s, as in Belgium, or to people whose psychological suffering is unbearable, as we have seen in Belgium and the Netherlands with the euthanasia of people with mental health conditions. Finally, Professor Jones says:

“Where a patient does not have capacity to consent to medical treatment then doctors should provide whatever treatment is ‘of overall benefit’ to the patient.”

If we substitute the same words, we can see that once again it leaves us with a big issue.

The Bill already has requirements relating to capacity, age and physical illness, and a requirement for self-administration, but the point is that by classifying assisted dying as a medical treatment we are making those requirements less stable and introducing the potential for conflict within the existing law. We are inviting future Parliaments to question why they are there in the first place. Why arbitrarily restrict this medical treatment when we do not restrict other treatments in the same way?

If we do not rule out assisted dying as a medical treatment, we are potentially opening the Bill up for challenge by the courts when assisted dying treatment is limited to certain groups. That is one reason why the Association for Palliative Medicine has explicitly backed the principle represented in the new clause. It has said in written evidence that defining death as treatment would be

“contrary to all prior medical practice and public expectation, and laden with risks of unintended consequences.”

The Bill may look set in stone, but the law can easily be amended in future, for instance by amending a major health Bill. What we decide in this Committee could have major consequences in a few years’ time. I urge that we future-proof the Bill now by explicitly declaring in it that assisted dying is not a medical treatment, so that the issues I have set out will not arise at any point.

--- Later in debate ---

[The Chair]

The hon. Member for Spen Valley is entitled to respond if she so chooses, but I think she has sat down.

[Danny Kruger]

I will press new clause 34 to a vote.

Question put, That the clause be read a Second time.