Terminally Ill Adults (End of Life) Bill (Twenty First sitting) Debate
Full Debate: Read Full DebateDepartment: Department of Health and Social Care
Danny Kruger
Main Page: Danny Kruger (Reform UK - East Wiltshire)Department Debates - View all Danny Kruger's debates with the Department of Health and Social Care
Terminally Ill Adults (End of Life) Bill (Twenty First sitting)
Danny Kruger ExcerptsTuesday 11th March 2025
(1 year, 5 months ago)
Public Bill CommitteesRead Full debate Terminally Ill Adults (End of Life) Bill 2024-26 View all Terminally Ill Adults (End of Life) Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 March 2025 - (11 Mar 2025)
Dr Shastri-Hurst
It is a pleasure to serve under your chairmanship, Ms McVey, and to speak to this group of amendments. Amendments 93, 305, 142 and 362 relate to clause 9(2)(b)(iv); amendment 306, tabled by the hon. Member for York Central (Rachael Maskell), relates to clause 9(2)(c).
Clause 9(2)(b)(iv) stipulates:
“The assessing doctor must…explain to and discuss with the person being assessed…the nature of the substance that might be provided to assist the person to end their own life (including how it will bring about death)”.
My amendment 93 would replace “might” with “is to”. In my view, the word “might” creates an air of possibility. The Oxford English Dictionary gives the following definition:
“A possibility as distinct from a certainty”.
The Cambridge Dictionary goes somewhat further, defining “might” as the expression of a
“possibility that something will happen or be done, or that something is true although not very likely”.
In the context of the Bill, I consider that the use of “might” would create too ill-defined a concept.
For a patient to provide informed consent, it is necessary that the healthcare professional set out the relevant information in sufficient detail to enable that person to make an educated decision. In the circumstances of providing a substance, it follows that that information must include what that substance is. In my submission, it is insufficient simply to inform a patient that they might be provided with a substance, although they are just as likely, if not more likely, to receive another substance. Changing “might” to “is to” would provide greater certainty and precision in the wording of the Bill.
I recognise the concerns that have been raised that adopting amendment 93 would overly restrict which substance can be used, which may create an issue if the substance needs to be changed, for example if it was to be taken orally but has to be administered via a different route because the individual is no longer able to ingest orally. To my mind, however, the amendment would not prohibit a clinician from setting out to the individual a range of substances that could be used to provide them with the ability to end their own life, as long as the clinician includes the substance that is used and, crucially, the person seeking an assisted death indicates that in those circumstances they are content for that particular substance to be used. For example, it would be entirely open to an individual to inform a clinician that they are happy with regimes A, B and C, but not D.
Danny Kruger (East Wiltshire) (Con)
I absolutely agree with what my hon. Friend is trying to do. This is a genuine question: does he think that it is possible at this stage for the Government, the Medicines and Healthcare products Regulatory Agency, the NHS or whoever to provide the information that would be required? What is needed to enable the Bill to come into effect with the amendment that he proposes, so doctors are able to say exactly what drugs will be used?
Dr Shastri-Hurst
In the scenario that I envisage, as we have seen in other jurisdictions, there are a variety of regimes that could be used in the given circumstances. It would be appropriate for an approved list of medications and substances to be a delegated matter for the Secretary of State. As medical and pharmacological studies progress, there may be changes to those regimes, so I do not propose putting a list on the face of the Bill. The way I envisage it operating, if the Bill comes into law, is that there would be an approved list of substances that would be open to use. There would have to be a range; we are acutely aware that there are supply chain issues at times, so limiting it to just one regime would be impracticable. I believe that amendment 93 would strengthen the wording of the Bill to provide greater certainty that the nature of the substance to be provided will be explained to and discussed with the person who is seeking an assisted death. I am grateful to my hon. Friend for indicating his broad support for the amendment.
I turn to amendment 305, tabled by the hon. Member for York Central. I appreciate the premise of the amendment, but I have some concerns about the precision of the drafting. It would require the assessing doctor to explain the effects of the provided substance, in addition to how it would bring about death. In its current form, the Bill requires the discussion with the assessing doctor to set out how the provided substance will result in death. My understanding is that the intent of amendment 305 is that they set out the side effects beyond those directly related to the mechanics of bringing about death; this would include any wider discussion around side effects.
Juliet Campbell (Broxtowe) (Lab)
I will speak to amendment 142, which would insert
“and how it will be administered”
into the Bill. It would require the assessing doctor to explain and discuss with the person how the substance that might be provided to assist them to end their life will be administered.
The amendment would be a key step towards giving peace of mind to a terminally ill individual who is seeking an assisted death. It would also preserve their autonomy right up to the final stage. Ensuring that the method of administration is thoroughly explained would provide the doctors and the individual seeking an assisted death with the opportunity to consider the options—if there are options available to them—and decide which method would best preserve the autonomy of that individual.
Assisted dying presents many opportunities for individuals to be coerced, especially at the final stage—death itself. Therefore, the method of administration is key information for the individual to know, and it is not sufficient for it to be withheld from them. We must make it a prerequisite of the Bill that it is supplied. Making an informed choice about the assisted death pathway involves careful consideration, and knowing and understanding every step of the process. It is appropriate for the person to maintain their agency. Minimising the role played by the doctor at the administration stage is also key to ensure that the final act belongs to that individual.
We must acknowledge that many individuals seeking assisted death may experience significant mobility and physical limitations, particularly because of their terminal illness. Those limitations can affect their ability to engage with the process in ways other people may take for granted. For example, a patient suffering from severe weakness, paralysis or chronic pain might have difficulty physically positioning themselves or administering some types of substance, depending on the options available. A person may have difficulty swallowing and would not be able to ingest a substance in the form of a pill, but they may be able to autonomously operate a system that would allow them intravenous administration.
In these cases, the method of administration must be carefully considered and explained in a way that accommodates the patient’s unique physical needs. By discussing the challenges openly at this stage, doctors can help to ensure that the patient understands the options open to them, while making the process as comfortable and accessible as possible. Addressing their mobility and physical limitations in this context is not only a matter of practicality, but a reflection of our compassion and respect for that individual’s circumstances.
By limiting the doctor’s physical role, we also ensure that the patient retains control over the process. Making the act of self-administration as independent as possible ensures that the final part of the process gives the patient agency in choosing how and when to end their life. The individual must maintain a primary role in their death, but the actual administration is the final assurance and assertion of the individual’s choice to end their life. The amendment emphasises the importance of ensuring that, within the Bill, the doctor’s involvement is limited to preparation and support. That is key to making sure that the patient’s final moments are self-directed and as free from any unnecessary external interventions as possible.
Subsection 6 of clause 18, on the provision of assistance, discusses the role of the doctor in administration. It says that a doctor might
“assist that person to ingest or otherwise self-administer the substance.”
By ensuring that the method of administration of the substance aligns with the physical capabilities that a person has to self-ingest, which may be limited, we limit the role played by the doctor at this crucial stage, and limit the chance of the coercion of the individual or of the individual having a death that lacks real autonomy.
In conclusion, amendment 142 plays a crucial role in safeguarding the rights and autonomy of a terminally ill individual seeking an assisted death. By ensuring that the method of administration is clearly explained, we empower patients to make an informed, autonomous decision about the way in which they wish to end their life.
Danny Kruger
It is a pleasure to serve under your chairmanship, Dame Esther. [Interruption.] You are Dame Esther, aren’t you?
Danny Kruger
Are you not? That is an extraordinary oversight. That must be rectified as soon as possible— I am sure it will be. I will speak in support of the amendment in my name and those in the names of the hon. Member for York Central and my hon. Friend the Member for Solihull West and Shirley. As he has explained, amendment 93 requires doctors to specify what drug “is to” be used, not just “might be” used. My amendment 362 states that there must be clarity on the complications and risks involved in the procedure. Amendment 305 states that we must be clear about
“other effects in addition to death.”
Amendment 306 discusses escalation in the event of complications.
We have discussed informed consent previously. We have identified that the General Medical Council’s guidance on critical information that patients must receive has been selectively placed in clause 7. Of the five areas that the GMC says should usually be conveyed to patients, two were omitted: first,
“uncertainties about the diagnosis or prognosis, including options for further investigation”,
and secondly,
“the potential benefits, risks of harm, uncertainties about and likelihood of success for each option, including the option to take no action. By ‘harm’ we mean any potential negative outcome, including a side effect or complication.”
It is not being explicitly stated that doctors should communicate that to patients.
Telling a patient exactly which drug or substance will be used to end their life, and its likely side effects, is critical if they are to have informed consent. Full understanding requires the patient to know the specific drug that will be used. It lets the patient grasp the method, its effects and its finality. Patients deserve to know how the drug will work; what its administration will be, whether oral or intravenous; the time it will take to have an effect, whether that is minutes or hours; and the other sensations that will be felt. It is difficult to say that we can convey that information without being specific about which drug will be used.
In other countries, for instance in the Netherlands, the criteria require that patients are fully informed, including about the drug that will be used and the method. In Oregon, the Death with Dignity Act similarly requires discussing the prescription of the specific drugs. That equips the patient to find out more, should they wish to do so, and to ask questions. A patient with a terminal disease needs to know the drug to confirm if it aligns with his or her wish for a peaceful death—it is not just an abstract agreement to die, trusting that medicine will do the trick.
An important consideration to note is age. Dr Jessica Kaan, writing in the Journal of Aid-in-Dying Medicine, found
“a clear and linear correlation between younger patient age and longer times to death. Older-age patients have, on average, shorter deaths.”
It is important for clinicians to be aware of that research. She continued:
“Clinicians should consider and discuss this information as part of informed decision-making…with patients.”
They can do that only if they are aware of what the drugs will be.
Dr Simon Opher (Stroud) (Lab)
I thank the hon. Gentleman for tabling amendment 362. Does he accept that Australia, for example, has a very different regime from America? In Australia, people are given pentobarbital, which has not failed on any occasion—in any of the 2,500 treatments since assisted dying was legalised. In America, people are not allowed to use that; instead, they use another cocktail of drugs, which is not as ideal and can have other side effects. May I also say that I am not sure whether it is totally relevant to discuss the problems of a drug given in America in this context? We are discussing just putting down in law what the doctor is obliged to say to the patient.
Danny Kruger
I am grateful to the hon. Gentleman for those points because he helps me to direct my argument. It is essential to discuss the evidence from abroad about the complications that arise from assisted suicide, but the evidence is very patchy: we know what we know, but we don’t know much. There is a complete dearth of evidence, including in Australia. When Australians gave evidence to the Committee, it was put to them, accurately, that there is a great lack of adequate data gathering in Australia, as in other countries too. So when he says there have been no complications in Australia, what he means is that there have been no reports of complications in Australia. As we always need to point out, absence of evidence is not evidence of absence.
Kim Leadbeater
That question was indeed put to the experts from Australia, but actually they were quite clear that there is a huge amount of evidence. Indeed, there is a very robust reporting mechanism in Australia—the best in the world, I suggest—so there is a huge amount of evidence from that jurisdiction.
Danny Kruger
Let us not rehash the conversations that we had in the evidence sessions, but I would advise Members to review those conversations. Indeed, there is further publicly available evidence, which I am happy to share, of the problems with data collection in Australia, as in other countries. To the point of the hon. Member for Stroud about the evidence of complications that arise in other jurisdictions being irrelevant to our discussions, because of the lack of clarity in the Bill about what drugs would be used to bring about the assisted suicides that we are proposing to legalise, all we can do is rely on evidence from abroad, and I will insist on doing so.
As well as questions about complications and side effects, there is also a crucial question about how long it takes to die. In Canada, a study demonstrated that in 5% of cases, patients experienced a prolonged time to death. Another study showed that 50% of cases in Canada with available data—again, there is a lack of data—were unsuccessful within 60 minutes. It is clearly common in other countries for death to take up to or more than an hour.
The Canadian Association of MAiD Assessors and Providers—the people who do it—acknowledged that patients who ingest assisted suicide drugs can experience burning, nausea, vomiting and regurgitation. I am not saying that that always happens, or that it happens in the majority of cases, but it clearly happens. It is therefore appropriate for patients to be properly informed of those risks, if they are associated with the drugs that will be used. We do not know what those are going to be at this stage.
In the Netherlands, where assisted dying or assisted suicide has been legal for 20 years, a third of people with assisted suicide deaths experience some adverse symptoms such as pain, restlessness, shortness of breath, secretions, nausea and vomiting—that is, a third of people experienced some of those distressing side effects as they died, so it is very far from a guarantee of a pain-free death. It is vital that people considering an assisted death are aware of those possible effects, in addition to the primary effect of the drugs which is, of course, to kill them.
There is also a question about the method of administration. People should know that where regimes use the intravenous route of a short-acting anaesthetic, that is also not without problems. People would understand, and potentially argue for, having an anaesthetic as the first part of the cocktail of drugs that will be administered, but evidence from abroad demonstrates that the anaesthetic induction agent, which is usually propofol, a drug that puts people to sleep before surgery, can wear off rapidly in some people, particularly in younger patients, those who are less ill and those who are larger in size.
In around two thirds of assisted deaths with administrations that use that technique, that anaesthetic is rapidly followed by a paralysing agent. The patient cannot then move a muscle and, unable to breathe at all, they die of asphyxia. Unfortunately, there has been no monitoring of patients while they are given those drugs to ascertain whether they regain consciousness as they die. They cannot move a muscle, so they cannot signal distress. We are unclear what the experience of the dying person is beneath the apparent calm that has been induced in them by the paralytic drug that they have been given.
We do know, however, that similar combinations have been used in judicial executions. Post mortems have shown, as reported in The Lancet in 2005, that the level of anaesthetic induction agent in the blood at the time of death was lower than that required for surgery in 88% of executed inmates. Shockingly, in 43%, the concentrations were consistent with awareness, meaning they may have suffered during the execution.
Dr Opher
The hon. Gentleman is bringing up lots of rather horrible stories about assisted death. That is why, in Australia, Switzerland and Holland, they have decided, instead of using the regime that he is talking about, to use pentobarbital. At 15 grams, that has not had any failures—no one has woken up. The only real side effect that people complain of before they go to sleep, which happens very quickly, is that it is very bitter. One of the reasons why Dignitas uses it is that it is so effective and it does not have those effects. I would push back on some of those scare stories.
Danny Kruger
I am afraid to say that the whole debate about assisted dying is replete with scare stories. The hon. Gentleman says that they are descriptions of horrible events, but that is the situation that we are dealing with. We are here to try to pass legislation that is designed to avert horrible deaths. I am absolutely committed to that as well, but the evidence from abroad shows that people can also have a horrible death with assisted dying.
The hon. Gentleman points to Australia, but the evidence from Western Australia in particular is that over 4% of assisted deaths reported complications. He might be right that it is a better regime than that used in the United States, but even there complications occur. We do not know yet what the regime will be here, but I am alerting the Committee to the genuine danger of an assisted dying regime that induces very unpleasant results for patients.
Jack Abbott (Ipswich) (Lab/Co-op)
The hon. Member may be surprised to hear that I am inclined to support his amendment 362 and amendment 142 tabled by my hon. Friend the Member for Broxtowe, not because of, in the words of my hon. Friend the Member for Stroud, the scare stories or the examples that the hon. Member has been giving, but predominantly because of what the amendment says on the tin: that a person must be given a full explanation of the risks of complications and how a substance should be administered. As I have said a number of times in Committee—
Jack Abbott
It is an intervention, Ms McVey. My plea to the hon. Member is to focus on exactly what the amendment states. I appreciate all the stories and examples that he wishes to make, but it is important to reflect on the words of the amendment. As I said, I am minded to support it.
Danny Kruger
I am grateful to the hon. Member for his intervention.
Amendment 306, tabled by the hon. Member for York Central, addresses the question of what to do in the event of complications. I recognise that clause 9 states that that must be discussed, which I welcome. I think, though, that there is a significant absence that this amendment would address, which is what to do in the event of complications—specifically, which intervention would be appropriate.
Here we get into a very difficult area. I personally find it difficult to understand a way out of it, because it is a consequence of the sort of legislation that we are considering: what do we do when complications arise? Specifically, what do we do when the patient does not die and is still alive some hours later, possibly in distress? I have cited evidence about some of the complications that occur and the prevalence—for example, that 10% of such people in Oregon experience complications, including some who simply wake up again. We need to resolve this. On explaining possible side effects and complications, under the Bill as it stands none of the declarations that are signed by the doctors or the person requesting assistance confirm in writing that the criterion has been met for proper communication, so that is one concern.
My more substantial concern—I will finish with this—is that at the moment the doctors have to explain the complications, even though we do not know what the drugs are going to be yet, but they cannot discuss or decide with the patient what they would do in the event of complications. We know that the doctor must be present at the end or in the next room, but can they halt the process if complications arise—if the patient wakes up or is exhibiting signs of distress? That would be against the last known wishes of the patient who had said that they wanted to go ahead with the death. Should the doctor expedite the death knowing that that is what the patient theoretically wanted? Of course not, because that would be euthanasia; it would be the doctor actually killing the patient, which is illegal under the Bill. Do they stand by and do nothing at all, which goes against the doctor’s obligations to address symptoms and illness in a patient? If the patient is fitting or vomiting, the doctor would normally clear their airways. Should they do that, knowing that that might bring the patient back to life—that it might resuscitate them and stop the assisted death?
When we debate clause 18, we will discuss the process of the assistance that the doctor gives, but we are obliged, when we come to debate the Bill fully, to choose between three options. We could allow complications without any guidance, which is what the Bill does; that raises all sorts of challenges, and practical and ethical concerns, for doctors. We could stipulate that the patient should be revived, perhaps if a certain degree of distress is witnessed or if the patient is still alive after a certain period of time. Finally, we could allow euthanasia and say that, in that event, the doctor should be authorised to expedite the death. I do not know what the option should be. That is a question that a doctor would have to face in reality, in the bedroom of a patient who is exhibiting complications. I do not know what to do, but I do not think we should be proceeding with this Bill. Those who do believe in it have to answer this question: what does a doctor do if a patient is exhibiting distress and not dying—do they bring them back to life, expedite their death or do nothing?
Danny Kruger
We might appear to be dancing on a pinhead, but this goes to the heart of the question about what on earth we do in the event of complications. As the hon. Member for Spen Valley says, the Bill as drafted says that discussions should be had about wishes in the event of complications. That might simply be, “Do you want us to call somebody? Do you want us to try to make you more comfortable?” The amendment would require a discussion of escalation—what further medical interventions might be appropriate in the event of complications arising. There is a huge question for us, which we have not yet had answered, about what on earth should be the range of options for a doctor. The importance of the amendment is to specify that there may be further medical interventions in the event of complications. Does the hon. Lady agree that that is the value of it?
Dr Opher
We are not doing that in situations of terminal care—we are allowing someone to die. We are very experienced in allowing people to die. I have done it for 25 years. It is not a new skill just because we have the assisted dying element. We deal with the situation as it arises.
Danny Kruger
The hon. Gentleman puts his finger on a key point. The hon. Member for Bradford West is absolutely right: surely the hon. Gentleman acknowledges that there is a difference between allowing somebody to die and giving them lethal drugs that make them die. I am sure he would acknowledge the practical, if not the moral, distinction between the two. He says he has lots of experience of helping people to die; has he ever had experience of watching somebody die after administering them lethal drugs? No.
Dr Opher
No, I have not, because that is currently illegal—this Committee is about changing that—but I have sat with patients who have slowly died. It is not about whether we get an ambulance; we know we do not do that. We are allowing the patient to die, and if something happens that involves having to help them, we just do it. We do not need to specify that in the Bill: it is part of normal medical practice.
Stephen Kinnock
The basic position of the Department of Health and Social Care and, by extension, the Government is that we rely on and trust our medical professionals to make judgments and do the right thing. They take the Hippocratic oath, so they are going to do what is right for the patient in the circumstances of their interaction with that patient. That is set out in guidance and in the corpus of law that we already have. There is a risk of destabilising the system by introducing measures that may well cause confusion and muddy the waters when the waters do not need to be muddied.
Danny Kruger
I am afraid that the waters are pretty muddied by the Bill. It states a direct contradiction of the Hippocratic oath, which requires doctors to save people’s lives and do nothing to bring about their death—including giving them lethal drugs. It is right there in the Hippocratic oath. There is obviously a real challenge if somebody has had assisted death drugs and then exhibits complications—if they are not dying quickly, for example, or are showing distress. Normally, the obligation on a doctor would be to relieve their symptoms and try to bring them back to life. Is the Minister saying that is what they should do—and if not, what should they do?
Stephen Kinnock
There is a debate to be had about the Bill’s effect on support for a patient. I am not here as a member of the Government to comment on the rights and wrongs of that, but those who support the Bill would argue that a doctor participating in and facilitating assisted dying is actually helping the patient and is, therefore, absolutely aligned with the Hippocratic oath, which is to do no harm. That is in the eye of the beholder, as I am sure the hon. Member would agree, and it is not my job to get into the whys and wherefores of the philosophy that underpins the Bill.
Danny Kruger
I beg to move amendment 307, in clause 9, page 6, line 18, leave out from beginning to “advise” and insert
“unless the assessing doctor has concluded in good faith, that this would not be in the person’s best interests.”
This amendment would require the assessing doctor to inform the person’s next of kin that the person wishes to seek assistance to end their own life unless it is not in the person’s best interests.
The Chair
With this it will be convenient to discuss amendment 308, in clause 9, page 6, line 20, at end insert—
“(g) If that doctor considers that it is not in the person’s best interests under paragraph (f), this decision and the doctor’s reasoning must be documented.”
This amendment is consequential to Amendment 307 and would require a decision that it is not in the person’s best interests to inform their next of kin to be documented with its reasoning.
Danny Kruger
Amendments 307 and 308 concern the question of who should be informed when an application has been made or when an assisted death has been approved, and at what stage it is appropriate for family members or next of kin to be informed. During the debate on clause 8, we discussed whether a patient should be asked to state whether they have informed their family.
I think it is appropriate to have a stronger requirement for doctors to notify a patient’s next of kin. Amendment 307 would remove the phrase
“in so far as the assessing doctor considers it appropriate,”
leaving that they should
“advise the person to consider discussing the request with their next of kin”.
Amendment 308 is either supplementary to amendment 307 or could work in isolation, because it states:
“If that doctor considers that it is not in the person’s best interests under paragraph (f), this decision and the doctor’s reasoning must be documented.”
These are important amendments because they communicate the truth that it is not just the patient who is affected by an assisted death; I suggest that others are affected. Conversely, behind that apparently autonomous individual patient, who might think they are acting with absolute autonomy and without reference to others, there may somebody who is exercising undue influence on them.
To me, these amendments speak to the essential tension at the heart of the Bill: whether we are talking about isolated individuals or recognising the reality that no man or woman is an island. We are all connected and we all have obligations, whether as a society to the people who will be involved in the administration of the procedure or, more directly and obviously, to family members or to the patient themselves, to be sure they are not subject to undue influence. There are many ways to try to identify undue influence, but one important one that would be addressed by this amendment is the opportunity to involve a person’s wider family in the discussions leading up to their assisted death.
Jake Richards (Rother Valley) (Lab)
The amendment that the hon. Member is supporting speaks of a doctor having to consider what is
“in the person’s best interests”,
which is wholly subjective. Does he not agree that the same difficulties he identifies with the current drafting are extrapolated greatly by the amendment?
Danny Kruger
I am afraid there is a huge degree of subjectivity throughout the Bill, and we are putting an enormous obligation on doctors to use their best judgment. However, I think it is right to stipulate more clearly that it is appropriate, in general, to inform patients’ families. Leaving the vague term “appropriate” essentially implies that it is either/or—that it is a 50:50 choice whether they do so. So it is important to specify that the expectation is that they should do so. Of course, there will be circumstances in which that would not be the right thing to do, but as the amendments make clear, they should explain that clearly if they are not going to do so.
A doctor might hesitate to suggest a discussion with family if they suspect that there are strained relationships within it. My concern is that, without clear guidance, that judgment could be inconsistent or legally challenged. The doctor might know the next of kin and believe that they would try to stop the patient from ending their life. We have heard quite often the concern about the family being some sort of coercive force, trying to prevent people from fulfilling their autonomous choice to end their life, and that we should put in place barriers to stop families trying to dissuade their loved one from assisted suicide. We heard that repeatedly, particularly from the Australian witnesses.
My concern—this goes specifically to certain communities within our country—is that doctors from individualistic cultures, which we have in western Europe and North America, would prioritise personal autonomy. They would deem it inappropriate to suggest family involvement, viewing that as an intrusion on the patient’s rights. We need to state clearly that that is not the expectation and that the expectation is that they should consider involving the family in the discussion.
My concern is also about an exaggerated respect for medical confidentiality. As the Committee knows, my belief is that this is not a healthcare treatment at all, but if it is to be regarded as such, we should not assume that medical confidentiality applies in an absolute sense. There are specific differences between this so-called medical treatment and others, which do justify an override of the assumption of total medical confidentiality. It is therefore appropriate, as in certain other medical procedures, that family members should be involved.
I want to cite the written evidence from Dr Rosemarie Anthony-Pillai, who pointed out that clause 9
“lays bare the reality that in trying to, rightly, diminish any accusation of coercion or family disagreement, this Bill will lead many to a lonely death.”
She also said:
“Families/loved ones finding out only after the event how the person died will have its own bereavement issues that this Bill in no way seeks to consider.”
I also cite the written evidence we had from AtaLoss, which is a UK charity dedicated to ensuring that bereaved people can access support. It said that discovering the decision that somebody has had help to take their own life without prior warning
“can replicate the distress often associated with sudden or suicide-related deaths, thereby intensifying bereavement trauma and potential suicide contagion.”
That is a very significant threat. We will not rehash the argument about whether suicide increases in countries with assisted suicide, but my strong view, from the evidence, is that it does.
In terms of the patient’s safety, if the process is kept secret even from those who know the patient well, the assessing doctors and the panel will be asking very difficult questions about the patient’s feelings and circumstances partly blindfolded. If a patient is in a controlling relationship, they and the person abusing them are not going to volunteer to the doctor or the panel that there is any pressure going on—indeed, the patient may not even understand it to be pressure. It is very common for an abusive partner to try to isolate the victim from their close friends and family. The hon. Member for Ealing Central and Acton (Dr Huq) wrote recently about how this has come up in her constituency. The ex-husband of her constituent’s sister reappeared on the scene, charmed and isolated this woman, and got her to change her will in his favour. That is a technique of coercive control. Some level of required notification to the wider family would make it much harder for a controlling partner to push someone through this process without it being exposed.
It was made clear earlier today that the Bill’s supporters do not want any hard-edged reasons that count as bad reasons to die to be stated in the Bill—they do not want it asked at all why someone wants to have an assisted death. As it stands, the doctors and the panel would have to approve the death as long as it was the patient’s clear, settled and informed wish, but involvement of those who know the patient well might demonstrate that it was not clear, settled or informed. They may have regularly gone through patches of feeling unloved and unsupported all their life, and that could change. That is information that only the wider family would know.
To conclude, there is real suffering hereto—as I have said, nobody exists in a vacuum. I want to reference the opinion of Judge Elósegui in the European Court of Human Rights. Her opinion was a partial dissent in the Mortier case, which has been discussed before. She said:
“it should be underlined that it cannot be said in an exhaustive way that the principle of autonomy always and at all costs has primacy over the other three principles of bioethics. In particular, we must take into account the consequences of our actions on the rest of the family unit and on our circle of friends.”
That is highly relevant. If we see cases where somebody dies by assisted suicide, and the first thing their child or parent knows about it is they are told to come and collect the body, that will be a scandal. That has happened in other countries, and the Mortier case is a case in point.
I mentioned other cases in which it is obligatory to consult and inform family members. At the moment, that is what happens at the Court of Protection with much less serious applications. Practice directive 9B requires doctors to notify
“at least three persons who are likely to have an interest in being notified”.
That is in the case of organ donation and other procedures. Families are required to be notified, and an indicative list is given, which is supposed to be worked through in order—spouses, people who live with as a spouse, parents, children and so on. The authorities are to jump along through that list, again with some discretion given to them.
To end, on the standard guidance referred to in judgments on that procedure, the judgement of Senior Judge Lush in the Court of Human Rights included the observation that the decision not to notify someone who would otherwise be entitled to be notified is not something that just affects the applicant. It is not just about their interests; there is a wider concern for the whole of society and indeed the family. That is why I support the amendment.
Dr Opher
I thank my hon. Friend the Member for York Central for tabling the amendment. The crucial word that the hon. Member for East Wiltshire said in all that was “should”. It is really important that people are strongly encouraged to discuss this with their families. Clause 9(2)(f) states that
“in so far as the assessing doctor considers it appropriate, advise the person to consider discussing the request with their next of kin and other persons they are close to.”
I totally support all that the hon. Member said: the family should always be involved in every decision. However, in the way we practice medicine in this country, if a patient has capacity—if they are not under a section under the Mental Health Act, for example, and can show that they have capacity—they can make decisions about their own healthcare. That involves whether they tell their family.
I agree that not to tell the family is not the best thing and not something I would say that the patient should do, but that is in their remit. It is important because, if we change that, we get rid of all the basis and the foundation of medical care and consent in this country. I agree wholeheartedly with the hon. Member, and I am a strong supporter of the family—I also think that in almost every situation the family will be involved—but the patient does not have to tell the family. That must remain part of their decision.
Danny Kruger
As ever, the hon. Gentleman speaks very powerfully. Does he acknowledge that under the amendments, and under the Bill, it would be possible for a patient to proceed without informing their wider family, if they and the doctor conclude that it is not appropriate or necessary? The value of the amendments is that they would require a conversation to be had about why that is not happening. Does the hon. Gentleman not recognise that such a conversation would be appropriate?
Jake Richards
I agree. I think in some of these debates—I am probably guilty of this as well—we forget the context in which we are operating: someone is dying, imminently. Therefore, how we approach these conversations, these assessments and this process must take that into account.
Danny Kruger
The hon. Gentleman accurately points out that doctors are not social workers or psychiatrists, and we are asking them to make a difficult judgment, in consultation with the patient, about whether they should engage wider family in the discussion. That goes to the broader point: we are imposing a huge obligation on doctors to make very complicated decisions about capacity, coercion and the psychosocial circumstances of the patient. The value of this amendment’s saying, “I think we should involve the family if it is safe to do so”—it might very well not be in certain circumstances—is surely to assist them in having the wider conversation that is necessary.
Kim Leadbeater
I have nothing to add, other than that I will not be supporting amendments 307 and 308. I associate myself with the comments made by my hon. Friends the Members for Rother Valley, for Stroud and for Sunderland Central.
Danny Kruger
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 423, in clause 9, page 6, line 20, at end insert—
“(2A) To inform their assessment, the assessing doctor must—
(a) consider whether they should consult a health professional or social care professional with qualifications in, or experience of, a matter relevant to the person being assessed;
(b) consult such a professional if they consider that there is a need to do so.
(2B) Where an assessing doctor consults a professional under subsection (2A)(b), the assessing doctor must give a written record of the consultation to the other assessing doctor.”—(Kim Leadbeater.)
This amendment requires the assessing doctor to consider whether they should consult specialist health or social care professionals, and to consult them if they consider there is a need to do so. A record of any consultation must be shared with the other assessing doctor.
Amendment 415, in clause 9, page 6, line 20, at end insert—
“(2A) When making an assessment under subsection (2), the assessing doctor must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters.”—(Jack Abbott.)
Amendment 6, in clause 9, page 6, line 27, leave out “may” and insert “must”.—(Sarah Olney.)
This amendment would require the assessing doctor to refer the person being assessed for a mental capacity assessment if the assessing doctor had doubt as to the person’s capacity.
Amendment 370, in clause 9, page 6, line 29, leave out
“registered in the specialism of psychiatry”
and insert
“a practising psychiatrist registered in one of the psychiatry specialisms”.
This is a drafting change.
Amendment 202, in clause 9, page 6, line 31, leave out “capability” and insert “capacity”.—(Kim Leadbeater.)
This amendment corrects a typographical error.
Clause 9, as amended, ordered to stand part of the Bill.
Clause 10
Another independent doctor: second opinion
Amendments made: 203, in clause 10, page 6, line 42, at end insert—
“(A1) This section applies where the independent doctor has—
(a) carried out the second assessment, and
(b) made a report stating that they are not satisfied as to all of the matters mentioned in section 8(2)(a) to (e).”
This amendment is consequential on Amendment 421.
Amendment 204, in clause 10, page 6, line 43, leave out from beginning to second “the” in line 44.—(Kim Leadbeater.)
This amendment is consequential on Amendment 203.
Amendment proposed: 458, in clause 10, page 6, line 45, after “declaration” insert “and if there has been a material change of circumstances,”.—(Sarah Olney.)
Question put, That the amendment be made.
Danny Kruger
I want to speak briefly in support of the hon. Lady’s amendment and also in support of amendment 310, tabled by the hon. Member for York Central. The hon. Member for Richmond Park is absolutely right. I will not rehearse her argument, which is very straightforward. The question is: what other reason could there be to justify a co-ordinating doctor transferring the case? The Committee might reject that amendment, in which case I hope they will accept the amendment tabled by the hon. Member for York Central, which specifies that whatever the reason, particularly if it is other than death or illness, it is important for the High Court or the panel to be notified of the substitution and the reason why.
Sarah Green (Chesham and Amersham) (LD)
Maternity leave is one reason and retirement might be another.
Danny Kruger
Those might be appropriate reasons; I hope that can be specified. The crucial thing is that if there is an unwillingness—not an incapacity but an unwillingness—to proceed, that is of some concern. It is not that they are no longer able to do it—possibly for the reasons that the hon. Lady suggested—but if there is an actual unwillingness to proceed, what is the reason?
On amendment 309, if the first doctor is replaced for whatever reason, surely it is imperative that the new doctor conduct their own assessment, rather than taking the previous doctor’s word for it. A doctor is legally responsible, obliged under all medical regulation and law for their actions, and they cannot rely on a previous assessment. If the first doctor gave up the case because of some kind of incapacity—an illness, or, indeed, their demise—it might be that their own judgment was impaired at the time. I would have thought it was obvious that the new doctor should take responsibility for conducting an assessment and proceeding with full responsibility for the case.
Naz Shah
I rise to speak to amendment 309 tabled by my hon. Friend the Member for York Central. The amendment proposes that if a doctor changes, there should be a reassessment of the patient. My understanding is that that is in line with current practice: if a doctor is changed, the new doctor has to assess a patient to their own satisfaction because they cannot rely on just looking at notes. It is a sensitive issue where a doctor is required to make objective and subjective assessments, as has been agreed by the Committee to date, in clinical decision making. A clinician does not inherit the risk of another clinician without being satisfied themselves that the conclusion of another clinician aligns with their own.
For instance, the clinician has a responsibility to fulfil their own professional standards and their own duty of care. In the light of the significant impact of the decision, it is important that the doctor can be satisfied as they will need to consent to a patient having capacity and not being coerced. They cannot just take the word of another clinician who has managed the case before them. They themselves need to be satisfied. If a doctor does not do that and something goes wrong, and it comes to light that the patient did not have capacity, the clinician who is the new co-ordinating doctor would carry liability. It does not stand up if they say, “But someone else assessed that the patient had capacity” or, “Someone else said that the patient had not been coerced” if it comes to light later that they have.
This measure would therefore protect the clinician and ensure that the patient understood that a further assessment would need to take place. Having this measure in law would hopefully dissuade doctors from transferring their patients unless absolutely necessary for the continuity of care. It would also dissuade the clinician from taking on a new case if they were aware that continuity of care would be disrupted, due to, for example, a move.
Danny Kruger
I beg to move amendment 432, in clause 12, page 8, line 31, leave out paragraph (a).
This amendment is linked to amendments which remove proxies from the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 433, in clause 19, page 13, line 26, leave out subsection (4).
This amendment is linked to amendments which remove proxies from the Bill.
Amendment 434, in clause 36, page 22, line 16, leave out paragraph (c).
This amendment is linked to amendments which remove proxies from the Bill.
Danny Kruger
I recognise that we are moving on and that we want to get on to the substantive clauses, and I certainly will not press these amendments to a vote. However, I want to put on record that I have extreme concerns about the role of the proxy in clause 15. It is unclear to me why a proxy is needed. I regret that we are not sticking with the High Court process, which would have enabled us to debate these amendments at this stage, but I will let it pass.
Sarah Sackman
Amendments 432 to 434 would remove provisions regarding proxies from the Bill. They deal with proxies in the context of the High Court process. As a consequence, the High Court would be unable to hear from the person’s proxy where the proxy has signed the first declaration, and the person would be unable to use a proxy to authorise a medical practitioner to provide assistance to end their own life. Removing the ability for persons seeking assistance to use a proxy would limit access to the assisted dying process for people who, for example, have a physical impairment, are unable to read or are for some other reason unable to sign the declaration. As I said earlier, the Government remain neutral, but I hope that provides some context and an explanation of how the amendments would operate.
Kim Leadbeater
I will be brief, because we will come on to this debate when we get to clause 15. To be clear, the circumstances where a proxy would be involved in this process are literally when somebody is so ill that they are unable to sign their own name, so it is a very limited set of circumstances.
Danny Kruger
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Danny Kruger
I beg to move amendment 312, in clause 12, page 8, line 34, at end insert—
“(7A) Any person who wishes to challenge an application for a declaration under subsection (1) must enter a caveat in any district registry of the High Court within 14 days of the application being lodged or received, stating their belief that the requirements of this Act have not been met in relation to the first declaration, with specific reference to the matters listed in subsection (3).
(7B) Where a caveat is entered under subsection (7A), the High Court must hear from the person who has entered the caveat in addition to those persons listed in subsections (5) and (6).”.
This amendment would allow a person who believes that the requirements of the Act have not been met to make this known to the High Court and be heard before a declaration is made.
The Chair
With this it will be convenient to discuss the following:
Amendment 269, in clause 12, page 8, line 35, leave out subsections (8) to (11) and insert—
“(8) Any party to the proceedings may apply for permission to appeal to the Court of Appeal in accordance with the applicable Rules of Court.”.
This amendment would allow any party to apply for permission to appeal a decision and remove the requirement for the Court of Appeal to conduct a re-hearing.
Amendment 313, in clause 12, page 9, line 1, leave out subsection (11).
This amendment would enable appeals to be heard against a decision by the High Court to make a declaration.
Danny Kruger
Again, I will not press this amendment; I just want to put on record my support for the principle. This amendment, tabled by the hon. Member for York Central, is quite a clever device: if we were sticking with the High Court, it would have meant that someone with genuine concerns, for example a family member or acquaintance of a patient, could flag them without needing to be informed that the application was going ahead.
As we have discussed, there is a concern about these proceedings happening in the dark, as it were, without wider family being informed. If a family member suspected that there might be an assisted dying application in the works and that they were being excluded from consideration or discussion of that, there would have been the opportunity to put on record their concern, which would have required the judge to take a wider consideration than would be enabled without this amendment. I regret that that is not happening, but it may be possible through the course of the Bill to ensure that there will be further opportunities to introduce such measures. I welcome that new clause 21 would impose a requirement on the panel to consider family members, so there is an element of the right system there.
Sarah Sackman
Amendments 312 and 313 would make several changes to the process for High Court approval of applications under the Bill as drafted. Amendment 312 would allow a person who believes that the requirements of the Act have not been met to make that known to the High Court and to be heard before a declaration is made. The proposed mechanism is that the person would enter a caveat in any district registry of the High Court within 14 days of the application being lodged or received.
Of course we will come to later amendments, but under the Bill as drafted, the High Court has the power to hear from and question any person to determine whether the applicant has a clear, settled and informed wish to end their own life, and that they have not been pressured or coerced, so there is that mechanism to hear from others through that channel.
Amendment 313 would enable appeals to be made against a decision by the High Court to make a declaration, as opposed to only where a declaration is not granted. As drafted, the Bill provides that any person may seek a judicial review of any decision of the High Court, including the decision to make a declaration, if they are adjudged to have standing.
Amendment 269 would enable any person, other than the person seeking assistance, to apply for permission to appeal to the Court of Appeal against a decision of the High Court. The amendment would also enable appeals to be made against a decision by the High Court to grant a declaration, as opposed to only where a declaration is not granted. The Court of Appeal would not be obliged to consider the matters set out in the Bill when forming its decision. It is important to say that whether with or without the amendment, any person may still seek a judicial review of any decision of the High Court, if they are adjudged to have standing.
Danny Kruger
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 371, in clause 13, page 9, line 5, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person, and”.
This amendment is consequential on NC21.
Amendment 61, in clause 13, page 9, line 5, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 372, in clause 13, page 9, line 12, leave out from third “the” to end of line 13 and insert
“certificate of eligibility was granted,”.
This amendment is consequential on NC21.
Amendment 62, in clause 13, page 9, line 13, leave out from “the” to “or” in line 14 and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 373, in clause 13, page 9, line 17, leave out “declaration was made” and insert “certificate was granted”.
This amendment is consequential on NC21.
Amendment 377, in clause 16, page 11, line 12, leave out paragraph (d) and insert—
“(d) a certificate of eligibility has been granted in respect of a person;
(da) a panel has refused to grant such a certificate;”.
This amendment is consequential on NC21.
Amendment 63, in clause 16, page 11, line 12, leave out “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 378, in clause 18, page 12, line 9, leave out paragraph (a) and insert—
“(a) a certificate of eligibility has been granted in respect of a person,”.
This amendment is consequential on NC21.
Amendment 64, in clause 18, page 12, line 9, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 381, in clause 27, page 16, line 16, leave out sub-paragraph (iii) and insert—
“(iii) a certificate of eligibility,”.
This amendment is consequential on NC21.
Amendment 65, in clause 27, page 16, line 16, leave out from “the” to “under” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 388, in clause 34, page 20, line 40, leave out paragraph (c) and insert—
“(c) a panel has refused to grant a certificate of eligibility;”.
This amendment is consequential on NC21.
Amendment 66, in clause 34, page 20, line 40, leave out from “the” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 390, in clause 40, page 23, line 24, at end insert—
“‘certificate of eligibility’ has the same meaning as in section (Determination by panel of eligibility for assistance);”.
This amendment is consequential on NC21.
Amendment 391, in clause 40, page 23, line 24, at end insert—
“‘the Commissioner’ has the meaning given by section (Voluntary Assisted Dying Commissioner);”.
This amendment is consequential on NC14.
New clause 14—Voluntary Assisted Dying Commissioner—
“(1) There is to be a Voluntary Assisted Dying Commissioner.
(2) The Commissioner is to be appointed by the Prime Minister.
(3) The person appointed must hold or have held office as a judge of—
(a) the Supreme Court,
(b) the Court of Appeal, or
(c) the High Court.
(4) The Commissioner’s principal functions are—
(a) receiving documents made under this Act;
(b) making appointments to a list of persons eligible to sit on Assisted Dying Review Panels (see Schedule (Assisted Dying Review Panels));
(c) making arrangements in relation to such panels and referring cases to them (see section (Referral by Commissioner of case to multidisciplinary panel));
(d) determining applications for reconsideration of panel decisions under section (Reconsideration of panel decisions refusing certificate of eligibility);
(e) monitoring the operation of this Act and reporting annually on it (see section 34).
(5) In this Act “the Commissioner” means the Voluntary Assisted Dying Commissioner.
(6) Schedule (The Voluntary Assisted Dying Commissioner) makes provision about the Commissioner.”.
This new clause provides for there to be a Voluntary Assisted Dying Commissioner.
New clause 15—Referral by Commissioner of case to multidisciplinary panel—
“(1) This section applies where the Commissioner receives—
(a) a first declaration made by a person,
(b) a report about the first assessment of the person which contains a statement indicating that the coordinating doctor is satisfied as to all of the matters mentioned in section 7(2)(a) to (g), and
(c) a report about the second assessment of the person which contains a statement indicating that the independent doctor is satisfied as to all of the matters mentioned in section 8(2)(a) to (e).
(2) The Commissioner must, as soon as reasonably practicable, refer the person’s case to an Assisted Dying Review Panel for determination of the person’s eligibility to be provided with assistance under section 18.
(3) But where the Commissioner receives a notification that the first declaration has been cancelled—
(a) the Commissioner must not refer the person’s case to such a panel, and
(b) if the person’s case has already been so referred, the Commissioner must notify the panel of the cancellation.
(4) Schedule (Assisted Dying Review Panels) makes provision about Assisted Dying Review Panels.”
This new clause provides for the Voluntary Assisted Dying Commissioner to refer a person’s case to a multidisciplinary panel, to be called an Assisted Dying Review Panel.
New clause 17—Reconsideration of panel decisions refusing certificate of eligibility—
“(1) This section applies where—
(a) a person’s case is referred under section (Referral by Commissioner of case to multidisciplinary panel) to an Assisted Dying Review Panel (“the first panel”), and
(b) the first panel refuses to grant a certificate of eligibility in respect of the person.
(2) The person may apply to the Commissioner for their case to be reconsidered on the ground that the first panel’s decision—
(a) contains an error of law,
(b) is irrational, or
(c) is procedurally unfair.
(3) The Commissioner must consider an application without a hearing.
(4) On the application—
(a) if the Commissioner is satisfied that any of the grounds mentioned in subsection (2) applies, they must as soon as reasonably practicable refer the person’s case to a different Assisted Dying Review Panel for a fresh determination under section (Determination by panel of eligibility for assistance);
(b) in any other case, the Commissioner must dismiss the application.
(5) The Commissioner must give reasons, in writing, for their decision.
(6) The Commissioner must notify the following of the outcome of the application, and give them a document containing their reasons for their decision—
(a) the person who made the application;
(b) the coordinating doctor;
(c) any other person specified in regulations made by the Secretary of State.”
This new clause provides for certain decisions of Assisted Dying Review Panels to be referred to a different panel for reconsideration.
Amendment (a) to new clause 17, leave out subsections (1) to (3) and insert—
“(1) The person applying for assisted dying, their next of kin, any of their relatives (within the meaning of the Family Law Act 1996), the registered medical practitioners who are treating them and anyone who took part in proceedings before the panel or gave evidence to the panel may apply to the Commissioner for the Panel’s decision to be reconsidered.
(2) The Commissioner will allow the application for reconsideration if the Panel’s decision was—
(a) wrong, or
(b) unjust because of a serious procedural or other irregularity in the proceedings.
(3) The Commissioner may consider the application without a hearing if they consider it in the interests of justice to dispense with a hearing.”
New clause 21—Determination by panel of eligibility for assistance—
“(1) This section applies where a person’s case is referred under section (Referral by Commissioner of case to multidisciplinary panel) or (Reconsideration of panel decisions refusing certificate of eligibility) to an Assisted Dying Review Panel (“the panel”).
(2) The panel’s function is to determine whether it is satisfied of all of the following matters—
(a) that the requirements of sections 5 to 9 have been met in relation to—
(i) the first declaration,
(ii) the first assessment and the report under section 7 on that assessment, and
(iii) the second assessment and the report under section 8 on that assessment;
(b) that the person is terminally ill;
(c) that the person has capacity to make the decision to end their own life;
(d) that the person was aged 18 or over at the time the first declaration was made;
(e) that before making the first declaration, but when the person was aged 18 or over, a registered medical practitioner conducted a preliminary discussion with the person;
(f) that the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration;
(g) that the person is registered as a patient with a general medical practice in England or Wales;
(h) that the person has a clear, settled and informed wish to end their own life;
(i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person into making that declaration.
(3) Subject to the following and to Schedule (Assisted Dying Review Panels), the panel may adopt such procedure as it considers appropriate for the case.
(4) The panel—
(a) must hear from, and may question, the coordinating doctor or the independent doctor (and may hear from and question both);
(b) must (subject to subsection (5)) hear from, and may question, the person to whom the referral relates;
(c) in a case to which section 15 applies, may hear from and may question the person’s proxy;
(d) may hear from and may question any other person;
(e) may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.
In paragraphs (a) to (c) the reference to hearing from or questioning a person is to hearing from them, or questioning them, in person or by live video or audio link.
(5) The duty under subsection (4)(b) to hear from the person to whom the referral relates does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person.
(6) The panel—
(a) must, if it is satisfied of all of the matters mentioned in subsection (2), grant a certificate to that effect (a “certificate of eligibility”);
(b) must refuse to do so in any other case.
(7) The panel must notify the following of its decision—
(a) the person to whom the referral relates;
(b) the coordinating doctor;
(c) the Commissioner;
(d) any other person specified in regulations made by the Secretary of State.
Where it grants a certificate of eligibility, it must give a copy of the certificate to each of these persons.
(8) If the panel is notified that the first declaration has been cancelled, it must cease to act in relation to the referral (and, in particular, it may not grant a certificate of eligibility).”
This new clause provides for a person’s eligibility to be provided with assistance under clause 18 to be determined by a multidisciplinary panel (instead of the High Court).
Amendment (d) to new clause 21, in subsection (4), leave out paragraphs (a) to (e) and insert—
“(a) must hear from, and must question, the coordinating doctor and the independent doctor;
(b) must (subject to subsection (5)) hear from, and must question, the person to whom the referral relates;
(c) in a case to which section 15 applies, must hear from and must question the person’s proxy;
(d) must consider hearing from and questioning—
(i) persons properly interested in the welfare of the person who made the application for the declaration and other persons they are close to; and
(ii) any other person who has provided treatment or care for the person being assessed in relation to that person’s terminal illness; and
(e) may hear from and may question any other person, including any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.”
Amendment (c) to new clause 21, in subsection (4), after paragraph (e) insert—
“(aa) if it considers that the matters mentioned in subsection 2(c), (h) or (i) are established on a balance of probabilities but still considers that there is a real risk that they are not satisfied, then the panel must stay its proceedings until such further inquiries it orders are made,”.
Amendment (e) to new clause 21, after subsection (4) insert—
“(4A) Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4).”
Amendment (a) to new clause 21, in subsection (6)(a), after “satisfied” insert “beyond reasonable doubt”.
Amendment (b) to new clause 21, in subsection (6)(a), after “subsection (2)” insert
“unless it believes that there are particular circumstances which make it inappropriate for the person to be assisted to end their own life,”.
New clause 2—Tribunal authorisation—
“(1) Where—
(a) a person has made a first declaration under section 5 which has not been cancelled,
(b) the coordinating doctor has made the statement mentioned in section 7(3), and
(c) the independent doctor has made the statement mentioned in section 8(5), that person may apply to the First-tier Tribunal (“the Tribunal”) for a declaration that the requirements of this Act have been met in relation to the first declaration.
(2) On an application under this section, the Tribunal—
(a) must make the declaration if it is satisfied of all the matters listed in subsection (3), and
(b) in any other case, must refuse to make the declaration.
(3) The matters referred to in subsection (2)(a) are that—
(a) the requirements of sections 5 to 9 of this Act have been met in relation to the person who made the application,
(b) the person is terminally ill,
(c) the person has capacity to make the decision to end their own life,
(d) the person has relevant and available palliative care options available to them,
(e) the person is not liable to be detained under the Mental Health Act 1983,
(f) the person was aged 18 or over at the time the first declaration was made,
(g) the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration,
(h) the person is registered as a patient with a general medical practice in England or Wales,
(i) the person has a clear, settled and informed wish to end their own life, and
(j) the person made the first declaration and the application under this section voluntarily and has not been coerced or pressured by any other person into making that declaration or application.
(4) The Tribunal—
(a) may hear from and question, in person, the person who made the application for the declaration;
(b) must hear from and may question, in person, the coordinating doctor or the independent doctor (or both);
(c) for the purposes of paragraph (b), may require the coordinating doctor or the independent doctor (or both) to appear before the tribunal.
(5) For the purposes of determining whether it is satisfied of the matters mentioned in subsection (3)(g) and (h), the Tribunal may also—
(a) hear from and question any other person;
(b) ask a person to report to the Tribunal on such matters relating to the person who has applied for the declaration as it considers appropriate.
(6) In considering an application under this section, the panel must consist of—
(a) a sitting judge,
(b) a medical practitioner, and
(c) a lay person.
(7) In subsection (4)—
(a) in paragraph (a), the reference to the person who made the application includes, in a case where the person’s first declaration was signed by a proxy under section 15, that proxy, and
(b) “in person” includes by means of a live video link or a live audio link.”
This new clause would replace the role of the High Court with the tribunal system.
New clause 3—Tribunals in Wales—
“(1) For the purposes of this Act, the First-tier Tribunal and the Upper Tribunal, in exercising functions under or arising from this Act in relation to Wales, are to be treated as devolved tribunals within the meaning of paragraph 9 of Schedule 7A to the Government of Wales Act 2006.
(2) The Welsh Ministers may by regulations make provision relating to the procedure to be followed by the First-tier Tribunal and the Upper Tribunal in exercising functions under this Act in relation to Wales.
(3) Statutory instruments containing regulations made under this section may not be made unless a draft of the instrument has been laid before and approved by resolution of Senedd Cymru.”
Amendment 67, in schedule 4, page 28, line 32, leave out from “The” to “has” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 68, in schedule 5, page 30, line 6, leave out from “the” to “made” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 69, in schedule 5, page 30, line 10, leave out from “the” to end of line and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
Amendment 70, in schedule 6, page 32, line 3, leave out from “of” to “declaration” and insert “First-tier Tribunal”.
This amendment is consequential on NC2 and NC3.
New schedule 1—The Voluntary Assisted Dying Commissioner—
“Status
1 (1) The Commissioner is to be a corporation sole.
(2) The Commissioner is not to be regarded as—
(a) the servant or agent of the Crown, or
(b) as enjoying any status, immunity or privilege of the Crown.
(3) The Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown.
General powers
2 The Commissioner may do anything the Commissioner considers appropriate for the purposes of, or in connection with, the Commissioner’s functions.
Deputy Commissioner
3 (1) The Prime Minister must appoint a person to be the Deputy Voluntary Assisted Dying Commissioner (the “Deputy Commissioner”).
(2) The person appointed must hold or have held office as a judge of—
(a) the Supreme Court,
(b) the Court of Appeal, or
(c) the High Court.
(3) The Commissioner may delegate any of the Commissioner’s functions to the Deputy Commissioner, to the extent and on the terms that the Commissioner determines.
(4) The delegation of a function under sub-paragraph (3) does not prevent the Commissioner from exercising that function.
(5) The functions of the Commissioner are to be carried out by the Deputy Commissioner if—
(a) there is a vacancy in the office of the Commissioner, or
(b) the Commissioner is for any reason unable or unwilling to act.
Appointment and tenure of office
4 (1) A person holds and vacates office as the Commissioner or Deputy Commissioner in accordance with the terms and conditions of their appointment as determined by the Secretary of State, subject to the provisions of this paragraph.
(2) An appointment as the Commissioner or Deputy Commissioner is to be for a term not exceeding five years.
(3) A person may not be appointed as the Commissioner or Deputy Commissioner if a relevant appointment of them has been made on two occasions. “Relevant appointment” here means appointment as the Commissioner or Deputy Commissioner.
(4) The Commissioner or Deputy Commissioner may resign by giving written notice to the Secretary of State.
(5) The Secretary of State may by notice in writing remove a person from the office of Commissioner or Deputy Commissioner if satisfied that the person—
(a) has behaved in a way that is not compatible with their continuing in office, or
(b) is unfit, unable or unwilling to properly discharge their functions.
Remuneration
5 The Secretary of State may pay to, or in respect of, the person holding office as the Commissioner or Deputy Commissioner—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
Staff: appointed by Commissioner
6 (1) The Commissioner may appoint staff.
(2) Staff are to be appointed on terms and conditions determined by the Commissioner.
(3) The terms and conditions on which a member of staff is appointed may provide for the Commissioner to pay to or in respect of the member of staff—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
(4) In making appointments under this paragraph, the Commissioner must have regard to the principle of selection on merit on the basis of fair and open competition.
(5) The Employers’ Liability (Compulsory Insurance) Act 1969 does not require insurance to be effected by the Commissioner.
Staff: secondment to Commissioner
7 (1) The Commissioner may make arrangements for persons to be seconded to the Commissioner to serve as members of the Commissioner's staff.
(2) The arrangements may include provision for payments by the Commissioner to the person with whom the arrangements are made or directly to seconded staff (or both).
(3) A period of secondment to the Commissioner does not affect the continuity of a person's employment with the employer from whose service he or she is seconded.
Staff: general
8 (1) Before appointing staff under paragraph 6 or making arrangements under paragraph 7(1), the Commissioner must obtain the approval of the Secretary of State as to the Commissioner's policies on—
(a) the number of staff to be appointed or seconded;
(b) payments to be made to or in respect of staff;
(c) the terms and conditions on which staff are to be appointed or seconded.
(2) A function of the Commissioner may be carried out by any of the Commissioner's staff to the extent authorised by the Commissioner (but this is subject to sub-paragraph (3)).
(3) Sub-paragraph (2) does not apply in respect of—
(a) the Commissioner’s function under paragraph 2(1) of Schedule (Assisted Dying Review Panels) of making appointments to the list of persons eligible to be panel members;
(b) the Commissioner’s function of determining applications for reconsideration under section (Reconsideration of panel decisions refusing certificate of eligibility).
Financial and other assistance from the Secretary of State
9 (1) The Secretary of State may—
(a) make payments to the Commissioner of such amounts as the Secretary of State considers appropriate;
(b) give such financial assistance to the Commissioner as the Secretary of State considers appropriate.
(2) The Secretary of State may—
(a) provide staff in accordance with arrangements made by the Secretary of State and the Commissioner under paragraph 7;
(b) provide premises, facilities or other assistance to the Commissioner.
Accounts
10 (1) The Commissioner must—
(a) keep proper accounts and proper records in relation to them, and
(b) prepare a statement of accounts in respect of each financial year in the form specified by the Secretary of State.
(2) The Commissioner must send a copy of each statement of accounts to the Secretary of State and the Comptroller and Auditor General—
(a) before the end of August next following the end of the financial year to which the statement relates, or
(b) on or before such earlier date after the end of that year as the Treasury may direct.
(3) The Comptroller and Auditor General must—
(a) examine, certify and report on the statement of accounts, and
(b) send a copy of the certified statement and the report to the Secretary of State.
(4) The Secretary of State must lay before Parliament each document received under sub-paragraph (3)(b).
(5) In this paragraph, “financial year” means—
(a) the period beginning with the date on which the Commissioner is established and ending with the second 31 March following that date, and
(b) each successive period of 12 months.
Application of seal and proof of documents
11 (1) The application of the Commissioner's seal is to be authenticated by the signature of—
(a) the Commissioner, or
(b) a person who has been authorised by the Commissioner for that purpose (whether generally or specially).
(2) A document purporting to be duly executed under the Commissioner’s seal or signed on the Commissioner’s behalf —
(a) is to be received in evidence, and
(b) is to be treated as duly executed or signed in that way, unless the contrary is shown.
Public Records Act 1958
12 In Part 2 of the Table in paragraph 3 of the First Schedule to the Public Records Act 1958 (bodies whose records are public records), at the appropriate place insert “The Voluntary Assisted Dying Commissioner”.
House of Commons Disqualification Act 1975
13 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying person from membership of House of Commons), at the appropriate place insert—
“The Voluntary Assisted Dying Commissioner or the Deputy Voluntary Assisted Dying Commissioner.”
Freedom of Information Act 2000
14 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public authorities for the purposes of the Act) , at the appropriate place insert—
“The Voluntary Assisted Dying Commissioner.”
Equality Act 2010
15 In Part 1 of Schedule 19 to the Equality Act 2010 (public authorities subject to public sector equality duty), at the end of the group of entries for bodies whose functions relate to health, social care and social security insert—
“The Voluntary Assisted Dying Commissioner.””
This new Schedule contains provision about the Voluntary Assisted Dying Commissioner and the Deputy Commissioner.
New schedule 2—Assisted Dying Review Panels—
“Introduction
1 In this Schedule—
(a) “referral” means a referral under section (Referral by Commissioner of case to multidisciplinary panel) or (Reconsideration of panel decisions refusing certificate of eligibility) (and similar references are to be construed accordingly);
(b) “panel” means an Assisted Dying Review Panel.
List of persons eligible to be panel members
2 (1) The Commissioner must make appointments to a list of persons eligible to sit as members of panels.
(2) A person may be appointed to the list only if—
(a) the person (a “legal member”)—
(i) holds or has held high judicial office,
(ii) is one of His Majesty’s Counsel, or
(iii) has (at any time) been requested to act as a judge of the Court of Appeal or the High Court by virtue of section 9(1) of the Senior Courts Act 1981,
(b) the person (a “psychiatrist member”) is—
(i) a registered medical practitioner,
(ii) a practising psychiatrist, and
(iii) registered in one of the psychiatry specialisms in the Specialist Register kept by the General Medical Council, or
(c) the person is registered as a social worker in a register maintained by Social Work England or Social Work Wales (a “social worker member”).
(3) In this paragraph “high judicial office” means office as—
(a) a judge of the Supreme Court,
(b) a judge of the Court of Appeal, or
(c) a judge or deputy judge of the High Court.
Tenure of persons appointed to list
3 (1) Subject to the provisions of this paragraph, persons on the list hold and vacate their appointments in accordance with the terms on which they are appointed.
(2) An appointment to the list is to be for a period not exceeding five years.
(3) A person who has held appointment to the list is eligible for re-appointment for one further period not exceeding five years.
Membership of panels
4 (1) The Commissioner must make arrangements for determining the membership of a panel.
(2) The arrangements must ensure that a panel consists of—
(a) a legal member,
(b) a psychiatrist member, and
(c) a social worker member.
Decisions of panels
5 (1) The legal member of a panel is to act as its chair.
(2) Decisions of a panel may be taken by a majority vote; but this is subject to sub-paragraph (3).
(3) The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.
Panel sittings
6 (1) Panels are to determine referrals in public (but this is subject to sub-paragraph (2)).
(2) The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private.
Staff and facilities
7 The Commissioner may make staff and other facilities available to panels.
Practice and procedure
8 (1) The Commissioner may give guidance about the practice and procedure of panels.
(2) Panels must have regard to any such guidance in the exercise of their functions.
Reasons
9 Panels must give reasons, in writing, for their decisions.
Money
10 The Commissioner may pay to or in respect of members of panels—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
House of Commons Disqualification Act 1975
11 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying persons from membership of House of Commons), at the appropriate place insert—
“Person on the list of those eligible for membership of an Assisted Dying Review Panel.””
This new Schedule contains provision about Assisted Dying Review Panels.
Amendment (c) to new schedule 2, in paragraph 4, after
“(c) a social worker member.”
insert—
“(3) The Commissioner must ensure that each member of a panel has had training in respect of domestic abuse, including coercive control and financial abuse.”
Amendment (a) to new schedule 2, in paragraph 4, after
“(c) a social worker member.”
insert—
“(3) Each member of a panel must have fluent proficiency in the Welsh language if services or functions in the Act are to be provided to an individual in Welsh.”
Amendment (b) to new schedule 2, in paragraph 8, leave out sub-paragraphs (1) and (2) and insert—
“(1) The Commissioner must give guidance about the practice and procedure of panels.
(2) Such guidance must prescribe a procedure which in relation to each application appoints a person nominated by the Official Solicitor to act as advocate to the panel.
(3) Panels must have regard to such guidance in the exercise of their functions.”
This amendment would require Assisted Dying Panels to follow an adversarial process to test the evidence by appointing an advocate to the panel.
Kim Leadbeater
I hope you are sitting comfortably, Mrs Harris; it is a pleasure to see you this evening. I rise to speak to new schedules 1 and 2, new clauses 14, 15, 17 and 21, and their consequential amendments. These provisions relate to the introduction of the assisted dying commission, which would oversee the assisted dying process in England and Wales, and the multi-disciplinary panels of experts, which will operate as part of the commission, should the Bill be passed.
It has always been my view, and I have always been clear, that there should be a third layer of scrutiny and safeguarding in the assisted dying process, particularly given the significance of the change in the law. However, I appreciate that, if we compare the Bill with the many other models of assisted dying around the world, this is very unusual. Most jurisdictions have a process that involves two doctors, as the Bill does, but there is no additional stage.
There are different views as to whether a third layer is necessary; many other jurisdictions have processes that provide a very compassionate, patient-centred and well-safeguarded approach to assisted dying without it. Indeed, some of the most difficult emails I receive are from terminally ill people who are very concerned about the complexity of the process laid out in the Bill. They feel that it is overcomplicated and too bureaucratic to navigate for people who are in their dying days and weeks. I am very sensitive to that. I am also aware that the thorough process set out in the Bill will take time, and there will be people who embark upon it who will die before they can complete it, as happens in other jurisdictions. That is, of course, extremely sad.
I also know that, certainly in this country, people feel strongly that oversight and scrutiny of what we might call the initial medical stages of the assisted dying process are important. The challenge is achieving an appropriate balance between compassion and patient autonomy, and robust safeguarding—plus, of course, medical autonomy.
If there is to be a third layer, what should it look like? As the Bill stands, the third layer of scrutiny is a High Court judge, who would make the final decision regarding a patient’s choice to have an assisted death. I was, and remain, very confident in the ability of High Court judges to have that role, but it is fair to say that there is a range of views on the suitability of the judiciary to fulfil this function—not least from ex-judges themselves. It is important that we as a Committee acknowledge that.
Barrister and former Supreme Court judge Lord Sumption said that
“clause 12 is unnecessary and in some respects undesirable.”
He went on:
“The concern that I have about clause 12 in its current form is that it is not entirely clear what the judge is supposed to do…is he there in order to ensure that the two doctors have done their job and that the ducks are all in a row, or is he there to form his own view on all of those matters, completely independently of those who have already given their certificates?...It seems to me that this is a protection that no other country, so far as I am aware, among those that have authorised one or other form of assisted dying has included.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 172-173, Q222.]
Lord Sumption has been critical of the complexity of the process set out in the Bill as drafted, describing it as
“over-engineered, bureaucratic, and coldly inhumane”.
He told us in evidence that he disagreed with the inclusion of the need for High Court approval of a person’s application for an assisted death.
Former High Court judge Sir James Munby has written various articles in this regard. In his piece “Assisted dying: what role for the judge?” he asks:
“Should the judges be involved at all in this process? Is what is proposed a proper judicial function?”
He continues:
“Is this, indeed, truly a judicial function at all? Many would say that it is not. Where else in our judicial system does one find a judge, sitting judicially as a judge, whose function is not to decide some disputed issue or…to resolve some controversy but only to certify, as it were, that some decision taken by a private individual complies with the law? That, it might be said, is not what judges do and not what judges are for.”
He also expresses his concerns around conscientious objection and the challenges of ensuring
“an open and transparent process that may deter those for whom the scheme is designed, and a secret process destructive of the integrity of the scheme and corrosive of the judicial function.”
I absolutely agree that this is a very tricky balance.
Danny Kruger
The hon. Lady cites James Munby, who correctly identified the problems with the High Court process as it was designed and exists in the Bill. Is she aware that he also strongly objects to the amendments? He thinks that the newly proposed scheme fails on all the same tests, and he regards it as just as unsafe as the previous one.
Kim Leadbeater
The hon. Gentleman makes a good point. It is fair to say that there is a range of views on this subject from the judiciary. Ex-judges have commented, and I will come to those comments shortly.
In his evidence, the chief medical officer, Professor Sir Chris Whitty, said that the best safeguards were the simple ones and warned that patients could find themselves in “a bureaucratic thicket” at the end of life if there is too much to navigate. I am very sensitive to that. Responding to his comments, Lord Sumption said:
“I do agree with that…one suggestion that I think would make a significant difference…is the removal of the clause 12 stage.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 182, Q236.]
That shows the difference of opinion among former judges.
Danny Kruger
I have made this point before, but I will do so again: it is very welcome to have these extra professionals involved in the process. Does the hon. Lady not recognise that it would be so much more appropriate to have them involved early on, at the assessment stage? We all want it not to be just a rubber stamp, but they are currently to be involved at the approval stage, at the end of the process, essentially fulfilling a judicial function of deciding yes or no. Why are these professionals not involved earlier?
Kim Leadbeater
I disagree: they are involved earlier. I have talked about the amendments we have already made around health and social care professionals. We have tabled those amendments, changed the Bill and added that provision on the basis of the evidence we heard. Remember that either doctor can speak to any other health or social care professional they wish. I would say that, actually, a multidisciplinary approach is taken throughout the Bill and, by ending the process with the panel, that is reinforced.
The hon. Member for East Wiltshire said in his radio interview on 12 February, “I do welcome”—as he has confirmed today—“the additional role of more experts in the process”. Hopefully, irrespective of our different views, that is something that the idea of the panel can coalesce around. Despite the hon. Gentleman’s opposition to assisted dying, I hope that, in the interests of strengthening the Bill, he will be able to support the amendments today, because that is the job of this Committee—to strengthen the Bill, not to try to stop it, however strongly people may feel about the issue.
A significant part of the strengthening is through additional patient-centred safeguards. I firmly believe that the introduction of the assisted dying commission and the addition of the multidisciplinary expertise and oversight provided by the panels are a crucial part of that. The panel will look at the detail of every individual case and scrutinise the doctors’ reports. It must hear from and may question the co-ordinating doctor or the independent doctor; it may hear from and question both; and it must hear from and may question the patient themselves. I mentioned that in relation to the amendment from my hon. Friend the Member for Broxtowe earlier. It is the default.
This was a difficult decision. I appreciate that to make the patient undergo another level of personal scrutiny could be viewed as cruel. Indeed, a number of people have said to me that they feel it will be too burdensome on the patient during what is already a deeply emotional, highly personal and stressful time, when they are likely to be in pain and having treatment. I acknowledge that. Again, this is about finding the very difficult balance between avoiding an unduly stressful bureaucratic process and ensuring that the patient is making, as the Bill says, a “clear, settled and informed” decision. There is a very strong argument that in order to do so, the panel should hear from the person themselves. That is the decision I have taken, addressing the concerns of colleagues who have tabled amendments to the same effect. Indeed, Lord Munby said of the Bill as it stands that
“the absence of any requirement that the judge ‘must’ hear from and question the patient is a quite extraordinary lacuna.”
I appreciate, though, that there will be exceptional circumstances, which we know may be the case if the patient is very ill and in their last few weeks of life.
The panel may also ask any person who appears to have relevant knowledge or experience to report to it on such matters relating to the person as it considers appropriate. It can basically ask to hear from anybody it wishes. That would obviously vary from case to case. Every case will be different, as we have discussed, and flexibility is really important. Only if all three members of the panel are satisfied that all the criteria have been met will it issue a certificate of eligibility. It must refuse to do so if it is not satisfied. The decision of the panel has to be unanimous. If there is any doubt from any of the panel members that the criteria have been met, the patient cannot proceed.
The patient then enters a 14-day period of reflection, before making their second declaration. It is worth reiterating that, as has been said previously, a significant number of patients get to that stage and never actually continue with an assisted death, but the comfort it provides enables them to live out their final weeks and days with a sense of reassurance. As families have described, a weight is lifted. Indeed, Professor Michael Dooley, who is the director of pharmacy at Alfred Health and the head of Victorian voluntary assisted dying pharmacy services, and who some of us met yesterday, told us that in that state in Australia some 90% of assisted dying patients also still access palliative care. That shows the holistic approach that can be taken.
There is of course another very important role for the commission, which is in relation to the monitoring and reporting of cases—something I feel very strongly about. The details are set out in my amendment 455 to clause 34. The commission must produce an annual report, which must include details about the application of the Act. That report must include details in relation to persons who have protected characteristics, and details of any other description of people specified. That would include data on demographics; statistics on the populations and characteristics of the patients who have chosen an assisted death; their age and gender; geographical analysis; data regarding the illnesses and diseases; how many cases were rejected; and how many patients did not complete the process and so on. When completing the annual report, the commissioner must consult the chief medical officers for England and for Wales, and anyone who represents the interests of people with protected characteristics.
The Law Society, which is neutral on assisted dying, says that if the law were to change, the system must have
“robust, accessible and independent safeguards”
as well as
“strong independent monitoring and review mechanisms”.
I agree. The introduction of a multidisciplinary panel of experts to consider all applications for an assisted death, overseen by a commissioner in the form of a High Court judge, sitting or retired, really does achieve that, and embeds a truly robust, multidisciplinary approach, which I am confident will put patients at the centre of the assisted dying process and provide additional scrutiny, safeguards and protections.
Naz Shah
I rise to speak to new clause 21, new clause 14, new clause 16, new schedule 2 and amendment (b) to new schedule 2. I will start with new clause 21—and have a break in between.
I oppose new clause 21, tabled by my hon. Friend the Member for Spen Valley. I also wish to oppose new clauses 14, 15, 16 and 17, which between them set out the panel procedure to replace the use of a High Court judge, but I will focus my remarks on new clause 21. That is because, first, it is the most recently tabled of my hon. Friend’s new clauses on the panel. Secondly, and perhaps more importantly, it seems to be an attempt to solve some of the problems of the earlier new clauses.
I welcome what I think my hon. Friend’s intentions are with the new clauses. The Bill as drafted did not provide anything like adequate safeguards. The new clause states that the panel must hear from, and may then question, the doctors who made the certification, the applicant for assisted death, and any other person who may have relevant information. These moves are very welcome steps towards a tighter set of safeguards, but they are inadequate because of what they leave out.
Sir James Munby, the former president of the family division of the High Court of England and Wales, has written several times about the problems with the Bill. It is a matter of great regret to me that we did not hear from Sir James; I appreciate that my hon. Friend the Member for Spen Valley set out that he was invited to give evidence to the Committee. Sir James has expressed profound concern about the series of new clauses— new clauses 14, 15, 16 and 17—that my hon. Friend has tabled. He wrote that the new clauses did address some of the problems of the original Bill, but he went on:
“These changes are to be welcomed, so far as they go. It is important to recognise, however, that they do not, in my opinion, go anything like far enough.”
As I have said, some elements of new clause 21 do indeed address some of the problems that Sir James identified but, again, the new clause unfortunately still leaves many of the biggest problems untouched.
The Bill does not set out that evidence must be heard under oath. That is an extraordinary omission. Sir James Munby asks, in his most recent essay:
“is the panel to hear evidence on oath? Indeed, will the panel have power to administer an oath?”
We rightly expect our courts to hear evidence under oath if they deal with cases concerning property or contract. The matters the panels will be dealing with are far more important than that. It is baffling to me why we should hear evidence on these matters without making witnesses swear oaths to tell the whole truth and nothing but the truth. Anyone speaking to one of these panels should do so with the same commitment to telling the truth as they would in a court of law.
Danny Kruger
Danny Kruger; we are easily confused. [Laughter.]
The hon. Lady talks about the question of oaths, and it is extraordinary. Does she agree that it speaks to the confusion about whether the panels are a judicial construct at all? They have a judicial function—they exercise a judicial responsibility—but they are composed of non-lawyers. Maybe that explains why there is no oath, but I agree with the hon. Lady that there should be one. Does it not speak to the confusion in the new clause?
Naz Shah
As I make progress, I will speak to that point, but I share the hon. Gentleman’s concern. I will return to my speech and expand on the point when I arrive at that juncture.
Sir James goes on to say that there are even graver problems with the panel procedure. I appreciate that his paper was published before new clause 21 was tabled, but it does not address all the concerns he raised. He referred particularly to new clause 16, but it is relevant to note that the problem he identified is left untouched by new clause 21. Sir James says of new clause 16:
“It says very little about the procedures to be adopted for testing and, if need be, challenging the evidence”.
He goes on to say that
“it says nothing about who should exercise that function; nor about the nature of any independent evidential investigation and nothing about who is to undertake this and who is to pay for it.”
Finally on this point, he says that new clause 16
“says nothing about what, if any, public funding arrangements there will be for the applicant, the two doctors, and any other parties or expert or lay witnesses.”
The first point raised by Sir James is an extraordinary one. The panels will bring together three people: a lawyer, a consultant psychiatrist and a social worker. They will sit on what is a quasi-judicial body. The latter two will not necessarily have any experience of questioning witnesses and assessing evidence as part of a quasi-judicial process. The first person—the lawyer—will have such experience. What is going to happen? Are we just hoping that they will successfully make it up as they go along? Is there not a danger that in some cases the non-legal members of the panel end up deferring to the wishes of the lawyer, who has more experience in these matters?
Naz Shah
As I make progress I will address some my hon. Friend’s points—I have a fairly long speech—but I will say now that when the Bill passed on Second Reading, one of the safeguards was that it included judicial oversight. That is very different to what we are talking about now.
Danny Kruger
This is a very important point, and I am grateful for the hon. Member for Spen Valley’s admission that this is not a judicial process. We have constantly been told that the Bill has been gold-plated with the judicial stage of the application process, but we have now heard that there is not a judicial stage. We have also heard that this is “judge-plus” and somehow an improvement—it is a judge and others—but we should be clear that there is not necessarily a judge in the process, and it is very unlikely that there would be. We have just heard conclusively that the judicial stage of the process in the Bill has been dropped.
Naz Shah
I agree: there is not a judicial process, so to speak. There most definitely is not. As I make progress, I will outline my concerns about that very clearly.
Let us take the second point raised by Sir James. He asked who will go about
“testing and, if need be, challenging the evidence”?
New clause 21 finally gives the panel the power to call people to give evidence who are neither the applicant nor the doctor. New clause 21(4) says that the panel
“may hear from and may question any other person”
and
“may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.”
I welcome that as a start, because it acknowledges that there will be cases in which people other than the applicant and the doctors have vital information. But that really should not be where we finish—not if we want a genuinely robust assisted dying Bill with strong safeguards for vulnerable people.
The ability of the panel to hear evidence from other parties would indeed be one step towards detecting whether people are, for example, being coerced towards an assisted death. That would be one step towards being able to detect whether people were choosing assisted death because of a lack of palliative care or social care. But how will the panels know which witnesses are most likely to have or be aware of the significant evidence they seek?
The panel members will have the statements by the applicant and the doctors, and they will have the answers to any questions they have of the applicant and the doctors. I ask Members to think through how certain it is that those sources alone will be enough to find all the people who might have significant knowledge of a person’s circumstances. I would argue that it will not be certain. Yes, in some cases there will be no hidden circumstances that a panel would hear of from a witness only if they were called, but in other cases there will be, and those circumstances are much more likely to occur in the cases of people who are coerced or who feel like a burden to their families. They will be more likely to occur for those who have poor mental health, who are isolated, or who lack the social care they need. The panels are not likely to find witnesses with relevant information if what they have to go on is the statement of witness evidence of a person who has, for example, been successfully and skilfully coerced.
Naz Shah
I either misheard my hon. Friend or did not understand his earlier point, so let me speak to the point he makes now. My understanding is that sectioning someone under the Mental Health Act is a very extreme measure. Someone is sectioned in circumstances in which lots and lots of evidence has been taken from people who know the person, and there is a history. That was certainly the case when I chaired a mental health charity. Whether it is carers or other people who contribute to that, there is a long-standing relationship; from my understanding, it is very rare for something to happen otherwise. That is my understanding and experience of it, but I am happy to have a chat with my hon. Friend to talk more about it and understand it more.
Danny Kruger
Does the hon. Lady agree that the intervention of the hon. Member for Sunderland Central is very helpful because it highlights the difference between a genuine judicial tribunal, as he suggests, and what is being proposed here? This is not a tribunal. It would not sit in a judicial capacity. Its members would not take oaths in the way that members of a tribunal do. They are not appointed through the independent appointments process that tribunals have. This is a multidisciplinary team masquerading as some sort of final judicial stage, without the proper accountability of a judicial stage. On that basis, we cannot regard it as any sort of improvement to the Bill.
Naz Shah
I thank the hon. Member for reminding me of that; I talked about that earlier. I agree with him that this is about the legalities. Ultimately, it comes back to judicial oversight, which is what was promised originally. That is why judges were part of the original proposals for the Bill. The words we must listen to are Sir James Munby’s. If we want an assisted dying Bill with real safeguards for the vulnerable, then we should reject new clauses 14 to 17 and new clause 21. They are not thorough enough to do the job.
Danny Kruger
The hon. Gentleman is making a very good speech in defence of the change, but could he help me understand something? He said that he supported the previous proposal, involving a High Court judge; he is now suggesting that it would be completely inappropriate to have any sort of judicial oversight of the process. How could it have worked better?
The hon. Gentleman talks about there being no need for any sort of adversarial system, but does he not recognise that there might be another side to the story, and that it would be appropriate for somebody, whether that is a judge or someone else, to hear arguments against the application?
Jake Richards
Let me deal with the first point first. A High Court judge could have exercised this function themselves. As I set out in public very soon after Second Reading, I was struck by the fact that we were asking a High Court judge to do this, even though they have no particular expertise in the issues that so concerned hon. Members on Second Reading, whether they voted in favour of the Bill or against it. I thought about the process more, as we are all doing, to try to understand what it would look like in practice. What questions might be asked? Where does a panel or judge need to go? To my mind, psychiatrists and social workers are much better placed than High Court judges to know what avenues to further explore.
I have forgotten the hon. Gentleman’s second question.
Danny Kruger
I was making the point that there is surely some value in what the hon. Gentleman describes as an adversarial process, in which the decision maker is required to consider whether there are circumstances that the applicant is not presenting.
Jake Richards
I will come on to that issue. First, there are avenues for the panel to have information put before it that will be pertinent to the decision at hand and that may be pivotal to that process. That is not quite adversarial. Secondly, there is always a route for an adversarial contest in this matter through judicial review. I hope that that will be very rare, but it is certainly possible, and that has to be maintained. I think my hon. Friend the Member for Spen Valley and the Minister would accept that that would be an avenue.
The panel will have an array of information to consider. It will have two reports: one from the co-ordinating doctor and one from the independent doctor. In any event, it is often likely to seek medical records. It will speak to the co-ordinating doctor or independent doctor about capacity and any issues of coercion. Crucially, it will speak to the person themselves unless there are extraordinary circumstances that oblige it not to. One can imagine the vast array of circumstances that will come before the panel, but it will have the discretion and freedom to explore as appropriate. That will be a process that is appreciative of the specific facts before the panel.
I made this point earlier, but it is important to remember that this is a very human moment. A person is dying; they come to the panel seeking help. It is right to ensure that there are hurdles to consideration for eligibility, but the idea that a person should be forced to win a trial or a case, or see through complex litigation, is surely not right.
Danny Kruger
This conversation is very helpful, and the point the hon. Lady makes is absolutely right. If we are going to rely on JR as a sort of appeal process, we need to make it clear how that would work. Would there be legal aid? How quickly could these things be done? I think that that needs to be built in. Does she agree?
Naz Shah
I absolutely agree that we have not thought this through enough, because that process has not been laid out. We really need to think about these potential eventualities.
When such cases happen, the public, including family members of the person who has died, will rightly demand answers, and so will the media. They will want to know who the panel members were and why they made the judgment they did. In such cases, who would investigate whether panel members had got it wrong? The commissioner who had appointed them? The commissioner, or any person, no matter how honest and how learned, would come back to that question with a very strong bias. The commissioner will mark their own homework. That is not a system that anyone can argue will provide proper safeguards.
Hon. Members might object that the voluntary assisted dying commissioner will be a very senior judge. According to the new clause, the commissioner
“must hold or have held office as a judge of—
the Supreme Court
the Court of Appeal, or
the High Court.”
I agree that only people of high intelligence and good standing become judges in those courts, but that does not mean that the very highest judges in the land do not sometimes make mistakes—sometimes very bad ones.
Naz Shah
I am grateful for my hon. Friend’s intervention, but I reject the facetiousness of his point.
Let me speak to the issue of unconscious bias in relation to the proposal before us. In 1992, there was a jury trial, which found my mother guilty of murdering an abusive partner. In 1998, I went to the High Court and put it to three white middle-class judges that my mother could not tell the truth because of the abuse, the dishonour and the concept of izzat, which defined her existence as a woman. They were not capable of believing that, because they did not have that cultural understanding —so, yes, unconscious bias does exist, even in criminal cases in courts of law.
Returning to my argument, I remind hon. Members of the testimony of Dr Ryan Spielvogel from California, who said:
“when I am going through the options with patients who are newly diagnosed with a serious life-threatening illness, I say, ‘Okay, here’s what disease-directed treatment would look like. We can continue with your chemo. Here are some side effects and complications that you might have, and here are the benefits of that. Here’s what palliative care or hospice care would look like.’ Then I say, ‘I don’t know if you know this, but in our state we have this other option for people nearing the end of their lives when they have intolerable suffering. You can ask me to fill a lethal prescription for you to help end your suffering sooner.’…The number of times that people look at me and say, ‘You can do that? That’s an option here?’ is astounding. I would say that nine out of 10 of patients I have conversations with have no idea that that is even legal. If they do not know it is an option, they are never going to ask for it.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 105, Q143.]
I wonder whether I would be comfortable—this is just a personal thing, but I want to put it out there for people to think about—about a doctor such as that, who really supports assisted dying, being on the panel. I am not casting aspersions on him, but I genuinely am unsure.
Of course, the panel will be chaired by lawyers. I would like to remind hon. Members of the evidence of Professor Meredith Blake, who is a senior legal adviser to the Western Australian government on their assisted dying law. Professor Blake’s evidence was quite extraordinary. My hon. Friend the Member for Banbury asked her:
“Does it concern you that a large proportion of people who opted for assisted dying cited being a burden as their reason?”
She replied:
“That is not the evidence that we have got.”
My hon. Friend responded:
“Let me just clarify. The state’s own report in 2023-24 had 35%.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 220, Q284.]
I do not recall having a satisfactory answer from Professor Blake to that question, but please feel free to check Hansard.
If we see a series of questionable decisions by one or more panel member, the only official scrutiny will come from the person who appointed them to do their jobs, and that is not a robust safeguard. Furthermore, my hon. Friend the Member for Spen Valley said earlier that decisions would be unanimous, but that is not entirely correct, and I am happy to point to the relevant bit in the Bill. If two people decide they agree, and the other decides to stay quiet, that would be seen as a unanimous decision, and the panel would proceed. I am happy to point that bit of the Bill out to my hon. Friend, as I would love to see an amendment if one were needed.
Danny Kruger
I think the point the hon. Lady is making is that each member of the panel has a veto over the decision so, in a sense, there has to be unanimity about the approval. However, she is absolutely right that if two members disagree with one another about any other aspect of their proceedings, including who to invite to give evidence, they could be overruled, so there is not unanimity there.
Naz Shah
I completely agree. That is the case in the Bill, which raises concerns.
Finally, Parliament needs to get back into the habit of holding powerful commissioners accountable. There is no mechanism in the Bill for removing a commissioner even if they somehow failed significantly in their duties. We might say to ourselves, “If that happened, they would do the right thing and resign,” or, “They would resign if the Prime Minister said something in public.” I am sorry, but we cannot leave that to chance.
There has been a very telling example recently of just how badly quasi-judicial institutions can fail, and just how hard it is to get their senior leadership to accept responsibility. The Criminal Cases Review Commission mishandled the Andrew Malkinson case. Mr Malkinson was falsely convicted of raping a woman in 2003. She had been raped by another man.
Danny Kruger
On a point of order, Mrs Harris. I do not know whether this is appropriate, but was there a proposal to adjourn? I am conscious that my hon. Friend is about to make a very long speech.
The Chair
Yes, there was, but you cannot move the Adjournment while the hon. Lady is still speaking.