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

Danny Kruger Excerpts

Committee stage
Wednesday 26th February 2025 Public Bill Committees

[Danny Kruger (East Wiltshire) (Con)]

I completely agree with what the hon. Gentleman is saying about the importance of getting the training right, but even if the training were right it might not be robust enough. The point was made earlier in the debate that there is a clause towards the end of the Bill about codes of practice that specifies that medical professionals must have regard for a code of practice that “may” be set out by the Secretary of State. Does he agree that that is a very thin defence to rely on? We are not talking about anything in primary or secondary legislation; it will be in a code of practice that may be laid down by the Secretary of State with no obligation or legal liability for a doctor to follow it. We are talking about some layers down from what needs to be in the Bill in terms of the assessments that should be conducted.

[Sojan Joseph]

I agree. As part of the code of practice, professionals are expected to complete the training that has been outlined already, but I am not confident that that is actually happening. Saying that there will be training does not reassure me that it will be robust enough.

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[Lewis Atkinson (Sunderland Central) (Lab)]

I was not intending to, but I will speak very briefly to follow my hon. Friend the Member for Ipswich. I agree that what is set out in amendment 50 is entirely sensible and I support such provisions. However, I will not vote for it, and I want to explain why.

We will go down a very difficult route if we set out the regulation in primary legislation for every individual area of medical practice in this country. We do not have an equivalent version for how doctors should talk to their cancer patient and what information they should provide. We do not have the equivalent in various other sensitive acts, such as the Abortion Act 1967, the Human Fertilisation and Embryology Act 2008 and so on. The reason is that we rely, as set out in statute, on regulation through the General Medical Council.

I want to read into the record some of the existing General Medical Council guidance for doctors on giving information to patients. Of course, this covers any doctor-patient interaction, and it would apply in this case as well:

“The information you give patients

10. You must give patients the information they want or need to make a decision.

This will usually include:

a. diagnosis and prognosis

b. uncertainties about the diagnosis or prognosis, including options for further investigation…

c. options for treating or managing the condition, including the option to take no action

d. the nature of each option, what would be involved, and the desired outcome

e. the potential benefits, risks of harm, uncertainties about and likelihood of success for each option, including the option to take no action.”

That is already set out by the General Medical Council.

[Danny Kruger]

The hon. Gentleman is making an important point about the obligations on doctors to communicate the range of options that patients have, and we are going to discuss that more precisely when we consider the next clause, but his suggestion that this should be treated just like any other medical treatment is surely contradicted by clause 4(1), which specifically disapplies the Montgomery ruling, which I think he is relying on there. That ruling specifies that doctors must communicate all available options to patients. In clause 4(1), the doctor is not obliged to communicate this particular option. Does the hon. Gentleman accept that it is already acknowledged in the Bill that assisted dying is not the same as all other medical treatments and it does not have to be communicated in the same way?

[The Chair]

Order. Can we please keep interventions as short as possible?

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[The Minister for Care (Stephen Kinnock)]

It is a pleasure to serve under your chairship, Mrs Harris. As usual, my remarks will focus on the legal and practical impact of amendments, to assist Members in their consideration.

This set of amendments seeks to change the way in which capacity is determined. As drafted, the Bill requires that a terminally ill person must have capacity to make a decision to end their own life before they meet the conditions for accessing assisted dying. Capacity in the Bill is determined in accordance with the Mental Capacity Act 2005, which presumes capacity unless it is established to the contrary. Amendment 322 would reverse the presumption of capacity and, in effect, establish a presumption of incapacity.

It may be helpful to the Committee if I set out the Government’s understanding of both the Mental Capacity Act and the implications for the Bill. Section 1 of the Act sets out several guiding principles, including that a person must be assumed to have capacity unless it is established that they lack capacity. Section 3 sets out a description of the factors that demonstrate that a person is unable to make a decision for themselves: that the person is unable to understand the information relevant to the decision; unable to retain that information; unable to use or weigh that information as part of the process of making the decision; or unable to communicate their decision. This inability must be because of an impairment or disturbance of the functioning of their mind or brain.

Turning to the Bill, at each stage of the process an assessment of capacity would be required. This assessment of capacity, in accordance with the Mental Capacity Act, is separate to the considerations of whether a person holds a clear, settled and informed wish to end their own life, which is also required by the Bill.

Amendment 322 would disapply section 1(3) of the Mental Capacity Act, which is the principle that a person would not be treated as lacking capacity unless all practicable steps had been taken to help them to make a decision. This could create challenges for practitioners who have experience using the Mental Capacity Act, as they would need to apply a new approach.

Amendment 49 seeks to apply a consistent approach to the burden of proof when assessing a terminally ill person’s capacity for assisted dying. The Mental Capacity Act has two evidential tests. In court proceedings to determine capacity, the balance of probabilities test applies. When care or treatment is given to someone on the basis that they lack capacity, there is protection from liability if there is a reasonable belief that the person lacks capacity and the intervention is in the person’s best interest. The amendment would diverge from this evidential approach. It would also have implications for the workforce. Requiring doctors who have experience in applying the reasonable belief test to instead apply a balance of probabilities test for assessing capacity would likely make the current established approach more complex and potentially less safe.

Amendment 50 seeks to specify certain matters that the person must be assessed as being able to understand in order for a determination to be made that they have capacity. Under the Mental Capacity Act, when a capacity assessment is carried out, the assessor must determine the salient information that the person needs to understand, retain and use or weigh based on the circumstances of the case. The amendment would diverge from this approach, both by specifying in statute the information to be understood and by including the requirement only to understand the information, not to retain, use or weigh it. The Committee may wish to consider whether that would in some respects weaken the test.

Amendment 50 might create two legally distinct frameworks for decision making that doctors would be expected to use. Again, this may introduce additional complexity for those undertaking these assessments.

[Danny Kruger]

As I understand it, the objection to the amendment is on the basis that it sets up an alternative framework for other healthcare decisions. Is it the Minister’s view that assisted dying is a healthcare treatment?

[Stephen Kinnock]

We are talking about the holistic nature of the engagement between patients and medical specialists. In some cases that is for treatment, and in others it is for the withdrawal of treatment. The answer to the hon. Gentleman’s question is that what we are talking about here—the two distinct legal frameworks— relates both to treatment and the withdrawal of treatment. This Bill fits into that category, in the sense that it is part of the engagement and conversation between a patient and a medical practitioner.

[Danny Kruger]

I am not talking about the withdrawal of treatment, which I recognise is covered by the same legal framework—particularly the Mental Capacity Act—as other healthcare interventions, because that concerns the withdrawal of a healthcare intervention. Is it the Government’s view that the administration of assisted dying under this Bill would be a healthcare treatment?

[Stephen Kinnock]

It is the view of the Government that this is a new piece of legislation that introduces a new type of engagement between somebody who meets the conditions and criteria set out in clause 1, and medical practitioners and other experts, as set out in the Bill. I am not quite sure what the hon. Gentleman is driving at. I do not know whether he wants to get into a discussion about the definition of the word “treatment”. It is absolutely clear that this Bill introduces changes into the system, including a new part of the conversation that would take place between medical practitioners and patients who have less than six months to live.

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[Stephen Kinnock]

That goes back to what I was saying earlier, which is that this is fundamentally a judgment call: do we make the system more robust, resilient and effective by adding more complexity and bringing in a new and parallel legislative framework, or is it best to work with a legislative framework that is well established and well understood by practitioners, and then to enhance that through regulations and training? It is the Government’s view that the latter is a more effective way of doing this legislation, but I accept that the hon. Members who have tabled this group of amendments clearly would not agree with that analysis.

[Danny Kruger]

Last intervention, I promise—maybe. I do not mean it is my last intervention ever, just in this speech—no, in this minute!

An amendment was tabled by the hon. Member for Richmond Park that would have replaced clause 3 altogether, and that would have been understood as a parallel system—which would be appropriate because we are discussing a new order of intervention, which I will not call a medical treatment—but we are not doing that. We are accepting the Mental Capacity Act. It is not a parallel process: it is one that builds on the foundation of the Mental Capacity Act in a way that already happens in other respects, as the Minister has described. It is a question of putting it in legislation or into a code of practice. I recognise his arguments, but will he please acknowledge that we are proposing to build on the Mental Capacity Act and enhance it in legislation to make it safer?

[Stephen Kinnock]

I thank the hon. Member for the last intervention that he will ever make on me.

The Government’s analysis of this group of amendments is that, to varying degrees, they would not add clarity; they would add more complexity, partly because they would either create a parallel legal framework or put new elements into the mix that would create operational challenges for practitioners. That is the Government’s fundamental analysis, but it is a finely balanced judgment and I absolutely accept the hon. Member’s argument.

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[Dr Tidball]

I am sorry, Mrs Harris, but I may have risen too soon. I want to speak to amendment 339, but I would first like to hear from my hon. Friend the Member for Bexleyheath and Crayford, who tabled it.

[Danny Kruger]

I rise to speak to new clause 6, in the name of my hon. Friend the Member for Solihull West and Shirley; to amendment 368, in the name of my right hon. Friend the Member for East Hampshire; to amendment 270, in the name of my right hon. Friend the Member for South West Wiltshire (Dr Murrison); and to amendment 278, in the name of the hon. Member for Wells and Mendip Hills. I will canter through them as quickly as I can.

My concern about new clause 6, which specifies that an advance directive would be inapplicable in the case of assisted dying, is that, as we discussed briefly at a previous sitting, advance directives are currently about the refusal of treatment. That is what they exist to do. Under the new clause, as in the Mental Capacity Act 2005, the effect of an advance decision would be that

“the specified treatment is not to be carried out or continued”.

However, under clause 18, the doctor must be satisfied at the time that the lethal substance is provided that the patient has capacity. I do not think that the new clause is necessary; it is otiose or even nonsensical, because the Bill already assumes that the patient has capacity at the very end. [Interruption.] The hon. Member for Spen Valley agrees with that point. I invite my hon. Friend the Member for Solihull West and Shirley to consider whether he wants to press new clause 6 at all.

On amendment 368, which relates to people with Down’s syndrome, I hear what my right hon. Friend the Member for North West Hampshire says. I strongly agree with him; I will make a couple of points and then respond to his suggestion.

I look forward to the points from the hon. Member for Spen Valley. I do not say this in a carping spirit, but it is relevant that the National Down Syndrome Policy Group opened its submission with a series of complaints about the process. The group feels that the consultation process has been rushed: we have not had the usual 12 to 16-week public consultation. It talks about limited professional and affected population engagement in the course of the drafting of the Bill, and a lack of accessible consultation materials; I mention that not to revisit the debate that we had about the process, but because it is a bad start. In the group’s mind, it is a harbinger of how the Bill might operate, and I understand why it thinks that.

The fact is that in our society we have persistent and entrenched discrimination against people with learning disabilities, particularly people with Down’s syndrome. There is a fundamental assumption that is too widely shared that the lives of people with Down’s are worth less than others’. One sees that, I am afraid to say, in the prevalence of prenatal screening and termination of Down’s babies. Yet we know from research that the lives of people with Down’s are as fulfilling, joyful, positive and constructive as everybody else’s. The most marvellous fact is that 99% of people with Down’s syndrome say that they are happy with their life, which I am sure is more than on this Committee and probably more than in the general population.

As a society, we serially misunderstand and degrade the value of people with Down’s syndrome. They are victims of the system, particularly in healthcare. People with intellectual disabilities died at rates three to four times higher than the general population during the covid crisis, often with inappropriately applied “do not resuscitate” orders put on them. The representation from the National Down Syndrome Policy Group was signed by 50 organisations, all representing people with Down’s syndrome, so it is pretty widespread.

Expert advice is that it is very difficult to spot coercion when dealing with people with Down’s syndrome. It is very difficult to ensure that one is getting informed consent. A point that has been made, in particular by the Down’s Syndrome Research Foundation, is that a discussion with someone with Down’s can often feel to them as if a suggestion is being made. That is particularly relevant to the whole question of a doctor’s suggestion, which we will come on to—well, we are on it now. Certainly the whole matter of how a person with Down’s syndrome receives information needs to be taken into account in any work that is done.

[Kim Leadbeater]

The hon. Member is making an important point. As someone with friends who have children with Down’s who, as he says, absolutely have very fulfilling lives, I hear every word that he is saying. Will he take a commitment from me back to those organisations? I commit personally to meeting them, perhaps alongside the right hon. Members for East Hampshire and for North West Hampshire, at a time convenient to them.

[Danny Kruger]

I am grateful to the hon. Lady and am sure that that will be welcomed. It does rather go back to the point that the organisations made at the outset, which is that they wish they had had more consultation earlier on, but I understand why that was not possible in all cases.

[Sean Woodcock (Banbury) (Lab)]

In oral evidence, Fazilet Hadi stated in answer to a direct question from me that she felt that disabled people had not been listened to properly. Will the hon. Member comment on that?

[Danny Kruger]

I am afraid that that seems to be the strong impression that many groups have.

I will quote quickly from a submission that we have received from someone at the National Down Syndrome Policy Group, Fionn Crombie Angus. I am not sure whether Fionn has Down’s syndrome, or is perhaps a parent, but the point is a striking one, which we have not heard enough:

“I do feel very sorry for the people who are suffering, but I think the people left behind, the relatives, will be scarred for life if they help people die. That is the main reason why I do not want the Assisted dying Bill to become law.”

That is not specifically relevant, because we are not discussing whether the whole thing should happen, but it strikes me that there, from a member of the Down’s community, we have a point that goes to the heart of our discussion on the Bill: it is not all about the individual who is seeking an assisted death. More people are involved in the decision.

I made a point in an earlier debate about relational autonomy, which is very significant. That particularly applies to this group of people, who will be making decisions in the context of their family and the people around them, including the doctor who is talking to them. That is why it is particularly important to have a wider set of expertise and advice around people with Down’s.

My concern is that Bill, as drafted, thanks to the inclusion of clause 3 and its reference to the Mental Capacity Act, will assume consent and support people with Down’s receiving this intervention. It would have been best if we had accepted the amendments tabled by my hon. Friend the Member for Reigate and the hon. Member for Bexleyheath and Crayford to reverse the burden of proof. Failing that, we need to ensure that the job is done properly. Amendment 368, tabled by my right hon. Friend the Member for East Hampshire, would address that point.

Given the real concern that we have all discussed about the application of the Mental Capacity Act, it is important to have real expertise, time and attention on behalf of Down’s people with the role of an independent advocate. In particular, that should be someone who has expertise in end-of-life decisions for people with Down’s syndrome, which will be a small group of experts, so we might have to end up widening that, I am sorry to say. We need people with proper expertise.

I think the point that my right hon. Friend the Member for North West Hampshire made about the interaction of the Bill with the Down Syndrome Act 2022 was absolutely right. My understanding is that he is right that it applies to authorities, but it strikes me that the purpose of the amendment 368 would be to insist that the provisions of the Act apply in the case of individuals as well.

My right hon. Friend may be right that there could be complications, so it would be good to hear whether the Minister agrees with him that we should take this topic away, with the hon. Member for Spen Valley, and see whether the provisions in the amendment can be introduced at a later stage of the Bill or in statutory guidance. However, I would want to hear explicitly from the Minister that he is confident that what my right hon. Friend the Member for East Hampshire was trying to do when he tabled the amendment will be reflected properly at a later stage of the Bill. On that basis, I am happy not to press the amendment to a vote unless others feel strongly that we should proceed.

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[Dr Simon Opher (Stroud) (Lab)]

Surely the hon. Member is describing exactly why we need the Bill. If they are given a diagnosis, at that point they can apply for assisted death. We know that there are statutory time limits built in, which I believe will take us to at least 21 days from the diagnosis. The danger is suicide in patients, which is what we are trying to avoid. Approximately 600 patients with terminal illness commit suicide in this country each year, and the Bill will prevent that by allowing them to apply for assisted death.

[Danny Kruger]

I hope that the hon. Member is not suggesting that all 600 would be averted by the Bill. He might be right that some would be, and I recognise that. However, the purpose of amendment 270 is to ensure that people who might be suicidal receive an assessment, whether they are inclined to apply for assisted death, if it is legal, or to take their own life in an unassisted way. If they expressed a wish under the clauses of the Bill to have an assisted death, they would have proper psychosocial assessment and proper steps would be taken to ask, if we are prepared to make this distinction, “Is it just that they are suicidal and not wanting an assisted death?” I find the distinction difficult to parse logically, but if that is the distinction that we are making, let us put it into the Bill and ensure that people are properly cared for in that very dangerous time after they get a terrible diagnosis.

I would like to quote from the written evidence that we received from a member of the Pathfinders Neuromuscular Alliance, which is a user-led charity for those with muscle-weakening conditions such as muscular dystrophy. This person said:

“I’ve been there, I’ve wanted to die, and I’ve been in the position where I would take that option if it was given to me”—

not if it was not. Interestingly, he would have taken that option if it was given to him, rather than suggesting that he was going to take his own life anyway. The quote continues,

“but looking back I can see I was depressed and now I’m so glad that I didn’t take that option.”

At the moment, the Bill does not require anyone to explore these psychosocial factors, and although the person can be referred to a psychiatrist—and, if we go on to accept the amendment, we would ensure that they must be if the doctor concludes that there is doubt—I do want to make a point about referrals. There is an assumption that the doctor will refer the person to a psychiatrist, but that will only happen if they have done their assessment well. We are assuming that they will do the assessment well, but we have heard repeatedly that such assessments are often not done well. I welcome the coming amendment—amendment 6—that says that if the doctor concludes that there is doubt about capacity, they “must” refer. That would be a step forward, but it is not sufficient. Even the psychiatrist will only answer the question, “Is this person able to make a decision?” That does not address any of these other factors.

In Oregon—we refer often to Oregon, and although this Bill is supposed to be the safest in the world, it is not as safe as Oregon in this respect—the doctors may refer the patient for counselling if the patient

“may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment”.

To conclude on this point, psychosocial care is fundamental to good end-of-life care. Members of the Committee have said that palliative care and assisted dying can complement each other; this assessment should be part of that picture, and it needs to come before the first declaration, because once somebody has signed that declaration they are already on the pathway—and there will not be an obligation on them to receive palliative care advice either, because we rejected that amendment. Amendment 270 provides for people’s needs to be met at the first opportunity.

Lastly, on the question of doctor-initiated conversations, I quote Professor Brassington, who submitted evidence to the Committee:

“In normal medical practice, the patient approaches the medic with a problem, and the medic suggests possible courses of action, not all of which would have been considered by the patient. The patient permits further action. But it is implicit that the practitioner who makes the suggestions thinks them good, and the patient is entitled to think that the practitioner endorses them all.”

In a normal scenario, the doctor would think about what is good for the patient. To raise an option is to endorse and encourage it, perhaps as one among a number of other options. It is to suggest that this is a good option—it might not be the one the doctor thinks is the best, but it is a good option for the patient; otherwise, they would not raise it. They can only make a recommendation for options that they consider would be appropriate to the situation.

[Kim Leadbeater]

On that point, I fundamentally disagree, although I will stand corrected by medical colleagues. I do not think that the doctor in this instance is making any suggestion; what they have the responsibility to do is to lay out the options, but it is up to the patient to choose. I would imagine—again, I will stand corrected by medical colleagues—that that is standard practice.

[Danny Kruger]

This is an important debate to have, because the clear implication of a doctor making a recommendation is that this option would be good for the patient. It is one of many—

[Kim Leadbeater]

It is not a recommendation.

[Danny Kruger]

Indeed, it is not a recommendation; but in laying out this option for the patient, the doctor is clearly communicating that it might be the right thing for the patient to do and that it might address their needs. If the suggestion is that they are making a suggestion that might not be good for the patient, then that is of serious concern to us, is it not? The clear implication of current law—with reference specifically to Montgomery v. Lanarkshire Health Board, which determines that we have patient-led medicine in this country now—is that a doctor is obliged to set out all the options that he or she thinks might be appropriate to the case. That goes back to the question about whether we regard assisted dying as a healthcare intervention, but if we do regard it as one, then if it is suggested, it is because it might be the right thing for the patient to do. Implicitly, there is a suggestion that it could be the right option for the patient.

It is interesting that clause 4(1) disapplies Montgomery and says that a doctor is not obliged to make this suggestion. That poses the question: is it therefore a treatment at all?

[Kit Malthouse]

I am not sure my hon. Friend is entirely right. My understanding is that under law and medical ethics, doctors have to discuss all courses of action with someone, even if they believe a course of treatment might have adverse consequences. It is not that they can restrict themselves; they have to give someone the full range. That sits behind informed consent, surely.

[Danny Kruger]

Certainly, there are adverse consequences for all sorts of treatments, but putting assisted dying on the table and making it clear that this is an option for the patient can only be done, morally and legally, if the doctor thinks that it may be an appropriate treatment or intervention for the patient. Otherwise, if we are suggesting that the doctor might not think that this is a good thing for the patient to be doing, it is a serious breach of medical ethics for them to suggest it. It is one or the other. Either this a good thing for a doctor to suggest, or it is not.

[Juliet Campbell (Broxtowe) (Lab)]

A very quick question: does the hon. Member agree that the weight of a doctor’s words weighs heavily on patients?

[Danny Kruger]

I am absolutely sure that is right, and I am grateful to the hon. Lady for making that important point. For anybody, but particularly for the vulnerable and those in distress, as people are towards the end of their life, for those who have had a terrible diagnosis, and for those who feel a burden and recognise that the coming months might not be good for them or their family, of course the statement of this option has an implication—even if it is presented as neutrally as possible. It might well be received as a communication that the doctor is actually trying to say, “You are going to have a terrible death”, but does not want to say it out loud. It could be taken in all sorts of ways by patients.

[Dr Opher]

That is actually not right. In a medical consultation, a doctor gives a number of different options. A small example is that I might suggest to someone that there is an option of taking an antidepressant. Now, it is the patient’s choice as to whether they do that. My role is to give every option that is available, and to encourage and help the patient to make their own personal choice. That is a very basic tenet of clinical care.

[Danny Kruger]

I recognise that, but I repeat that by offering antidepressants, he is suggesting to his patients that it may well be the right thing for them to do. He puts in front of his patients a menu of options, with a degree of advice according to his expertise, but if assisted dying is on the menu, that is because assisted dying is regarded as something, as it were, that is healthy to eat. He would not put something on the menu that he did not think they should take. Everything on the menu is edible.

[Kit Malthouse]

Maybe we have a different interpretation of the Montgomery case, but my interpretation is that it shifted the duty of doctors from being based on what a reasonable doctor should disclose to what a reasonable patient would want to know. In these circumstances, in which someone has a terminal diagnosis and only a few months to go, I guess we are saying in the Bill that a reasonable patient would want to know about this option.

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[Danny Kruger]

I think my hon. Friend is suggesting that a doctor should suggest assisted dying as an option in every case, because if he is suggesting that a reasonable patient would want to know this towards the end of their life, he is saying that every dying patient should be told, “What about assisted dying?” That is a very concerning suggestion. The question is: how would a doctor decide when or when not to make this suggestion?

I will go back to Montgomery and make this point as clearly as I can. The Bill accepts that assisted dying is not an ordinary medical treatment, which is why I pressed the Minister on this question. Clause 4(1) disapplies the Montgomery case law, which requires, as part of informed consent, that the patient be informed of all appropriate options. Having conceded that assisted dying is not an ordinary medical treatment, the objection to a prohibition on doctors raising it makes little sense.

It is true that having such a prohibition would be unlike any other medical treatment, but the Bill has already crossed the Rubicon of saying that assisted dying is different from all other medical treatments, because in clause 4(1) it says that doctors are not obliged to offer it. It is either the case that they must offer it or they must not. There is no grey area. If they do not have to suggest it in any case, that implies that assisted dying is unnecessary in all cases and there no cases where it should be used. I would like to hear from any Member who has an answer to this: in what circumstances might it be appropriate for a doctor to suggest assisted dying?

[Dr Tidball]

Does the hon. Member therefore disagree with the British Medical Association, whose evidence to the Committee has said specifically:

“We support the Bill’s balanced position such that there is no prohibition on raising assisted dying with eligible patients where, in their professional judgement, the doctor considers this to be appropriate—but there is also no duty to raise it”.

The implication is that the Bill gets that balance correct.

[Danny Kruger]

I am grateful to the hon. Member for highlighting that. I disagree with the BMA—I think that its idea of balance is actually an incoherence in the Bill. I note that the BMA elsewhere has suggested that assisted dying should not be regarded as a normal healthcare option or treatment. It is itself a victim of the confusion that is reflected in the Bill about whether or not this is healthcare. As I said, the disapplication of Montgomery in clause 4(1) suggests that it is not actually healthcare treatment and should not be managed in the same way as everything else.

[Jake Richards (Rother Valley) (Lab)]

I have been listening to the argument in some detail. Is there not a danger here of trying to translate the dry words of clause 4 to the conversations that naturally happen between clinicians and patients? Subsection (3) attempts to give some discretion as to when, how and whether to raise this prospect, instead of making it mandatory on any prognosis of terminality.

[Danny Kruger]

I recognise that it is an attempt to give maximum leeway to doctors. I think that is dangerous and puts doctors in a very difficult position. The BMA made the point that it is appropriate to enable doctors to raise this option as if it were just another treatment, even though it has also said it is not just another treatment.

I would challenge the BMA with the Medical Defence Union, which is the union that supports doctors in litigation. It points out, more correctly, that this is the worst of all worlds for doctors because they would be liable to complaints in either situation: if they do not raise it, a complaint can be made against them for not having done so; and if they do raise it, a complaint can be made against them on those grounds. We are being extremely unclear by leaving it entirely up to doctors. As I have said, it is not clear to me the circumstances in which it would be appropriate for a doctor to suggest an assisted death to somebody who has not raised it themselves. I would very much like to hear somebody tell me what those circumstances might be and to paint a scenario for us in which it is appropriate.

[Naz Shah]

Surely all medical codes of practice explicitly or implicitly bar doctors from raising courses of action that they believe could unquestionably harm a patient. Does it therefore not follow that doctors only raise courses of action for patients that they believe will not unquestionably harm them, even if they believe some courses of action are more likely to be in the patient’s best interests?

[Danny Kruger]

That is absolutely right. Either this is a medical treatment—in which it should be obligatory for a doctor presented with a patient who qualifies under the Bill and has the symptoms that we are talking about to say, “By the way, there is also this option”, which is what I think my right hon. Friend the Member for North West Hampshire is suggesting—or it is not a healthcare treatment at all. Clause 4(1) states that they do not have to raise the subject, in which case they should not raise it, because to raise it is to put it on a par with other healthcare options and therefore implicitly, or indeed pretty explicitly, to say, “This is an option that might be good for you”, which is an enormous communication to make.

I go back once again to the difference between this and withdrawing treatment. I have to say this so many times because it is so important: this is not equivalent to withdrawing treatment because this is not specific to the illness being treated. A person can have a treatment or not, and that will address the condition that they are suffering from. The termination of life does not address someone’s symptoms, treatment, condition or illness; it kills them. It is a different order of intervention. I do not think it is a healthcare treatment at all, and it should not be treated as such.

[Kim Leadbeater]

The hon. Member makes a valid point about the circumstances in which this option would be considered a valid choice for a patient. That brings us back to the fact that we are talking about someone who is going to die; the question is how they are going to die. It is not someone who is going to get better—they are not going to wake up and find that everything is going to be fine. This is about what that death looks like.

Pat Malone—one of our witnesses in oral evidence—had a brother who had seen his father die under circumstances so horrible that he had begged his children to help him die. Then the brother got the same condition and could see what his death could look like. Does the hon. Member not value the choice that assisted dying would give that patient to take back control of what their death could look like, with their loved ones around them? This is a very real situation for, sadly, lots of people, and could be where that choice could be valid.

[Danny Kruger]

I was not asking for cases in which it might be the right choice for somebody—I recognise the argument there. I am asking when it might be appropriate for a doctor to suggest it. In the case of the Malone family, if this law had been enforced, they would have requested it themselves. Again, I want to know under what circumstances it would be best for the patient—in their interests—for an assisted death to be suggested to them by a doctor, when they had not raised it themselves. Under what circumstances might that happen?

[Kim Leadbeater]

The concept of a suggestion is also not particularly accurate—it is a choice, in the same way that the other options are a choice. Families could only ask for this conversation if they knew about it, and while we are all living and breathing this Bill at the moment, even if it does come to fruition and the law is changed, there will be people who do not know about this option. Surely, it would not be informed consent for a person to suffer a horrible death if they were not told about this option.

[Danny Kruger]

On the suggestion that people will not know that this option is on the table, who are we talking about in those circumstances? I suggest we would be talking about people who are extremely marginalised, and I would be very concerned about a doctor suggesting an option to them. There may be a tiny number of people who would not know that this option is legal, but I am afraid it would be very widely known the minute that it is law.

[Kim Leadbeater]

rose—

[Danny Kruger]

I will certainly give way in a moment. An enormous number of people will be dragged into the scope of the Bill by suggestions being made to the vulnerable people that we are concerned about. I really do invite her to answer this as honestly as she can; does she not accept that being given this option by a doctor—given the doctor’s position of power and the vulnerable position that the patient is in—could well be interpreted as a suggestion that this might be a good thing for them to do? Does she does not recognise that?

[The Chair]

Order. We should not be addressing Members in that way.

[Danny Kruger]

You are absolutely right, Mrs Harris; I am inviting her hon. Lady to intervene as she wishes to, but I recognise she does not have to do that at all.

[The Chair]

You should be addressing the Chair.

[Danny Kruger]

I recognise that. I should certainly address you, Mrs Harris.

[Dr Opher]

I would like to make a speech that answers some of these points, but I will intervene if that is more appropriate. What would the hon. Gentleman prefer?

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[The Chair]

Order. That is not a decision for Mr Kruger. If you wish to make a speech, if you indicate to me as the Chair, I will call you at an appropriate time. If you wish to make interventions, please do so, but could you keep them short? Have you decided which option you prefer—at your convenience?

[Danny Kruger]

I will decline the hon. Gentleman’s intervention—how about that? I will make his decision for him. Would that be acceptable? I look forward to his speech.

Let me wind up to the general satisfaction of the Committee with a couple of points about some other amendments. On amendment 278, which was moved by the hon. Member for Chesham and Amersham and tabled by the hon. Member for Wells and Mendip Hills—it is a very south and south-west debate—the suggestion is that if somebody has indicated in advance that they do not wish to have a conversation about assisted dying, the doctor will not raise it. That sounds welcome, but I am in fact afraid in practice that I think that this is quite simply an invitation to raise the idea if a declaration has not been made.

The absence of a declaration could well be interpreted as a willingness to have that conversation. Practically, how would it work? Would patients be informed of the need to make a declaration in advance of a doctor’s appointment? Would we all have to think, “Goodness, if I don’t make this declaration, the doctor might be suggesting an assisted death to me”? Should we all do that? Suddenly, we are having discussions about assisted death even before we see a doctor. All over the Mendip hills, people will be worrying that before they see a doctor, they had better sign a declaration.

To make a serious point, although the Bill is frequently framed as a choice only for the people who might take it, with no impact on the rest of society, my great concern is that it will actually impose an obligation on every family with a frail, elderly person in it. It will impose an obligation on all of us as we approach our end to consider whether we should take this option or not. It is not neutral in its effect on everybody. My concern is that amendment 278 will bring that home and make it even more explicitly required that we all consider whether we want to have an assisted death well before the time comes.

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

I think there is already broad consensus in this country: people would like the option of assisted dying. Polling shows overwhelming support for it. I accept that there are disagreements about what the option looks like, but this is not something that people have never thought about before and would suddenly pop into their minds; they have been talking about it for decades and decades. What would the hon. Gentleman say to that?

[Danny Kruger]

The hon. Gentleman is right that people are well aware of this topic, and they would be quickly aware of the option if the Bill became law. Without getting into the question of the bogus polling that claims to demonstrate public support, I would simply observe—[Interruption.] Well, it demonstrates support for something called “assisted dying”, but if we drill into the data and ask people explicitly what they mean, we find that they often mean palliative care. The more that people understand what is proposed in this Bill, the less they like it. Actually, other polling shows that there is a majority against the provisions of this Bill, but let us not banter polling around here. We make the law, and we are not responsive to polls, are we?

There is a challenge about making advance notices, and my strong suggestion is that we do not support amendment 278. I had better leave it there; I think we have all had enough of me—me included.

[Juliet Campbell]

Amendment 124 would prevent a registered medical practitioner from discussing the provision of assistance under the Bill unless it is first raised by the person themselves. This is very similar to another discussion we have had. The reason for my amendment is that the doctor will be suggesting, offering or endorsing assisted dying as a treatment pathway—and that would be new—and the patient may take that as a recommendation or endorsement, which could impede their freedom to autonomously choose assisted death.

Another reason I tabled the amendment is that the Bill risks exacerbating the existing pervasive health inequalities. I am very concerned that biases, both conscious and unconscious, have the potential to significantly impact the treatment pathways offered to people, particularly those who fall under the nine protected characteristics of the Equality Act 2010. Medical practitioners have the potential to influence the treatment pathways offered to people, particularly those from those backgrounds, and I therefore see no reason why assisted dying would be offered as a treatment pathway.

I was thinking of the following example. Under maternity services, we also have abortion services. If someone presented themselves to a doctor and said that they were in the early stages of pregnancy, they would not be offered abortion as an option; they would be asked, “Do you want to have your baby at home or at a hospital? Would you like shared care between your GP and the hospital?” They would not be asked, “Would you like an abortion?” because that is not part of the pathway. For that to happen, the person would go to the doctor and say, “I am pregnant and I would not like to have this baby.” It is therefore important that the individual first approaches the doctor or clinician and says, “I am interested in an assisted death” or “I would like an assisted death.” Assisted dying should not be a treatment option, even if it is part of end-of-life care.

The doctor’s position is one of knowledge and expertise that far exceeds that of their patient, and that places them in a position of power and influence over their patient. Given that power imbalance, the doctor’s suggestion seems like a recommendation. If an individual chooses assisted death because it feels like a recommendation, that decision is no longer autonomous.

I will quote a GP, Dr Hannah Denno, who put in some written evidence. She cited her role as a GP as being one that needs her patients to take her words as guidance:

“I believe that in my role as a GP, to make such a suggestion”—

choosing assisted death, for example—

“would put pressure on some patients to accept it. At a time of vulnerability many patients are very sensitive to any suggestions raised by a health care professional.”

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[Danny Kruger]

I am grateful to my hon. Friend for setting it out so clearly, but I would like a little more clarity because I do not fully understand. My understanding from the Bill is that at the moment of the administration of the fatal drugs—the final act, as it is called—the administering doctor has to be confident of capacity. Were a person no longer conscious at that point, the doctor would not be able to proceed.

[Dr Shastri-Hurst]

The purpose of new clause 6 is to get clarity on that issue, because of the interplay with section 26 of the Mental Capacity Act, which states that if a patient

“has made an advance decision which is...valid, and...applicable to a treatment...the decision has effect as if he had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued.”

I am not suggesting for a moment that seeking an assisted death is conventional treatment in the normal sense, but there will be patients who seek an assisted death and have palliative care treatment along the way, so there could be a technical scenario whereby the palliative care treatment is withdrawn for the assisted death to take place.

There is an element of mischief in my probing new clause, but it is to air the matter in debate. In truth, intervention there are a variety of options with any withdrawal of treatment or any treatment. I wanted that on the record. I have had assurances from the hon. Member for Spen Valley that that is clearly not the Bill’s intention—in many ways, I am arguing against my own new clause. Of course, this is a distinct scenario from an advance statement—the much more proactive step of, “These are the treatments or options that I would like if I lose capacity at a future date”—which has no legal footing. An advance directive, in comparison, is very much concentrated on the withdrawal of care. I do not propose to divide the Committee on the new clause; I merely tabled it so that this could be discussed.

Let me turn to amendments 8 and 124. There has been much discussion and worthy debate on the position of Montgomery, which takes me back to my days as a pupil barrister grappling with issues of consent. I fear that we may be going down a rabbit hole in discussing Montgomery in this context. I agree with my hon. Friend the Member for East Wiltshire that an assisted death is not typical medical treatment in the normal sense of those words; it is a wider holistic medical intervention. Therefore, my understanding is that Montgomery would not apply in those circumstances.

However, some of the principles around Montgomery way well have justification. My concern about the amendments is that while it is quite right that there should be no requirement to instigate those discussions, it would be equally wrong not to allow the flexibility to have that conversation in appropriate circumstances. The reality of clinical practice is that there are consultations within consultations. A patient who comes to a surgery to see their doctor may not feel able to articulate what they truly feel. They may give subtle hints, which doctors pick up during the course of a long career—to put it in lay terms, doctors read between the lines.

There is interplay with the principles of Montgomery, which is clear that a doctor should discuss issues where a reasonable person in the patient’s position would attach significance to them or the doctor is, or should reasonably be aware, that that particular patient would attach significance to them. My hon. Friend the Member for East Wilshire asked for examples of that. There are scenarios where there are subtle hints from a patient who has been given a terminal diagnosis. They ask, “What is the implication of this terminal diagnosis? How am I going to die, doctor?” The doctor says, “There are variety of ways in which this may manifest itself” and goes through them. Some of them may be more tolerable to the patient than others.

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Under the proposed amendment, the doctor would not be able to raise assisted death at that point, which is an option that is available if the law passes. It may not be an option that is palatable to some people, even after the debate—people may have, for very valid reasons, a moral objection or a principled objection to anybody undergoing an assisted death—but once it is on the statute book, it is an option for individuals. The danger is that we place our clinicians in an unenviable position. We cannot force them to have that conversation, but if the patient clearly indicates that they want it—they have indicated that they want to know the options available to them—where does that leave the clinician?

[Danny Kruger]

I am grateful to my hon. Friend for setting out the scenario so clearly. To summarise, he is suggesting that if a patient with bowel cancer says to their doctor, “How am I going to die?”, the doctor would say, “Well, one possibility is that you will die very badly, vomiting faeces,” to which the patient says, “My goodness, I’d never thought of that. What can we do about it?”, to which the doctor should say, “Well, there’s always assisted dying.” I summarise and condense the conversation, but that is the conversation that my hon. Friend is envisaging, is it not?

[Dr Shastri-Hurst]

My hon. Friend summarises a much more complicated conversation; I think he distils it down to an over-simplistic representation of how the conversation would go. A patient says, “I hadn’t envisaged that I may die while vomiting up faeces. What could we do?” The clinician would go through a variety of options that would be available in that scenario, but that would include, potentially, having a discussion about assisted death, as that would be one way of avoiding that situation coming across the hills.

This is the issue I have particular concern about. In the scenario where that conversation arises, a patient has very clearly indicated that they want to know all the options available for how they would manage their death, and the doctor feels that is a cue, quite understandably and, in my view, rightly, to have a wider conversation that involves assisted death, along with other options, because he or she believes that the patient has indicated that that is what they wish. If we say that a doctor cannot have that conversation in any circumstances, we open up the clinician to the accusation, perhaps from a relative, who says, “Hang on a minute, doctor. My relative didn’t raise that with you. You raised it with them.”

These are very subtle and carefully balanced conversations. I understand where the amendment comes from, but without trusting in the judgment of clinicians, who know their patients well, we are setting them up to fail. We are setting the system up to be more clandestine. We are going to prevent what are very genuine and important conversations from taking place, because people are too scared of the operational framework that would be imposed on them. In those circumstances, we would put forward a Bill that does not function as intended. For those reasons, I will not support amendments 8 and 124.

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[Naz Shah]

I am not sure that the amendment would be that kind of gag clause, so I disagree. If a patient says, “Give me all the options to bring an end to this,” the judgment of the doctor could be that assisted dying is an option. If that is the case, perhaps we need to look to the Government’s and Ministers’ wash-up process. When we are tidying up this Bill, I am sure that there will be plenty of opportunities for the Government to put in the significant words that safeguard patients. That is my feeling, but I thank my hon. Friend for his intervention.

[Danny Kruger]

The clear implication of the amendment is that if the patient requests to know what can be done to end their life, that is an invitation to raise the option of assisted dying; if they ask the doctor about what can be done to deal with the pain, symptoms and illness, they should be offered information on that. I am afraid that it comes back to the distinction between its being a healthcare option and not being a healthcare option. Does the hon. Lady agree that the evidence from Australia is clear that the minute there is a law like this, there will be challenges to the safeguards? Each safeguard will be seen as a barrier to a human right and a barrier to access. That is what the Australians told us.

[Naz Shah]

I agree that that is what the evidence shows us, and there are many concerns in other jurisdictions as well. I will come back to that distinction.

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[Sarah Olney (Richmond Park) (LD)]

I wish to speak briefly to amendment 270, in the name of the right hon. Member for South West Wiltshire, to which I have put my name. It is about the really important issue of assessing suicidal intent as part of the assessment as to whether somebody has capacity to seek an assisted death. It is a really important point. The Bill expressly sets out that the person seeking an assisted death should have

“a clear, settled and informed wish to end their own life,”.

Amendment 270 seeks to establish that the wish cannot be clear or settled if there is any doubt about whether the person has a suicidal intention instead of seeking an assisted death on the basis that they have a terminal illness. In its current form, the Bill does not require a structured assessment of whether a patient is experiencing remediable suicidal risk factors, such as treatable depression, external pressures or suicidal ideation, before assisted dying is discussed.

In the oral evidence, Dr Mulholland said that most people with depression, anxiety and other mental health problems “would have capacity” under the Mental Capacity Act because it would be presumed. It is not necessarily an obstruction to people being referred for anything. It is an important point that someone can have depression and that it can lead them to have suicidal thoughts, but under the Mental Capacity Act they would still be assessed as having capacity to decide that they wanted an assisted death.

What is really important is that we have, over some years in this country, developed a suicide prevention strategy. I am sure that every Member in this room has had constituents approach them, as I certainly have, about family members who have committed suicide, where they were able to identify factors that made that suicide preventable. That is why it is so important that the suicide prevention strategy has been developed and continues to be developed, and why leading figures associated with that strategy—and with suicide prevention more widely—are concerned that a Bill for assisted dying may undermine suicide prevention strategies. We should take every care to prevent that in this Bill.

The current UK suicide prevention strategy cites early intervention as a priority to implement tangible actions aiming to reduce the risk factors of suicide. In line with that strategy, amendment 270 provides early intervention that aims to identify the symptoms of suicidality in a patient before the initial discussion about assisted dying can take place. At the bare minimum, someone who is severely suicidal will not be allowed to enter into conversations about receiving an assisted death.

It is important to reflect that suicidal ideation is not the same as a settled wish to die. Evidence shows that when mental health issues are treated, many patients no longer seek to end their life by suicide. Dr Price, in the oral evidence, said that 20% of terminally ill patients experienced depression, which is strongly associated with the wish to hasten death. When depression is identified and treated, the wish to die often diminishes. It is so important to distinguish and make provision for those people who are experiencing a wish to die as suicidal ideation, as opposed to the

“clear, settled and informed wish”

specified in the Bill.

Research from the Office for National Statistics, King’s College London and the University of Manchester suggests that people diagnosed with a physical terminal illness are at an elevated risk of death by suicide, because of an increase in the psychological distress that can lead to severe depression in many patients, but data from the study shows that it is a more pronounced risk of suicide in the first six months after diagnosis or first treatment and, on average, suicide rates in the first year after a terminal diagnosis were 21.6%. Of course, it is important to reflect on the fact that a diagnosis of a terminal illness can take place some years in advance of the actual prognosis that the person’s death may occur. We are looking at a group of people who are within six months of their death as far as can be established by what is, as we know, uncertain prognosis—yet the incidence of suicide among those with a terminal illness is much more weighted towards those who have just received a diagnosis. These, of course, are not the same group of people; there may well be overlap, but they are definitively not the same.

Evidence on the gov.uk website suggests that

“over half of men aged 40 to 54 who died by suicide had a physical health condition.”

We know that having a physical health condition or any kind of terminal illness has an impact, and that evidence demonstrates the impact that poor physical health has on mental wellbeing. We know that thereDr Louis Appleby, a psychiatrist who leads the national suicide prevention strategy for England and directs the national confidential inquiry into suicide, has expressed concerns that the Bill fundamentally undermines the basis of the suicide prevention strategy. Identifying and diagnosing capacity and mental disorders are easy to put down in writing, but in practice it is much harder for professionals to make a correct judgment straightaway. Where we do not want someone to die, we intervene by offering mental health support, crisis services and what we hope is a comprehensive suicide prevention strategy, but for those who qualify under this Bill, instead of that suite of support, we allow them to progress straight into discussion to end their life.

It is really important that we have had a debate today about how the discussion should be initiated and the appropriate way to do that, but what is important about amendment 270 is that it takes into account the specific factor of suicidal ideation. It would mean that whatever the outcome of the decision about how the conversation should be initiated, the possibility that the person wishes to commit suicide is nevertheless taken into account.

[Danny Kruger]

The hon. Lady has just made a very important point. Does she agree that there will be profound awkwardness for a medic? In a hospital, when somebody says they want to die, they are at the moment referred to the mental health team—basically to be put on suicide watch—but under the Bill, without this provision, the obligation would be to say, “Well, maybe that’s the right thing to do,” and refer them to the assisted suicide team. What is being proposed through this amendment, as I understand it, is more or less to do both.

[Sarah Olney]

That is absolutely right. I think it becomes quite challenging for medical professionals when they are presented with a patient who expresses a wish to die: is this a suicidal intent or is it a clear, settled and informed wish to end their life under the provisions of the Bill? That is why it is really, really important that the possibility of suicidal intent is ruled out, as set out in amendment 270, which I support.

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[Dr Opher]

I completely agree. Interestingly, I am on a journey here. To begin with, I thought these were good amendments. I thought that we must not introduce certain things—the doctor being a powerful person and so on. I then asked a lot of my colleagues, and they said, “No, no—we’ve got to clarify the law. We do not want this blurring of the law.” I have actually moved in the other direction, and I think it is essential that we do not bring in these amendments. As my hon. Friends said, the BMA has support the subject being raised and there have been changes to the law in Victoria because the gag clause simply does not work. We need to protect patients and, in my opinion, these amendments are not a good way of doing that. The hon. Member for Solihull West and Shirley made such a compelling argument against those amendments, so I will not go on about them.

On Amendment 278, I actually agree with the Member for East Wiltshire, but probably for different reasons. Again, if we introduce the amendment, if the doctor does not see that a patient has said that they do not want assisted dying and they bring it up, the Bill will potentially criminalise their behaviour. I feel that would not work and it would complicate the law.

I agree with amendments 319 and 320, tabled by my hon. Friend the Member for Bexleyheath and Crayford, which concern age. They would be a good and—alongside his amendment 339—functional change to the Bill.

Amendment 270 is about psychological assessment. As far as I can read in the Bill, as part of the panel process, which we have not yet discussed, there will be a psychological and psychiatric assessment of the patient. Also, when assessing someone with a terminal illness, most doctors will assess their mental health.

[Danny Kruger]

It is very important that we do have psychiatrists involved. In that sense, the addition of the panel may be welcome, although I regret that it is replacing the judicial stage—but, crucially, it comes right at the end of the process, and as I understand it, there will be no obligation on the panel to meet the patient. That is in no way a psychiatric assessment, let alone one at the right moment.