Terminally Ill Adults (End of Life) Bill (Fifth sitting)

Danny Kruger Excerpts

Committee stage
Wednesday 29th January 2025 Public Bill Committees

[Kit Malthouse]

Q We have heard from earlier witnesses, particularly from other jurisdictions, that training is the key. Is it therefore your view that in guidelines, for example, specific training in this area could be effective?

Richard Robinson: We take calls from professionals all the time, and we give training all the time. Safeguarding older people requires specialist training—it is a specialist issue—and although it may not be a solution, it is certainly on the pathway. We would also like to see refresher training built in. Any kind of amendment that includes training—not just on the medical side, but for anyone involved in decision making, like the judiciary—would be a real step forward.

[Danny Kruger (East Wiltshire) (Con)]

Are we asking one question each, Mr Dowd, or may I ask two if I am quick?

[The Chair]

If you are quick.

[Danny Kruger]

Q Professor House, in Oregon, which partly inspired this Bill, I understand that there is an expectation—in fact, a requirement—that there be a psychological assessment if the assessing doctor thinks that a mental health condition, depression or other issue might be present. Do you think that that would be appropriate? Do you think that it would be a helpful safeguard to insist on a psychological evaluation?

Professor House: I do, although I do not think it is enough. Perhaps I could say a little about assessment more generally, and where that fits in.

With my background, I am familiar with meeting people who have a severe and life-limiting physical illness and say that they want to end their life. In the assessment, the starting point is trying to understand why. That can mean circumstances—external factors. Some of those have been aired during the public debate about all this. They include things like limitation of available resources, symptom control, poor housing and financial insecurity. There is also the question of the baleful influence of third parties. There are then the internal factors that we could call something like state of mind—feelings of personal worthlessness or burdensomeness, loneliness and isolation.

When we put those two together, that is what people mean when they talk about psychosocial assessment: “psycho”, the inner state, and “social”, the external circumstances. Part of it is psychological. These ideas of burdensomeness and worthlessness, for example, come very often with low mood—indeed, chronic physical pain is often exacerbated by the presence of low mood—so you would certainly wish to have a psychological component to the assessment. It goes rather beyond identifying and diagnosing mental illness, as I hope is clear from what I have said about the sorts of psychological factors you would be looking for. Does that answer your question?

[Danny Kruger]

Yes, thank you. So we need it anyway: in all cases, there should be a psychological assessment as part of the process.

Professor House: As part of the assessment, yes.

[Danny Kruger]

Q Mr Robinson, I want to come back to the question of coercion. We heard from advocates of assisted dying laws elsewhere that there is hardly any evidence of cases of coercion in this service overseas, and yet you are reporting—and we absolutely believe you, because we see evidence of it—that there is a chronic problem of elder abuse in our country. Presumably there is in every country. How do we square this? Is it that elder abuse does not apply in the context of assisted suicide in other jurisdictions, or is it just not being picked up?

Richard Robinson: I think there is a fundamental misunderstanding around what the abuse of older people is, and that has been borne out by a number of research papers that we have written, some working with YouGov, for example. Likewise, as I said, it is also a question of understanding what coercion is and getting the older person to open up, to help them to understand and to trust the person they are talking to.

We fully believe that there is nowhere near enough training and understanding across the medical profession and the judiciary around understanding the signs of abuse or coercion. Even though we completely welcome the new law on coercive control in the Domestic Abuse Act 2021, we have not seen a significant change. If anything, we as a charity believe that there is an epidemic of abuse against older people at the moment. Some of it is due to the economic climate that we are in, with people just wanting to have their inheritance now, and some of it is due to the fact that older people feel like a burden. You mentioned Oregon: of course, there is also the statistic that 48% of people who went down the assisted dying route in Oregon cited being a burden as part of their decision-making process.

I think that the abuse of older people in this country is vastly underplayed. I have mentioned the 75,000 impacts that we see and the 2.6 million people affected by it, but we have to fight for headlines and for understanding in every sector of society. It is seen as a minority issue, and it is really not. It is not a niche issue, and it is growing.

That does not mean that we as a charity are against the assisted dying Bill. If anything, we are pushing towards a safer ageing society. We would like to see a safer ageing society by 2050, and we believe that older people as a demographic should have an independent choice of what they want to do. That fits within our safer ageing society viewpoint. However, safeguarding is at the very heart of this. Until society can take the safeguarding of older people more seriously and look at training around abuse in the same way as with other forms of abuse and neglect, there is a much broader question to be asked.

[Sarah Olney (Richmond Park) (LD)]

Q Professor House, concerns have been expressed in written evidence that an assisted dying Bill of this sort is incompatible with wider policy around reducing suicide or suicide prevention measures. Do you think that it is possible to implement effective policies to reduce suicide rates, while having an assisted dying Bill at the same time?

Professor House: It is a challenging question, isn’t it? A lot of it is based on interpretation of far-from-definitive evidence. A starter would be to observe that we would have to change our national suicide prevention strategy, because at the moment it includes identifying suicidal thoughts in people with severe physical illness as something that merits intervention, and the intervention is not an intervention to help people proceed to suicide. So the answer to your question, to some extent, is “Yes, it is going to change our approach to suicide prevention.”

The wider question is whether it will change both the medical approach and society’s approach to suicide prevention in general if we start saying, “We don’t like suicide and we want to do something about it, except in some groups of people.” You may know that Professor Louis Appleby in Manchester, who leads the national confidential inquiry into suicide, is concerned about that. The best I can say on the international evidence is that there is no evidence that introducing this sort of legislation reduces what we might call unassisted suicides.

--- Later in debate ---

[Dr Tidball]

Q With respect, my question was about whether you think that, should the Bill go through Parliament, there should be some kind of body, possibly an advisory council, that disabled people in particular should be involved with. Your other point speaks to some evidence that we heard yesterday and earlier about the anchoring, where there is assisted dying in the legal system, of the quality and level of provision of palliative care. I would be grateful if you could speak to the point of my original question, which was about the need for some kind of advisory body that includes disabled people, should the Bill pass.

Baroness Falkner: Had there been a Public Bill consultation on the Bill, you would have heard from the different players that need to be consulted. We do not have an opinion on the kind of advisory body, because we would find it difficult to see where it would fit in with the provisions of this particular Bill, but a public consultation in advance of the Bill being written would have been the way to deal with that.

[Danny Kruger]

Q Dr Graham, on the points about article 14, I very much appreciate and welcome your belief in parliamentary sovereignty, and the suggestion that the courts should listen to Parliament—most of us agree with you on that—but it is a big hope. They do have the opportunity, and have demonstrated their power, to object to statute on the basis of the ECHR. As you said, they could allow assisted dying, and indeed discrimination within an assisted dying law, if there was some justification for it.

You are presumably aware of Lord Neuberger’s judgment in the Nicklinson case. He said that there was

“significantly more justification in assisting people to die”

who have long-term chronic conditions and are going to suffer for years than for people who are on the verge of death. I also point out Lord Bingham’s judgment in the Pretty case, which suggested there would be discrimination against people who are unable to perform the final act themselves. Surely, then, there is a very strong case to be made under the ECHR that the Bill would be discriminatory. I would value your response on that, and maybe from Lord Sumption too, if he wants to come in.

My second question is to you both, on article 2. If it were to be allowed, the safeguards that would be required —I shall quote from the Mortier case, which you know well—would be that

“medical professionals are complying with the free, informed, explicit and unambiguous decision of their patients”

without pressure and abuse. Do you therefore accept that this comes down not just to the safeguards in theory, but to how they actually operate in practice? We have heard very serious concerns on that front. Are you confident that the courts would allow this? That is, of course, assuming this is an NHS service, because it could be that they decide it should not be.

Dr Graham: The takeaway message from cases like Nicklinson and others, both at the domestic level and the European level, is that this is a decision for politicians and a decision for Parliament—you mentioned the sovereignty of Parliament—regardless of what Lord Bingham and Lord Neuberger might think personally about or, I suppose, obiter about the relationship between discrimination law and the provisions that were looked at in those cases. For the reasons that I set out earlier, on the justification question, judges in our jurisdiction are heavily deferential towards the decision of our elected Parliament. In any future challenge, and there probably will be a challenge—we do not know, but there is nothing to stop someone from bringing one—the courts will adopt the same line of thinking.

I agree with you completely that the theory and the practice must both be taken into account when assessing whether there are adequate safeguards for the purpose of article 2. All I want to note is that in the Mortier case, which you mentioned—in which the Belgian legislation and its compatibility with article 2 were challenged before the Strasbourg Court—the Court found that there were sufficient safeguards in that legislation. That is despite the fact that if we put the Belgian legislation that the Court was looking at and this piece of legislation side by side, this legislation contains, at least in theory, more and stronger safeguards.

The Belgian legislation did not have a waiting period; did not require judicial approval; was not restricted to a terminal illness; and was not restricted to adults only. Yet the European Court said that there were sufficient safeguards for the purposes of article 2. At least from a precedent-based perspective, I think there is a strong argument for saying yes, the Bill complies with both article 14 and with article 2.

Lord Sumption: I have read Dr Graham’s evidence, and obviously have listened to him this afternoon. I agree with it in its entirety. Dr Graham points out the additional layer of safeguarding in the form of clause 12, but I do not understand him to be suggesting that without clause 12 the Act, if the Bill became an Act, would be defective on human rights grounds.

I also agree with Dr Graham on the question of the likely approach of the courts. The courts would be dealing with legislation that reflected a balance between two very powerful but contradictory moral instincts, both of them fundamental to our legal and social culture. That is not a context in which the courts are going to feel that they ought to be putting their own oar in.

I would also point out that, since the Nicklinson case, there have been a number of decisions of the Supreme Court—two in particular: the Shamima Begum case and the Child Poverty Action Group case on the two-child limit—in which the Supreme Court has expressly said that in issues of this kind, the courts should not devise policies of their own, independent of policies that can be discerned in parliamentary legislation. It is therefore even less likely now that the courts would intervene on human rights grounds than it was at the time of Nicklinson.

[Tom Gordon]

Q My questions are to Dr Graham and Lord Sumption. The Bill, in its current form, has several opportunities for confirming capacity and whether the people who want to take up assisted dying have the capacity to do so; there are a number of safeguards and steps within it. That is more than is typically required for any other end-of-life decisions. I wondered whether you would comment on that. Is the Bill safe enough in its current form? If not, what other steps could be added?

Dr Graham: The only thing I would feel comfortable saying is that, yes, I agree with you that the Bill does contain further safeguards, more safeguards, than some of the other legislation in European countries. The legislation in those countries has been held to be compatible with the right to life and with other rights under the European convention. From a pure human rights perspective, which is all I feel qualified to comment on, I think you are on very safe ground.

Lord Sumption: I take exactly the same view. We must all be conscious of the fact that coercion, even when it is overtly applied, is extraordinarily difficult to detect: the kind that Baroness Falkner described a few moments ago as the subtle pressures that old and disabled people—in fact, people who are very sick generally—will feel without the need for any pressure. That spontaneous feeling of pressure is, I would have thought, practically impossible to detect. We have to live with the limitations of what human beings can do. In the end, I have come down in favour of the principle behind the Bill, but I regard it as an extremely difficult balance to draw—notably, for that reason.

--- Later in debate ---

[The Chair]

This will be the last question for today.

[Danny Kruger]

Q Okay, very quickly, from what we have heard from you today, it is clear that the interface of assisted suicide, palliative care and NHS care generally in social care and hospices is really problematic and complicated. If we are going to do this, should we not just take it out of healthcare altogether? Would you not feel safer and happier if this was something done in independent clinics and not part of hospice care or the NHS, so that GPs would not have to recommend it?

Toby Porter: There are certainly many people on hospice boards and in hospice leadership and medical teams who will find it very overwhelming to deal with the complexity of exactly how they position themselves and their service. They would be balancing obligations towards a community who might be in favour with the duty of care towards a clinical workforce who might be against, because of the risks that I spelled out. Obviously one choice facing members is that you remove it from the health and care system, and therefore those operational dilemmas are removed from individual institutions. Then the onus is on you to define how a service that would sit outside the national health system would operate.

But I think it is important to counter that by saying that hospices evolved out of the community. They exist because communities wanted better deaths. In the end, it is the job of institutions to evolve to fit the values and laws of society as they evolve, rather than vice versa. If, as Professor Whitty said yesterday, it is the will of society, expressed through yourselves, that this change takes place and is delivered as part of the health and social care system, then I have no doubt that the wonderful resources that exist in the governance and staffing of the hospice sector will be deployed to find a way that tries to mitigate those risks and do their best for their supporters, and in particular patients and staff.

[The Chair]

That brings us to the end of the time allotted for the Committee to ask questions. I would like to thank our witnesses on behalf of the Committee for their evidence. Witnesses can, if they want, follow up in writing. We are more than happy to hear anything else they have to say.

Ordered, That further consideration be now adjourned. —(Kit Malthouse.)