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

Danny Kruger Excerpts

Committee stage
Wednesday 26th February 2025 Public Bill Committees

[Dr Opher]

Well, that was disputed by other psychiatrists. We are asking questions about whether the Mental Capacity Act is safe and correct for the Bill. This whole Committee is about making the Bill safe. None of us would dispute that. However, I think that if we accept the amendment, the Bill will become less safe because the amendment would change a massive piece of legislation and therefore have a number of repercussions that we do not understand.

[Danny Kruger (East Wiltshire) (Con)]

Chris Whitty made the same point that the hon. Gentleman has just made: that there would be knock-on effects and that the Mental Capacity Act works very well currently. Does the hon. Gentleman acknowledge that Chris Whitty himself misrepresented the Mental Capacity Act in the evidence he gave to the Committee? He had to write to us subsequently to clarify his comment, and his clarification contradicted the hon. Gentleman’s implication that the Mental Capacity Act has different thresholds for different levels of decision. Does the hon. Gentleman acknowledge that it does not? The Act has one threshold: capacity as it defines it. Some doctors may have longer conversations than others depending on the severity of the case, but the threshold is the same—Chris Whitty misrepresented it.

[Dr Opher]

I agree that the threshold is the same: does the patient have capacity or not? That is the single threshold. We often do mental capacity assessments for inheritance, control of bank accounts and that sort of thing; sometimes we do a very quick mental capacity assessment about the refusal of treatment. How long we take depends on how important the decision is. I suggest that a doctor assessing someone’s capacity to make a decision to end their life would have a serious, long discussion—up to 90 minutes, or possibly even two hours—to make sure that the doctor is convinced that the patient has capacity. The threshold is the same—it is about whether they have capacity—but that does not mean that the conversation is the same. In clinical terms, it is very clear that a conversation on those grounds would be much more involved than, for example, whether a person sees a dentist or not, or other conversations like that.

I totally understand the concerns that the amendment has been tabled to cover; however, my main point is that if we accept the amendment, it will make the Bill less safe. The reason for that is that, as I have said before, if we change something that is well used, and repeatedly used, it will make the interpretation much more complicated. We will have to re-train all the doctors and, I think, it will not protect patients.

--- Later in debate ---

[Rebecca Paul (Reigate) (Con)]

I rise to speak to my amendment 398. I recognise that much debate about capacity has already taken place, so I will do my best not to be too repetitive, but it is an important topic and I want to cover a few things.

Fundamentally, I consider the bar for the capacity to make a decision to seek an assisted death to be far too low if, as we have already discussed, the approach currently proposed in the Bill is adopted. The Committee has received powerful written evidence that the Mental Capacity Act, as it stands, is not suitable for assisted dying. The Royal College of Psychiatrists says in its written evidence:

“It is the RCPsych’s view that the MCA is not sufficient for the purposes of this Bill.”

The former president of the Royal College of Psychiatrists, Baroness Hollins, says:

“The Mental Capacity Act has proved very difficult to implement and doctors have not been found to be good judges of capacity.”

The eating disorders expert Chelsea Roff says:

“The MCA is not fit for purpose for determinations of capacity in life-ending decisions.”

I do not think it is contentious to say that there should be a higher standard for ending one’s own life than for other courses of action. Baroness Hale has called the Mental Capacity Act threshold “not a demanding one.” The Royal College of Psychiatrists says in its written evidence:

“While we are of the view that a person’s capacity to decide treatment can be reliably assessed, an assessment of a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding.”

Even if the Mental Capacity Act is working well in some other contexts, it does not necessarily translate well to assisted dying. Professor Gareth Owen told the Committee in oral evidence that although the Mental Capacity Act is quite reliable in current practice,

“in areas of decision making where the decision itself is unsettled or conceptually much more profound or novel—I would suggest that the decision to end one’s own life has those characteristics—you cannot expect there to be such levels of reliability.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 239, Q303.]

The Mental Capacity Act definition of capacity was not created with such a monumental decision with respect to assisted dying in mind. Although I note Chris Whitty’s recommendation that it is the starting point, I do not think it can be the end point. Further provisions are needed to ensure that it is fit for purpose, given the significance of the decision being made. Professor Owen said:

“I have looked at mental capacity a lot in research, and there is no experience of the decision to end one’s own life. It is outside the experience of the Mental Capacity Act, the Court of Protection, the associated research and practitioners on the ground. The reference to the Mental Capacity Act in clause 3 puts you into an area where there is no experience of the central capacity question under consideration. It is very important that Parliament be clear-eyed about that.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q287.]

Dr Sarah Hooper, a retired oncologist, says that

“the patient in question may undoubtedly have ‘capacity’ for most important decisions. However, in the early days after a cancer diagnosis their ability to make clear judgements is nevertheless likely to be impacted. This kind of decision (for assisted suicide), once acted upon, is plainly irreversible. It is a very bad time to make that kind of decision.”

It is true that the Mental Capacity Act is used for decisions to stop life-sustaining treatment, but, as Professor Owen said, we should not simply equate that with assisted dying. As he pointed out:

“One is a refusal; one is a request. One is traditionally considered to be about bodily integrity—it is the so-called shield of the person, or the patient, against the intervention on the body that is being made by the medical profession. You are giving the patient an important right, which is a shield-like right. That contrasts with a request for assisted dying, which is a request. You are involving other people in an act that is an act of ending one’s life. That is not something that the medical profession has been comfortable with, going back thousands of years.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 236, Q288.]

I also draw attention to a great deal of written evidence making the point that the current Mental Capacity Act is not as well understood by medical practitioners as we hope or expect. Alexander Elphinston, a retired solicitor, says,

“from my experience doctors and other medical practitioners often applied the test of mental (in)capacity incorrectly.”

Victoria Wheatley, a palliative medicine consultant, says,

“I have observed a tendency to overestimate a person’s mental capacity in the absence of obvious features to the contrary.”

Alan Thomas, a professor of old age psychiatry at Newcastle University, says:

“The preferences of the assessor bias the capacity decision towards the assessor’s preference.”

I will move on to the specific issues with the current definition of people who lack capacity under the Mental Capacity Act when applied to assisted dying, all of which my amendment 398 attempts to address. Part of my amendment does exactly the same as amendment 322, tabled and already eloquently spoken to by the hon. Member for Bexleyheath and Crayford, so I will be brief on those overlapping bits.

Under the Mental Capacity Act, there is a starting presumption of capacity. That is too lax a standard, as the Royal College of Psychiatrists says in written evidence. I quote:

“The presumption of capacity may be problematic in the context”

of assisted dying, given that the consequence would be the person’s death. This is literally a matter of life and death, and the presumption of capacity must not apply; the work must be done to assess capacity properly and thoroughly. Professor Preston said during the evidence session:

“I think the aim is to have that bit of extra concern, so that we do not presume capacity, but instead almost presume that there is not capacity.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 241, Q307.]

I think those are wise words, and my amendment and amendment 322 seek to give that protection.

Both amendments also disapply section 1(3) of the Mental Capacity Act on helping a person to make a decision. The hon. Member for Bexleyheath and Crayford has already made his point powerfully about that, so I will not add anything further.

There are some differences where my amendment 398 goes further than amendment 322. First, given the uniqueness and irreversibility of the decision, there should also be a higher threshold of probability. As it stands, a person should be treated as having capacity if that is more likely than not, which is sometimes referred to as the “51% sure” approach. It would be much safer if doctors and judges had to establish beyond reasonable doubt that an applicant has capacity, given the significance of the decision. In my view, 51% sure is just not good enough for such a monumental decision, and amending this part of the Bill would ensure a more rigorous and comprehensive assessment.

Secondly—for me, this is one of the biggest issues with the current approach—the Mental Capacity Act requires an impairment of, or a disturbance to, the mind or brain for someone to be considered not to have capacity, irrespective of whether they can make a decision. Under the Bill currently, even if someone cannot understand, retain or use the information to make a decision—they cannot communicate that decision—they will still be deemed capacitous in the absence of an impairment, or a disturbance, of the mind or brain. In the real world, a doctor could assess a patient who gives the impression of being confused, illogical, erratic or inconsistent—everything about them could scream that they are not in a good place to make the decision—but they will still be considered to have capacity if there is no identifiable impairment of, or disturbance in, the function of the mind or brain at that point in time. That potentially puts those with depression, anxiety, learning disabilities or eating disorders, or even those in physical pain, in danger of being considered capacitous.

In oral evidence, Professor Alex Ruck Keene said,

“If I doubt that you have capacity to make the decision to take your own life, or end your life, but I cannot prove it, is it logical or are we required to proceed on the basis that you do?...In other words, I think you cannot understand the information, but I cannot prove the reason that you cannot understand it is that you have an impairment or disturbance.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 90, Q120.]

According to his written evidence to the Committee, this means that someone could be approved for assisted dying even if they did not understand the relevant information, as long as they do not have an identifiable impairment of, or disturbance in, the mind or brain. He wrote,

“the Committee may well feel that it would be problematic that such a person should be considered to be eligible for the receipt of assistance in dying.”

In a letter to the hon. Member for Richmond Park, Professor Alex Ruck Keene KC said,

“no matter how intensive the scrutiny of the person’s capacity, this would not address the issue of the situation where the person appears not to be able to understand, retain, use and weigh the relevant information but that is not caused by an impairment of, or disturbance in, the functioning of their mind or brain.”

That is why my amendment seeks to remove this diagnostic element, so that section 2(1) of the Mental Capacity Act for the purposes of this Bill only would read as,

“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter.”

That would provide better protections for this life and death decision, and I hope it addresses the issue raised so powerfully by Professor Alex Ruck Keene KC.

As I close, I would like to make reference to amendment 49, tabled by my hon. Friend the Member for Runnymede and Weybridge, which sets out starkly the deficiencies of the current capacity test if it remains unamended for the purposes of this Bill. If autonomy is what counts, and we are using the Mental Capacity Act as gatekeeper for assisted death, then the Bill in its current form means that: a person is assumed to have a capacity as a starting point; a clinician only needs to be just over 50% sure that a person has capacity; unwise decision making is not taken into account in determining capacity; and supported decision making is acceptable—for example, for those with learning disabilities.

I ask the Committee members whether they are comfortable with that. If not, then as a minimum, amendment 322 should be accepted, but ideally my amendment 398 should also be, as it goes even further to increase the threshold for capacity and it addresses the significant issue with the diagnostic leg of the test. I am pleased to say that Baroness Finlay, who established and chaired the National Mental Capacity Forum, supports my amendment. Unlike the current drafting of the Bill, my amendment requires that a person is not assumed to have capacity in the first instance. It requires capacity to be proven beyond reasonable doubt, that unwise decision making is considered in assessing, and that a person is not helped to make a decision. I hope the Committee will support it.

[Danny Kruger]

I am pleased to follow my hon. Friend the Member for Reigate, who set out with incredible clarity the challenges here and the opportunity we have to build on the Mental Capacity Act, and to fulfil its purposes and the purposes of the Bill to ensure that capacity is properly assessed. I will speak to all the amendments in the group very briefly; I certainly will not repeat material points that have been made already. To clarify, I do not propose to push amendment 49 in the name of my hon. Friend the Member for Runnymede and Weybridge to a vote, although I will speak to it briefly. I hope we will vote on the other amendments.

--- Later in debate ---

[Dr Opher]

On tightening capacity assessments, which is what the amendment is trying to do, I would point out that there are a number of amendments coming up that would mandate training for doctors who are registered to assess capacity—for example, amendment 186. In addition, amendment 6 would mandate psychiatric referral if there was any doubt of capacity. Does that not satisfy the hon. Member?

[Danny Kruger]

It pleases me but it does not satisfy me. I am encouraged by it, but I am not fully satisfied. Obviously, it is insufficient. The hon. Gentleman and the hon. Member for Spen Valley put great faith in the training that we are going to introduce. Well, I hope they are right. Let us certainly do as much training as we can— likewise, let us get as much data as we can—but the provision set out is not sufficient, not least because the training will be in the application of the Mental Capacity Act, which we are saying, even if properly applied, has all sorts of problems with it, as my hon. Friend the Member for Reigate explained.

Yes to training and yes to the option of the referral—that should be mandatory, and I think there is a proposal to effect that. Every additional safeguard is welcome. It goes back to my point about whether we are being thorough or simplistic. I am not sure. If I think there are four assessments, but the hon. Member for Stroud thinks there are eight, does that not fail Chris Whitty’s test of being simple? If eight is in fact thorough, would nine not be even more thorough? The suggestion that we have hit it at the perfect sweet spot and that to veer one side is to introduce all sorts of bureaucratic hurdles seems unrealistic. Surely we can apply a little more rigour to this exercise.

[Lewis Atkinson]

I know that we have interacted before about our fundamental difference on the ventilator test: someone saying, “I want to die, please turn off my ventilator” as opposed to, “I want to die, please let me take this substance.” Although we may have a fundamental disagreement on whether those things are the same or different, if he still thinks it is appropriate for the Mental Capacity Act to be used as a one-off test, with no other safeguards, for turning off a ventilator, then why is it appropriate in that situation but not when tested multiple times in this instance?

[Danny Kruger]

I recognise that this is a vital point; I am not surprised that we keep returning to this important distinction. I do think that there is a vital distinction between accepting treatment and declining a treatment. In fact, the treatment proposed here is not a treatment at all—the British Medical Association specifies that it is not a medical treatment. The termination of life deliberately does not apply to a particular condition, whereas a ventilator, or any treatment that one might decline or withdraw, is specific to a particular condition or illness. There is a difference in purpose, even if the effect—which is death—is the same.

To the hon. Member’s point on whether the MCA is appropriate in cases of withdrawal of treatment; well, there we do seem to have a substantial body of clinical practice over many years, to which I am not aware of many objections. My non-expert view is that it is probably appropriate to continue with the MCA in those cases. I do not have an objection there and I am certainly not making that argument. It may well be that it is appropriate, and I am sure we will constantly review the applicability of that particular test in those circumstances. It might well be that some of the problems that I am identifying with the proposed law may also apply in cases of withdrawal of treatment—but I am not aware of that, because I do think they are substantially different. Even if it were perfectly acceptable to apply the MCA in cases of withdrawal of treatment, that does not mean it is appropriate in this case, because they are fundamentally different scenarios. I do not detect that I have satisfied the hon. Member, but it is always good to have the exchange.

I will conclude my challenge to the suggestion that the MCA is universally understood and properly applied. The Court of Protection case of Patricia, a patient with anorexia nervosa, has been referred to a number of times in the course of our debate. We heard evidence from a group of anorexia sufferers who wrote to the Committee to say:

“The judge in the Court of Protection case of Patricia…stated that he had changed his mind several times while considering the evidence. He then came to a different view on capacity from the treatment team. This single case exemplifies how complex the processes described under Clauses 7, 8 and 12 of the Bill in relation to assessment of capacity are likely to be”.

We are not talking about a straightforward process. It is clear from all the evidence we have had that there is a real problem with the way that the MCA would apply.

I want to make a rather obvious point, which is that when the MCA was debated and passed 20 years ago, assisted dying, or assisted suicide, was not on the table; it was not part of those considerations, as far as I am aware. It turns out that Dignity in Dying was on the case back in those days, although I think it was still called the Voluntary Euthanasia Society then. That group was conscious of what would come—I do not think that others were—and I detect that it is quite pleased now with the influence applied then to ensure that the presumption of capacity would be very useful one day when it came to passing an assisted dying law. It was not the intention of the House of Commons or of the Committee that considered that Bill that in fact they were establishing a test that would be applied in the case of assisting suicide and changing the terms of the Suicide Act. I am sure that if that had been the case, it would have been commented on, and I daresay the Mental Capacity Act would not be in its current form, or there would have been some addendum to that effect.

My hon. Friend the Member for Reigate referred to the very powerful evidence from lawyers, Baroness Hale and the Royal College of Psychiatrists about the challenge here. I want to quickly say, in support of amendment 322 in the name of the hon. Member for Bexleyheath and Crayford, that my hon. Friend the Member for Reigate made a powerful argument about impairment; it is striking that the MCA only applies when there are cases of impairment of, or disturbance in, the functioning of the mind or brain—I will not repeat the point she made, but I urge Members to reflect on it.

I will quote Ruth Hughes, a barrister specialising in mental capacity law and inheritance. This refers back to the point that my hon. Friend the Member for Reigate and I discussed in an earlier sitting about the clear opportunity that the Bill affords people to seek an assisted death for the sole purpose of saving their family money. Ruth Hughes says:

“If the…Bill is passed, then this will lead to some of the most vulnerable people dying for others’ financial gain. That is certain…Although in general I would, of course, accept the importance of the presumption of capacity, in relation to assisted dying, I consider that, the burden of proof for capacity should be reversed so that it is necessary to establish capacity to decide to die positively.”

Amendment 322 is tabled for that very obvious reason: there is a clear financial advantage for family members, and, I am afraid to say, there are many other distressing motivations that people might have that are not intended by the Bill’s promoter, the hon. Member for Spen Valley. It feels absolutely appropriate that we reverse the burden and have a much higher test of eligibility than that afforded by the Mental Capacity Act.

I want to make another point, although I do not know how hon. Members will feel about it because a lot of people do not accept that we are talking about suicide, even though it is in the terms in the Bill that we are amending the Suicide Act. The assumption of capacity in somebody taking their own life is what is proposed if we adopt clause 3: we are proposing that somebody has capacity if they end their own life. That implies directly that somebody who is standing on a window ledge or a bridge, about to commit suicide, is assumed to have capacity and to be making a rational decision, which other people should support. I say that directly, because there is a direct read-across with the whole topic of suicide prevention, which obviously we all strongly believe in. How can we say that somebody who is about to take their own life, unassisted, does not have capacity and is not making a settled and informed wish? In which case, why should we stop them or try to wrestle them back from the edge?

[Tom Gordon (Harrogate and Knaresborough) (LD)]

When people are in what is often termed a “crisis”, that would indicate that they are not in a situation where they have capacity. I do not see how the hon. Gentleman can think that it is reasonable to make a comparison between these two things; they are entirely different, and I am sure everyone here would broadly agree with that—I think, on this one, he is sort of on his own. Would the hon. Gentleman be able to offer any further insight into why he thinks that two wildly different situations are analogous—one is in a medical context where people have all the safeguards, and that layer of security and checking, and the other is someone who might be doing something in a moment of desperation?

[Danny Kruger]

The connection is explicitly in terms of the Bill. The Bill disapplies section 2 of the Suicide Act, which makes it illegal to assist somebody to commit suicide. It says that that section no longer applies. This Bill assists people to take their own life—I will not use the word “suicide” if people do not like it. There are other eligibility criteria: I totally acknowledge the hon. Member for Harrogate and Knaresborough pointing out that someone has to have a diagnosis of terminal illness, but that is not the point I am making. I am making the point that, under clause 3, we are saying that somebody who wants to take their own life has capacity, according to the very low bar of having a settled and informed wish. We are assuming capacity in the person who wants to end their own life. I suggest that that presents a real challenge to our national suicide prevention strategy—I will leave that point there, but I welcome any challenges to it.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

I question whether the hon. Gentleman is making a false equivalence here in the very title of this Bill relating to terminally ill adults.

[Danny Kruger]

There are huge challenges around the definition of terminal illness, as we have already acknowledged—but if the right hon. Lady thinks that somebody who is terminally ill should be allowed to jump off a bridge or out of a window without anybody saying, “Wrestle them back,” she should say so. We think that, whether someone has capacity or is in their right mind or not, they should not end their own life. That is the settled view of this country. That is what the law determines. Currently, it is illegal to help someone to do that. We are proposing to change that, to enable people to help somebody to do that in a medical setting.

The implication of clause 3 is very clear: if one has a settled wish, ending one’s own life is something that we regard as acceptable. It will be very difficult to apply the principles of national suicide prevention when we have acknowledged that suicidal people have capacity. I will leave that point—it is not receiving a great echo of affirmation—but I have not heard any objection to it, other than a lot of head shaking.

--- Later in debate ---

[Jack Abbott (Ipswich) (Lab/Co-op)]

Upcoming amendment 339 to clause 4 addresses that specific point. The hon. Gentleman has been asked this a number of times today, but would he be satisfied if that amendment was passed?

[Danny Kruger]

Sorry—remind me of the detail of the amendment.

[Jack Abbott]

Essentially, the amendment would require that if a person is autistic or has a learning disability, they must be given accessible information and sufficient time to consider it. Additionally, there must be at least either a supporter or an independent advocate there. That amendment was tabled by my hon. Friend the Member for Bexleyheath and Crayford and will be discussed later.

[Danny Kruger]

I would indeed support that amendment; it would go a long way to addressing the concerns that we have here. When we discuss clause 4, I will come on to some suggestions for how we can make sure that people with learning disabilities are properly supported, particularly people with Down’s syndrome.

To finish, I will speak to amendment 50, also tabled by my hon. Friend the Member for Runnymede and Weybridge. If we are going to proceed with the MCA, we need to have it on the face of the Bill, to ensure standardisation —hon. Members have confidently asserted that it happens anyway, although the evidence we have been presented with demonstrates that it does not in all cases. Let us be much more explicit about the requirements that are needed. We should specify the minimum of what needs to be understood for capacity, including understanding the likely process of all treatment options, including non-treatment, and prognostic uncertainty. It is not acceptable, in my view, to have all of that worked out later by clinicians. Parliament must clearly say at this stage what is important.

While Members are looking at the quite extensive terms of amendment 50, it would be good to know what in that list they would object to and why any of it should not be included. It does not change the Mental Capacity Act; it preserves the integrity of the Act. It simply specifies more precisely and gives clear guidance to doctors to ensure that they do the best job they can. Lastly, it states that the patient must have full understanding of the consequences of

“requesting assistance in ending their own life”.

That includes the potential for medical complications at the end. That is a point that has been touched on a little in debate, but I will quickly say a word on that.

It is very important, in my view, that we are clear about what the patient should do, what the doctor should do, what the patient is entitled to do and what the doctor will do, in the event of complications at the end. This is not an abstract question. The Association for Palliative Medicine of Great Britain and Ireland gave evidence to us, stating:

“It is important to highlight the lack of scientific evidence for the effectiveness, failure rates or complications of any ‘approved substance’”,

and pointing out that the proposals in the Bill fall quite short of

“the usual practice of approving treatments in the UK, which mandates careful assessment of drugs and their combinations.”

We do not know how that will be applied in this case. It is a point for later in the Bill how we consider which drugs should be used, but it is relevant at this stage to insist that patients are made fully aware of the drugs that will be used and their potential complications. We often refer to Oregon as an inspiration for the Bill, and the law in Oregon requires the applicant to be fully informed by the attending physician of the

“potential risks associated with taking the medication to be prescribed”.

It might be worth considering that.

Professor House, in evidence to us, pointed out that informed consent—which is obviously a principle of the Bill—

“is not really specified properly. The doctor is required to ask the person what they want to happen in the event of complications without having previously explained to them what all the complications might be.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 169, Q216.]

So I think it is important that we specify that those complications are explained to them clearly at the outset.

This is not an abstract point. Sarah Wootton, chief executive of Dignity in Dying—my least favourite organisation—wrote in her book “Last Rights”:

“We have to move away from idealised, sanitised, nursery-rhyme accounts of what death can be…towards truthful, no bullshit, plain-spoken explanations of what could happen.”

I do not think Dignity in Dying applied that test when putting those disgraceful adverts in the tube, showing people dancing round their kitchens anticipating their lovely death, but she is right that we need to be very clear about what actual death can be like with these drugs.

I want to end with a reference to the work of Dr Joel Zivot, an American academic. The only proper study that can be done into people who have been given lethal drugs to die, using any of the drugs that will be used in this case, is of people who have been executed in the United States. Of course it is not possible to do many studies into the after-effects on people who have had an assisted death, but there have been some studies of people on death row. Dr Zivot’s point is that there is real evidence of what looked like trauma, distress and pain suffered by people as they died. Even if they themselves look peaceful—because often the first drug that is administered is a paralytic, so they are rendered immobile, and they may look very peaceful—it is evident that in some cases there is real distress going on beneath that peaceful exterior. We need to do a lot more work on understanding which drugs would be used and what their effects would be, and that needs to be properly explained to patients. All of that would be captured in amendment 50.

[Dr Opher]

We are talking about a whole different area now, but I would say that, as a medical professional, if someone is gaining consent to a treatment it is in their code of practice under the General Medical Council that they explain all these things. We do not need to write it into the Act; that is already in existence. A more general point is that there is a lot of stuff already in the public domain on doctors’ behaviour that does not need to be restated in the Bill. The more we write, the more likely it is that it will be less safe for patients. I would keep it very simple.

[Danny Kruger]

I really want someone to explain this point to me: how can it make it more unsafe for patients to state the safeguards explicitly? How can it possibly make it harder, or more dangerous, if we specify what—as the hon. Gentleman said—is good practice currently, which the best doctors already do? I greatly respect him and his medical practice, but is he really saying that every doctor conforms perfectly to the GMC guidance? There are obviously clear problems with the way in which some doctors operate, and this is uncharted territory. Surely for the sake of doctors, as well as patients, it would be appropriate to specify explicitly how they should conduct these assessments, what communications they should make and what patients should be properly informed of. I cannot see how that makes it more dangerous.

[Kim Leadbeater]

I want to concur briefly with my hon. Friend the Member for Stroud; I have done a lot of research into this, believe me. We have the GMC, the British Medical Association and organisations that represent medical practitioners. They have very lengthy codes of conduct and behaviour codes. What we cannot do—and I have tried—is to include all that in the Bill, and we have to be cognisant of that in some of the amendments that we make.

[Danny Kruger]

I challenge the hon. Lady, and I would welcome her response to this: we clearly can specify some things that can be done, which is what my hon. Friend the Member for Runnymede and Weybridge has done in half a page with amendment 50, which clarifies explicitly what information the patient should receive and what they should properly understand. How does including this list of pieces of information make the Bill more dangerous for patients?

[Kim Leadbeater]

I am not saying that this amendment would make it more dangerous, but it would overcomplicate things. That is the point that my hon. Friend the Member for Stroud was making. We need to have a very clear piece of good law, and I think the Bill already covers the points in amendment 50 and others, which I fully appreciate have been put forward in good faith. It is the clarity of the law that sometimes has to be the focus. I absolutely concur with the hon. Member for East Wiltshire on safeguards, but unfortunately I feel that we will probably never get to a point with the Bill where he is happy with the level of safeguards, and maybe he is prepared to acknowledge that.

[Danny Kruger]

It is unlikely that I would ever vote for an assisted dying law but, if we are going to have one, I want to make it as safe as possible, which we all want. On those terms, in the spirit of a Bill that is going to pass, why not include these specific pieces of information? The hon. Lady says that, while it would not make the Bill more dangerous, it would overcomplicate it. Again, how does it overcomplicate it to add a few clauses specifying information that must be clearly communicated?

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

Amendment 50 requires that whoever is medically assessing capacity is also able to understand the legal implications. The final point of the amendment says that they have to understand what the insurance implications are likely to be, which would mean that they would have to inquire into the individual’s financial circumstances. They possibly might need to understand what provision they have made for their family.

It also references what the designation of death is likely to be, which again requires them to decide there and then what they will write on the death certificate, when it happens. As the hon. Member for Stroud said, much of what is in amendment 50 is already either in the Bill or implied by it. As Ministers have said before, we have a duty to the statute book not to embroider it to the extent that it becomes overcomplicated and unworkable. I do not think that any of us would necessarily argue with the points in amendment 50, other than perhaps the last one about legal expertise, but clarity leads to certainty, which leads to safety.

[Danny Kruger]

By that logic, the safest, clearest Bill would be one that simply authorised an assisted death without any of these checks whatsoever. My right hon. Friend made the point that this amendment requires the doctor to discuss with a patient all the implications of their death. That is perfectly appropriate—in fact, if that is not being done at some stage in the process, and if that is not clear in the Bill, it absolutely should be. Otherwise, how can we be sure that the person is making a settled, informed decision, with all considerations taken on board?

I am sorry if that imposes a little extra burden on the doctor. One of the great challenges of the Bill is that, if we are to do it properly and genuinely make it a Bill that is strong in its safeguards, a whole lot of people will have to do a whole lot of work. There will be a huge demand on all parts of the public sector. This is required, I am afraid. I do not accept that the content of the amendment is either already in the Bill or implied in it. There might be some remote piece of GMC guidance that touches on this, which we would hope is properly applied, and I appreciate the point about embroidery. Nevertheless, this is not embroidery; this is upholstery—it is necessary for the Bill to be strong.

[Sarah Olney]

I want to pick up on a point that the hon. Member made before the previous intervention about the rights of the doctors themselves. This is an important point that we do not consider enough. We talk a lot about the rights of the patient, quite rightly, but this Bill will provide the means by which another person can get involved in someone’s death. It is really important that the legislation protects the rights of that person—the doctor involved—as well. Does he agree that providing greater clarity about the standard required to assess capacity will help the doctor to protect their own rights, perhaps in response to legal challenge from families, and that it is important that we consider the rights of the doctor as well as the patient?

[Danny Kruger]

The hon. Lady is absolutely right. It is an interesting irony of the Bill that it is presented as the free choice of individuals, but actually it imposes all sorts of obligations and repercussions on other people—the very term “assisted” conveys that. Many other people will be affected by the decision to take an assisted death. She is right that it would be very helpful for the doctors to be confident that they have done their job properly because they have a clear list of communications they are expected to make.

My understanding is that doctors are indemnified against legal challenge in consequence of decisions they make around this; that is an interesting point and one that I am uncomfortable with, but we will come to that later in the Bill. Leaving lawsuits out of it, from the point of view of the doctor’s professional conduct and their peace of mind, it would be very helpful for them to have it clearly specified what information they are required to convey.

I am grateful for Members’ interventions, and I appreciate the good faith and good sense that has been spoken, but I have not yet heard any reason for objecting to this amendment, other than the possible question of its being otiose and not necessary. That is not a sufficient reason to object to an amendment. We should not be objecting simply on drafting grounds. There can be tidying-up exercises later if there is repetition. I have not heard objections to the content of the amendment, and I would very much welcome Members’ support.

[Naz Shah]

Does the hon. Member agree that the amendment ultimately aims to provide clarity, and that clarity ultimately leads to safety?

[Danny Kruger]

Exactly. A few more words of clarification should not be regarded as burdening the Bill or creating bureaucratic obstacles for doctors and patients; the amendment actually specifies more explicitly what is going on. It is almost akin to the debate we had on amendment 181 and those dangerous words “for the avoidance of doubt”; that is essentially what this amendment does, but it goes further, because it imposes clearer obligations on doctors to do their job properly.

[Jake Richards (Rother Valley) (Lab)]

Much has been covered today, and the issue of capacity was debated at length when the Committee considered clause 1, but I do have some observations.

I am sympathetic to the assertion that there should be changes to presumption and burden. Those are things that I have considered and spoken about with the promoter of the Bill and, outside the Committee, with experts who gave evidence to the Committee. I have spoken about them publicly as well; I am very sympathetic.

At the heart of this, we have two options. We could change the burden and presumption in the Mental Capacity Act 2005 for the purposes of assisted dying, rewriting 20 years of case law and medical practice. There is certainly some value to that, but that would be a radical departure from current medical practice, and there are other concerns. The alternative is to put in place rigorous processes and training around the Mental Capacity Act to ensure that it is implemented properly. After some reflection, I err on the side of the latter option, for a number of reasons.

First, I accept that there is debate among psychiatrists about this issue. We heard evidence from some who deem the Act not to be suitable for this new realm—I accept that we are entering new grounds, and I will come back to that point—but many psychiatrists and lawyers working in this area would deem it uncomfortable and unnecessary to depart from the Act.

Secondly, there is an oddity in changing presumption. There is an oddity in someone having to prove that they have capacity to fulfil their own desire. That oddity is one of the reasons that the Act is drafted as it is. It is partly—there are two sides to this coin—to ensure that there is no discrimination, partly to comply with the Human Rights Act 1998 and human rights more generally, and partly to ensure that we do not end up in a medical situation that is patrician, whereby medical doctors take an intrusive view of capacity rather than meeting the individual as they are.

Thirdly, the Bill, when amended—I will come on to the amendments that give me some comfort—will offer more safeguards than the Mental Capacity Act. Amendment 5 to clause 9(3) would ensure a further level of assessment. My hon. Friend the Member for Spen Valley has indicated that she will support that important amendment, as have all members of the Committee. If there is any doubt, there will be a further assessment by a psychiatrist. That goes some way to reassuring me that it is not necessary to rip up the burden or change the presumption in this area.

I want to make an observation about burden of proof, presumption and the nature of the assessment. Professor Whitty clarified his evidence. It is right that the burden and the presumption do not change, but of course the nature of the assessment rightly changes according to the circumstances. Every assessment of capacity is somewhat different, which is why amendment 50 is too prescriptive, in my view.

Of course, we can consider incredibly serious cases involving deprivation of liberty or the ability to conduct litigation. I have worked with parents whose children are being removed and looked at whether they have the capacity to make decisions about how they present their case. It is very dangerous to compare the severity and the profound nature of different circumstances, but let us not pretend that the Mental Capacity Act is not used to assess the most complex issues of capacity every day.

I am very sympathetic to amendment 50. I have met the hon. Member for Runnymede and Weybridge, who tabled it, and the hon. Member for Solihull West and Shirley to discuss it, but I stress that such a prescriptive provision is not appropriate for primary legislation when we are entering new ground. I accept, as hon. Members with different views have said, that we are entering new territory and that this is difficult. I accept that psychiatrists and medical practitioners will have to think long and hard about the nature of the capacity assessments, especially under clause 9(3), when that is activated. That work will have to be done. It has been set out in primary legislation through some of the training clauses, which have already been referred to.

There is no doubt that there will be a lot of work and consideration, but I do not deem it appropriate to have a clause drafted by one psychiatrist, albeit an undoubtedly esteemed and experienced one: the hon. Member for Runnymede and Weybridge, who tabled the amendment. Rather, the work needs to be done as the Bill is implemented over a two-year period. It needs to be done as part of a full consultation with psychiatrists, once the Bill has been passed, and that should be set out in guidance. That is what would usually happen with deprivation of liberty. I do not think it appropriate for primary legislation to set out the factors for a capacity assessment.

--- Later in debate ---

[Jake Richards]

We are debating lots of different things now, rather than just clause 3. There is an issue as to whether in those cases the individuals were found to have capacity, but we are talking about the process by which someone is found to have capacity, rather than what happens thereafter. We have had that debate, and I am happy to have it, but we are talking now about the process by which people are found to have capacity.

This is the problem with interventions: I have lost my train of thought. This is why people do not take them.

[Danny Kruger]

rose—

[Jake Richards]

But I am happy to take another, although I may come to regret it.

[Danny Kruger]

I have a simple point to make; the hon. Gentleman can work out what he is going to say next while I make my brief intervention.

The point is that the referral to a psychiatrist will happen if the doctor has doubts in their mind. There is not an obligation on the doctor to refer; there is only an opportunity for them to do so, if they conclude that there is a reason. May I put a scenario to the hon. Gentleman? It is not clear whether this could happen under the Bill; well, it could happen, because it is not prohibited. A private practice might establish itself to provide assisted death, with the medical assessments and the support right through to the end—to the final act.

In those circumstances, if a patient goes to one of those clinics, does the hon. Gentleman not see that there might be a risk that the whole incentive of the business, even if it is a charity, will be to expedite the process, tick the boxes and pass people through? Does he not consider it dangerous that there is not an absolute obligation to refer to a psychiatrist and in fact, an obligation to pass a higher capacity test than the one that is currently in the MCA?

[The Chair]

A handy household hint: Members do not have to take interventions if they do not wish to do so. If a Member wants to keep their train of thought, they should feel free not to take an intervention.