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

Danny Kruger Excerpts

Committee stage
Tuesday 18th March 2025 Public Bill Committees

[Danny Kruger (East Wiltshire) (Con)]

I will speak briefly to amendment 316 in the name of the hon. Member for York Central (Rachael Maskell). She has tabled a sensible suggestion that if a patient makes a statement after the second period of reflection, there should be an automatic referral to palliative care. We have heard how expected and usual that is anyway, and the hon. Member for Spen Valley has frequently made the point that people who are having an assisted death, or going through the process, are likely to be in palliative care anyway—it is not an either/or. It is important that we clarify that expectation.

It will obviously be the case that the patient is not required to take up the referral, and if the referral already exists, that case is dealt with, but let us be absolutely clear that the decision to take an assisted death is not a fork in the road, as would be my concern. If that is not the case and that, in fact, palliative care and the assisted death process go hand in hand and will be seen as part of an integrated package of support for patients, my view is that we should specify clearly that in the event of a decision to proceed down the road to an assisted death, a palliative care referral should be made.

Bluntly, I want to make this as clear as we can, although I am not sure that we will ever be able to do that fully. It really has to be very plain to healthcare commissioners and managers that there is to be no cost saving as a result of an assisted death referral. I very much doubt that a single commissioner or manager would have that at the forefront of their mind; nevertheless, incentives apply in healthcare decisions. Ultimately, we have a ration system, and resource allocation necessarily is the job of commissioners.

If, as we are saying, a decision to proceed with an assisted death will be in parallel with palliative care, let us make that plain, so that if indeed it is the case that the patient requires the investment of palliative care services—hospice treatment or otherwise, even though, as we know, hospice care is inadequately funded through public money—nevertheless, there is a resource requirement. It is important that we specify to everybody in the system that an assisted death is not a way of avoiding the expense of proper end-of-life care.

I hope that Members will recognise that amendment 316 is consistent with the arguments that have been made consistently by advocates of the Bill, which is that there is not an either/or between palliative care and assisted death, and that, in fact, it is appropriate for patients to be on both tracks simultaneously.

[The Minister for Care (Stephen Kinnock)]

It is a pleasure to serve under your chairship, Ms McVey.

The purpose of amendment 457 is to exclude a person who has less than one month to live from being eligible for the shorter second period of reflection of 48 hours if that person has voluntarily stopped eating and drinking. That person would instead be required to comply with a second period of reflection of 14 days under clause 13(2)(a). The amendment could create uncertainty as to the required length of the period of reflection. It is unclear, for example, if “voluntarily” would include where someone’s appetite has naturally declined as they approach the end of life, and therefore whose decision to stop eating or drinking may not be deliberate.

As I have said previously, the Government have worked with my hon. Friend the Member for Spen Valley on certain amendments to bolster the legal and workability sides of the Bill, and the purpose of amendment 471 is to clarify that the co-ordinating doctor needs to be satisfied that, immediately before witnessing the second declaration, the criteria set out at subsection (4) are met, and not at any time before. That also ensures consistency with the duty on the co-ordinating doctor in respect of the first declaration.

Amendment 316 would require that where the co-ordinating doctor reasonably believes that the person seeking assistance has less than one month to live from the court declaration, they must refer that person for urgent specialist palliative care. As the referral must be made whether the patient wants that referral or not, this may result in unwanted referrals. The effect of this amendment is unclear.

As drafted, clause 13(2)(b) sets out that where the person’s death is likely to occur within one month, the period of reflection is then 48 hours. Amendment 316 sets out that the referral to urgent palliative care must be made alongside the co-ordinating doctor making the statement, which is the last step to be completed before the provision of assistance under clause 18. That would mean that in some circumstances, there may be insufficient time to make a referral before the person is provided with assistance to end their life.

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[Kim Leadbeater]

I hope that these are a couple of nice, simple amendments. The right of the patient to cancel at any time is obviously really important. It is also important that, for the purpose of monitoring and reporting the process, the commissioner, as proposed, is kept informed at every stage. I hope that the whole Committee can see the necessity of these amendments.

[Danny Kruger]

The hon. Lady is quite right that there is nothing to object to in these amendments or the clause. It is worth stating at this point, though, that in the context of the debate we are having in this Committee, we are moving at some pace. The likelihood is that there will be opportunity for only a five-hour debate on Report—maybe more, but possibly not. This Committee is the time we have to consider in detail the content of the Bill. My concern is that moving too quickly and trying to do too much too soon means that we will miss the opportunity to debate very important aspects of the Bill.

The hon. Lady says that these are “nice, simple” amendments, as if the only thing being discussed here is the paperwork around the declaration. What should we say to patients who decide to cancel their declaration? My concern—I am unaware of any other point when we could appropriately discuss this question—is what happens in the event of a cancellation. What duty of care do doctors have to patients who have decided not to proceed with an assisted death? The Bill does not currently address that question: it imposes no obligation on doctors to follow up in any way after a declaration has been cancelled.

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[Kit Malthouse]

rose—

[Danny Kruger]

Before I give way to my right hon. Friend, I want to posit the hypothesis of a private provider that has been established explicitly for the purpose of facilitating the assisted death procedure for patients. If that provider steps back when the patient decides to cancel their declaration, the provider is required to notify the GP as soon as practicable, whatever that means—the timeframe there is clearly at the convenience of the provider, not the patient. My concern is what happens when the patient’s GP is not quickly informed that they have decided not to proceed with the assisted death and they are sitting in limbo. Obviously, there are significant concerns about their wellbeing, given their decision and the state they are in. It is not yet fully clear to me what the obligations on the doctors would be at that stage.

[Kit Malthouse]

I am not entirely certain that my hon. Friend’s remarks are germane to the amendments, but nevertheless. As we discussed when debating clause 13, at the stage he is talking about, the patient will have had all their options—“all appropriate”, as I think we have amended the Bill to say, services that will be available to them—explained to them. If they are cancelling, the presumption has to be, in respecting their autonomy, that they are choosing one of the alternative paths that has been laid out to them. It is quite hard to legislate for a negative.

[Danny Kruger]

I am speaking to the group as a whole, which includes clause stand part. I have no objection to the amendments. My right hon. Friend is absolutely right. As I said, the expectation is that the medical professionals involved in the person’s care will have laid out their options clearly. We are to a certain degree trusting in that because amendments to insist on it have been rejected, although I recognise that it will be the clear expectation. He is right that it is hard, as it were, to prove a negative.

Nevertheless, the purpose of my speech at this point is to tease out from the advocates of the Bill what their expectation is. My right hon. Friend has clearly explained his expectation, which is that we are dealing with somebody whose mind is clear, rational, uncluttered by other concerns and entirely free of any undue influences or anxieties about the different choices they might make. Having previously decided in the fullness of their autonomy that they wanted to go through the procedure, they have now decided in the fullness of their autonomy that they want to do the opposite, and we should say, “Fine. We have no further interest in your decision making. It is your choice—you’re on your own.” I am very concerned about the implication of my right hon. Friend’s comments about the sorts of patients who might be involved in the process of assisted dying.

[Kim Leadbeater]

To allay those fears, perhaps the fundamental answer to the question is that those people do not stop being patients—sadly, they do not stop being terminally ill patients. They have just chosen to cancel the declaration, and they will already have wraparound care. To some degree, the hon. Gentleman answered his own question when he said that doctors have a duty of care. That duty of care does not stop because the person has chosen to take this course of action. They will still be cared for by the professionals looking after them.

[Danny Kruger]

Well, we certainly hope so. Nevertheless, that is inconsistent with the doctrine of absolute patient autonomy, which in this circumstance allows a patient to withdraw from the medical treatment, or at least from the support of the medics who had been facilitating their assisted death. They are rightly under no obligation to receive any other sort of care.

Of course, one would assume that in most cases medics will be closely involved in looking after these patients, because they are likely to be very ill. Nevertheless, the Bill has nothing more to say about patients who have just stepped back from the brink of suicide; the medics will have no further obligation to ensure that they will be looked after—except by the GP, as soon as it is practicable for the provider who has just been denied the business of looking after the assisted death to get round to emailing them. If that is seen as sufficient to ensure that those patients will be properly looked after, I beg to differ.

[Kit Malthouse]

I am not sure what compulsion there is in wider legislation for there to be a duty of care to patients who do not choose assisted dying in the first place. For thousands and thousands of patients who die, there is no legislation that imposes certain duties on medics or others to look after them; we rely on the professional standards and overall atmosphere of the healthcare system, as we would in the case of these patients.

As my hon. Friend knows, overseas experience shows that a large proportion of the people who obtain the right to an assisted death—up to a third—do not cancel but do not exercise it. As we have said before, for many people assisted dying is an insurance card that they may choose to use if and when they think their life becomes intolerable.

[Danny Kruger]

I recognise that, but that is not germane to the debate that we are having, which is about the actual cancellation. There is a question about why there would have been a cancellation. My right hon. Friend is right that there is no obligation to proceed once a patient passes a particular hurdle. Many will not, but when someone decides actively to renounce their decision, a big question should be asked: what is going on, and what further help is needed?

My right hon. Friend suggests that we do not step in and ensure that care is provided—that, in other circumstances, there is no additional obligation in relation to patients. I am afraid to say that he has, as ever, a coldly rationalistic vision of healthcare and of the sorts of patients we are dealing with. As I have said to him, these patients will be acting much as I imagine he would imagine—I think from a position of health and self-confidence—himself acting in that circumstance. In fact, we are dealing with people who have decided to renounce their decision to proceed, and so are by definition in some turmoil.

I crave the indulgence of the Committee, because I am talking at length about a set of amendments that I do not intend to oppose, and I recognise the value and necessity of the clause. However, I draw to the Committee’s attention that we are dealing not simply with a bit of paperwork, but with a human being who, having made one enormous decision—to die—is now making an enormous decision to live, and we are treating it as if it is only a bureaucratic question.

I finish with a question to the hon. Member for Spen Valley or to the Minister, to help me understand something that confuses me in the clause.

[Naz Shah]

I have not given this matter as much thought as the hon. Member has. My interest is very much in the issue of domestic violence. Does he agree that this could be somebody who has experienced domestic violence? Or children could be at risk. This person may then decide not to take the option, even though they wanted to, because of obligations elsewhere.

[Danny Kruger]

The hon. Lady is right, and her point goes to the question that runs through all of these clauses: why? As a Committee, we rejected the obligation on the doctors to ask, “Why are you doing this?” It was suggested by one hon. Member that it was nobody’s business why somebody was trying to take their own life and that if that person qualified, they should be able to summon the agents of the state to provide them with lethal drugs without any question about their motivation.

I agree with the hon. Lady. There is an equal expectation in my mind that doctors should ask the question, “Why are you changing your mind?” I would expect that. The clause could clarify what further referrals would need to be made, if they had not already been; as we have acknowledged, we would expect appropriate care to be provided by doctors anyway.

I conclude with a factual question. Clause 14(1) lets a patient cancel a first or second declaration, but subsection (4) says only that the duties of the doctor stop when a first declaration is cancelled. I would be grateful if the hon. Member for Spen Valley would explain what happens if the patient cancels a second declaration. It strikes me that there would be a need for urgency because if a patient decides to change their mind at that point, that is arguably a more dangerous situation. What would be the obligations on the doctor at that point? Should we read across from subsection (4) that their duties stop in the same way? Perhaps that could be clarified in later drafting, if necessary.

To conclude, my general point is that the issue of a cancelled declaration is about more than the paperwork. Although, of course, we respect the autonomy of a patient to make their own decision to cancel a declaration—obviously, I would insist that that right should be in the Bill—it nevertheless raises a question in my mind: why is that happening, and what should we expect the patient’s medical team, or others, to do in that circumstance?

[Stephen Kinnock]

The Government have worked with my hon. Friend the Member for Spen Valley on amendments 375 and 376. The amendments require that where the co-ordinating doctor, or any registered practitioner from the person’s GP practice, receives a notification or indication from the person seeking assistance under the Bill that the person wishes to cancel their first or second declaration, the doctor or practitioner must inform the voluntary assisted dying commissioner as soon as practicable. Where a registered practitioner from the person’s GP practice has received a notification or indication from the person to cancel their first or second declaration, they must also inform the co-ordinating doctor. I hope those observations are helpful to the Committee.

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[Daniel Francis]

I welcome my hon. Friend’s acceptance of the amendment, and I think she sees the point behind it. It was meant not to be awkward—I do not think I have been at all awkward during this process—but simply to state that, if there were concerns later, the reason why the proxy was required should be there in a transparent way. I commend amendment 321 to the Committee.

[Danny Kruger]

I am grateful to the hon. Gentleman and I very much support his amendment; it is good to hear that the Bill’s promoter, the hon. Member for Spen Valley, will as well. The hon. Member for Bexleyheath and Crayford has made his points very powerfully, and it is good that we are in agreement.

I also support amendment 431, tabled by the hon. Member for York Central, which would restrict proxies to donees of lasting power of attorney. The point is that somebody who has been through the process of taking on power of attorney has been properly vetted and approved; they are required to demonstrate their fitness for the role and undertake a meaningful duty of care to the person for whom they are a proxy. That strikes me as an appropriate suggestion from the hon. Lady.

Amendment 411, tabled by the hon. Member for Broxtowe, suggests that the phrase

“a person who is of good standing in the community”

should be deleted. I think she is absolutely right to suggest that. I made the point on Second Reading that—

[Kim Leadbeater]

Will the hon. Member give way?

[Danny Kruger]

I think the hon. Lady is about to say that her own amendment addresses that point.

[Kim Leadbeater]

My point was that I think amendment 411 has been withdrawn.

[Danny Kruger]

Is that the case? I apologise.

[The Chair]

I will double check.

[Danny Kruger]

Okay. I am grateful to the hon. Member for Spen Valley, if so. I regret it, because I think amendment 411 had a good suggestion. It would have been my preference if we were just amending the provision, although removing the whole question of a proxy might be the safest thing. Nevertheless, if we are proceeding with the proxy arrangement, it strikes me as dangerous to include a person of good standing in the community. While it sounds like an old-fashioned and sonorous expression, as if it has genuine meaning and recognition, I do not think it is an acknowledged concept and does not appear in English law much, if at all. It obviously begs the question of what on earth it means, and who is to determine who is of good standing.

I labour the point even though the amendment might have been withdrawn, because amendment 473 in the name of the hon. Member for Spen Valley proposes to delete that phrase and give the responsibility for who the proxies could be to the Secretary of State. That is another important instance of a running flaw in the Bill, and particularly the amendments tabled in Committee, which is the transferring of important decisions beyond the Committee and Parliament to the Government and the Minister of the day.

That matters, because we are trying to ensure that when the Bill passes—if it passes—it is safe, but a blank space is being left on the important question of who can determine who the proxies are. The proxies have enormous power to do the paperwork and to answer the questions—to essentially act on behalf of the patient who, in the scenario envisaged, would be silent. It matters who the proxy is.

The decision of the hon. Member for Spen Valley is not to resolve that question here in Committee but to pass it on to a future Minister. My concern is that the same ambiguity or openness that is currently in the Bill about this person of good standing—a serious-sounding but actually vacuous concept—could be replicated in the regulations specified by the Secretary of State.

I am worried about where we are going here. Instead, I wish that we could restrict the proxy to somebody known to the patient, without the inclusion of the person of good standing or, if we are to do without that phrase and imagine that there will be other criteria and other individuals judged appropriate to be the proxy, that we had the will to determine that now. The hon. Member for Spen Valley, working with the Government, may well have concluded that they did not have enough time to come up with such a list or to think through the various complications involved in deciding who the proxy should be. Again, if that was the case, I regret the pace at which we are moving. I do not see why the decision has to be delayed until the Secretary of State comes up with a plan in a couple of years’ time and why it is not being resolved in the Bill now.

[The Chair]

I confirm that amendment 411 has been withdrawn. I see no other Members bobbing; I call the Minister.

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[Stephen Kinnock]

I am not a lawyer, but thankfully I am sitting next to a very eminent and distinguished one—my hon. and learned Friend the Member for Finchley and Golders Green—who has confirmed that everything the hon. Member for East Wiltshire said was correct from a legal standpoint, so I shall leave it at that.

Clause 15(5) of the Bill defines a proxy as

“(a) a person who has known the person making the declaration personally for at least 2 years, or

(b) a person who is of good standing in the community.”

Amendment 473 would remove subsection (b) from the definition of proxy, instead introducing a regulation-making power to specify the persons who may act as proxy. That would avoid any ambiguity around the meaning of a person who is of good standing in the community and retain flexibility to amend the specified list in regulations.

[Danny Kruger]

Will the Minister confirm that the Secretary of State could simply reintroduce that ambiguous term at their own discretion? If they are being given the freedom to decide who can be a proxy, they might decide that it should be a term of equal ambiguity. My right hon. Friend the Member for North West Hampshire is absolutely right that I have great respect for the concept of “standing”; nevertheless, I do not believe that the Government have yet been able to define exactly what that means. Does the Minister agree that there is still the opportunity for ambiguity? We are just leaving it completely blank at this stage and hoping that some future Secretary of State will have more clarity than we do.

[Stephen Kinnock]

I would not want to pre-empt the regulations, because clearly that is the point of the process. If this Bill gets Royal Assent, we then move on to making regulations, and I have confidence in the good offices of parliamentary counsel, legal advice and the drafting process. I absolutely agree with the hon. Gentleman, however, that the purpose of those regulations must be to remove ambiguity, not to increase it. I am confident that the system will produce regulations that address his concern.

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[Kim Leadbeater]

I will speak first to my amendment 473. It is important to be clear that the role of the proxy is very specific and would be used only in a very limited number of cases, where the patient is not able to sign their own name. That is, however, important when we are talking about terminally ill people who may be physically impaired, as my hon. Friend the Member for Bexleyheath and Crayford alluded to.

[Danny Kruger]

I am sorry to interrupt the hon. Lady so soon into her speech. Nevertheless, the clause says that someone can use a proxy when they are unable to sign their name

“by reason of physical impairment, being unable to read or for any other reason”.

Does the hon. Lady acknowledge that that is tantamount to saying that somebody can have a proxy for any reason at all? There is literally no restriction in the clause on the reason for why somebody could have a proxy—anybody could have one.

[Kim Leadbeater]

That is why amendment 321 in the name of my hon. Friend the Member for Bexleyheath and Crayford is really important. We have to put the reason down for why there is a proxy. It depends on personal circumstances and what that patient is going through, so we have to have a bit of flexibility, but they have to be unable to sign their name and they have to explain why they are unable to sign their name.

[Danny Kruger]

I hope that this does not appear pedantic, but we are talking about life and death after all. The patient’s inability to sign their name could be psychological; it is not as if they will have to do a writing test. They simply have to say that they are unable to sign their name, unless the hon. Lady is proposing that there could be some sort of test for that.

I entirely support amendment 321 in the name of the hon. Member for Bexleyheath and Crayford about the proxy being obliged to state the reason why—it is good to finally have the question “Why?” being asked in the Bill. Nevertheless, there is no obligation for anything to be done about that reason; someone could give a reason that would be regarded as irrelevant. I respect the intention behind the amendment, but it does not clarify the point that literally anybody could effectively get a proxy to sign their name, having said to the assessing doctor, “I want my friend to sign for me.”

[Kim Leadbeater]

That is the sort of thing that the doctor would explore with the patient. It would happen in a very limited set of circumstances. We have to accommodate people who are physically impaired as a result of their terminal illness, and we have to include that there are a range of circumstances where this might apply. The proxy is being asked not to make any kind of judgment or assessment, but merely to act as an intermediary for the patient if they are unable to sign for themselves. They would have to explain why they are unable to sign for themselves, and the proxy has to be satisfied that the person understands the nature and effect of the making of the declaration.

I thought long and hard about who should and should not be accepted as a proxy. As always, I try to imagine how it would be seen by someone with a terminal illness. As we know, no two people are the same, nor are their circumstances. The hon. Member for East Wiltshire said that surely it should be done by someone the patient knows. The clause defines a proxy as someone the patient has known for two years, which is an important inclusion, but not everyone might have known for two years a person who they are comfortable asking to undertake that role.

I also appreciate the challenges with the wording

“of good standing in the community”.

I will let the hon. Member for East Wiltshire and the right hon. Member for North West Hampshire fight that out among themselves. I am sure we all have our own version of what that means.

I have explored various options and, contrary to the suggestion of the hon. Member for East Wiltshire, I have spent a huge amount of time on this question, because it is very important. Looking at different lists, there is the list of people who can sign the back of someone’s passport. I do not think that would be appropriate, so I moved away from that. I have also looked at much shorter lists. I do think that this question would be part of a consultation; it is really important to get it right, which is why we must have it as part of a consultation. I am content that having the Secretary of State put it in regulations is the right thing to do.

As I said, I am happy to support amendment 321 in the name of my hon. Friend the Member for Bexleyheath and Crayford. It is a sensible amendment that makes the reasons for the use of the proxy more transparent. If amendment 253 in the name of my hon. Friend the Member for Filton and Bradley Stoke (Claire Hazelgrove) is moved, I am happy to support that too. As the Minister said, a cancellation need not be in writing; it can be made orally or through any other form of communication.

Amendment 321 agreed to.

Amendment made: 473, in clause 15, page 11, line 3, leave out from “person” to end of line and insert

“of a description specified in regulations made by the Secretary of State.”—(Kim Leadbeater.)

This amendment provides that persons of a description specified in regulations (rather than persons “of good standing in the community”) may be proxies.

Amendment made: 253, in clause 15, page 11, line 3, at end insert—

“(6) For the purposes of this section “declaration” includes the cancellation of a declaration.”—(Sean Woodcock.)

This would allow a cancellation of the first or second declaration to be signed by a proxy.

Clause 15, as amended, ordered to stand part of the Bill.

Clause 16

Recording of declarations and statements etc

Amendments made: 209, in clause 16, page 11, line 8, leave out paragraphs (b) and (c) and insert—

“(b) a report about the first assessment of a person is made under section 7;

(c) a report about the second assessment of a person is made under section 8;”.

This amendment is consequential on Amendments 420 and 421.

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;”.—(Kim Leadbeater.)

This amendment is consequential on NC21.

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[Kim Leadbeater]

The amendments are designed to streamline the drafting of the Bill. Taken together, they create a new definition of a recordable event, namely those events set out in clause 16(1), where declarations and statements are required at any stage of the process. We can all agree that record keeping is essential, so it is necessary to define the events that should be recorded. I commend the amendments to the Committee.

[Danny Kruger]

I very much respect the hon. Lady’s intention, and I support the amendments. On clause 16, however, I must take the opportunity to express a certain concern. The clause applies if, under subsection (1)(b), the co-ordinating doctor

“refuses to make…a statement”

to be entered into the person’s medical records. That is good but, as I understand it, a statement could be made that complies with the Bill but does not put on record, in relation to subsection (2), which requirements the co-ordinating doctor did not believe were satisfied. We have missed an opportunity to have more clarity about which exact requirements have not been met. There is also the eternal question about the co-ordinating doctor’s reasons for reaching that conclusion. I just note the missed opportunity to be a little safer with the drafting.

My more general point is about the importance of effective record keeping and declaration. I thank the hon. Member for Spen Valley, who throughout the whole Bill process has stressed the importance of good data collection and record keeping, which will be vital so that in later years, if the Bill passes, we can judge whether it is working as intended.

I am concerned about going on the evidence of other countries, which is frequently adduced in support of the Bill, particularly in respect of the absence of evidence of coercion, questions around capacity, proper administration of drugs or the support that patients receive. It is often said that concerns are exaggerated or inappropriate, “because look at what happens in other countries”, but let me briefly run through some evidence from abroad.

The fact is that no other country does adequate record keeping. One ambition of the hon. Member for Spen Valley that I really do share is to have a better system of keeping data than in other countries. In Oregon, the most recent annual report demonstrates a whole series of failures in record keeping. Ingestion status was unknown for 25% of the patients prescribed the drugs, so we do not know whether they took the drugs or what the process was. In 72% of cases, it was unknown whether there were complications; we have been talking about how exaggerated my concerns and those of other Members are about complications, but in 72% of cases in Oregon we do not know. In 30% of cases, it was unknown whether a healthcare provider was present. In 44% of cases, the duration between ingestion and death was unknown.

I very much recognise that the intention of the Bill is not to have those sorts of mistake. Indeed, the intention is to ensure that some of them should be impossible, because a doctor should be present and so on. Nevertheless, there is evidence that in other countries that have inspired the Bill, the data is inadequate. I will give a few more examples.

British Columbia has poor documentation, incomplete assessments, recurrent and excessive delays in reporting. In the debate on the last group of amendments, we spoke about the necessity that a doctor be informed if a declaration is cancelled; I am very concerned that that will not happen quickly and that people could fall through the gaps. That is what happens abroad. We have seen evidence from the former Attorney-General of Victoria, Australia, of all sorts of irregularities, with doctors falsely certifying that patients had signed statements and so on.

[Kim Leadbeater]

I do not know the details of the individual cases that the hon. Member speaks about, but he makes a powerful point and we absolutely agree on the importance of recording and monitoring. I know that he voted against the changes at clause 12, but I hope he gets some reassurance from the changes that the commission would bring in. Having the commission and the panels would ensure robust monitoring and reporting. I hope he agrees that that is a positive step.

[Danny Kruger]

I absolutely recognise that the hon. Lady has every intention of insisting that the system works well, that doctors do their job and that good record keeping happens. My concern throughout has been that we have not been robust enough in ensuring that all of that happens.

A huge amount of faith is being placed in the good professional conduct of doctors. Patient autonomy has been stressed, but it often translates into doctor autonomy. We are relying enormously on doctors doing their job well, and we are giving them significant latitude to do their job properly. As we see in other jurisdictions, particularly when assisted suicide becomes normalised and services are established explicitly to provide assisted suicide, we get into a dangerous area in which adequate documentation and reporting might not happen.

I will conclude with evidence from Canada, which is a very comparable country; it has a slightly different mechanism for delivering assisted suicide, but its legal framework is very similar to ours. The Health and Social Care Committee in our last Parliament received evidence from an academic in Canada, Dr Kotalik, who stated that federal regulations had been

“mandating a collection of data from MAID providers”,

just as the Bill will do. However, he noted that

“those legal and regulatory efforts have yet to produce evidence that the program operates as intended. We have no publicly accessible evidence that the eligibility criteria and safeguards prescribed by law were respected and that the Criminal Code has not been transgressed.”

It is fine for us, in this Committee and in Parliament, to specify that all doctors should do their job properly and that all data should be appropriately collected, transmitted and recorded. Nevertheless, as we all know from our casework, the reality is often one of bureaucratic mistakes being made, albeit not with any ill will. Given the volumes that we may well be dealing with, I think it is appropriate to raise significant concerns about the operation of the Bill and the data collection that we seek.

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[Kim Leadbeater]

I commend the amendment to the Committee.

Amendment 479 agreed to.

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18

Provision of assistance

Amendment made: 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,”.—(Kim Leadbeater.)

This amendment is consequential on NC21.

[Danny Kruger]

I beg to move amendment 462, in clause 18, page 12, line 20, at end insert—

“(3A) When providing a substance under subsection (3) the coordinating doctor must explain to the person that they do not have to go ahead and self administer the substance and they may still cancel their declaration.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 463, in clause 18, page 12, line 34, leave out paragraph (c).

Amendment 497, in clause 18, page 13, line 9, leave out “decides” and insert

“informs the coordinating doctor that they have decided”.

This amendment provides that the duty to remove the approved substance arises on the coordinating doctor being informed that the person has decided not to self-administer the substance.

Amendment 498, in clause 18, page 13, line 10, leave out

“that the substance is not”

and insert

“to believe that the substance will not be”.

This amendment clarifies the circumstances in which the coordinating doctor is under a duty to remove the approved substance from the person.

[Danny Kruger]

This group of amendments contains two sub-groups that I shall deal with separately. Amendment 462, in my name, and amendments 497 and 498, in the name of the hon. Member for Spen Valley, concern the information given at the provision of assistance and decisions around that. My amendment 463 concerns the question of assistance in the final act.

This is a rather sombre moment in the Bill, because it is somewhere in clause 18, between subsection (9)(a) and subsection (9)(a)(i)—between the self-administration and “the person has died”—that the death happens. The amendments are about making sure that we understand what is happening here and whether it is safe.

Amendment 462 would require the doctor to make it clear to the patient at the final moment that they do not have to proceed. Of course, this is clearly the implication of the Bill. We have stressed autonomy all along. Everybody who is helping us to draft the Bill, all colleagues in the House and all doctors understand that of course the patient is not obliged to proceed at this point. The reason for the amendment is to think about the patient: to put ourselves in the mind of the person who has gone a long way down the road, who has summoned multiple professionals to endorse a decision that they have made and who has, we hope, involved their family and other people in their life, all of whom will be aware of what is about to happen and will, we also hope, be supportive of that decision or at least neutral about it.

That person finds themselves suddenly at the moment when the drugs are due to be set up for self-administration, a point that we will come on to. That is the final opportunity that they have to decline to proceed. Throughout the Bill, hurdles and gateways have been introduced through which a patient must proceed. In many respects I do not think them adequate, but it is acknowledged by the framers of the Bill that it is necessary to pass through certain hurdles and, in what might appear to be quite a formulaic way, require the patient to confirm and reconfirm that they have a clear, settled and informed wish.

What we do not have at this vital moment—in a sense, the only moment that matters, because everything up to this point has been preliminary; it is at this point that they step through the final gateway—is an obligation, expectation or requirement for any conversation to take place. The doctor is expected to satisfy himself or herself that the patient

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

and must be prepared to swear to that. Nevertheless, there is no expectation that they will have a conversation. We can pretend, imagine, hope or surmise that some kind of conversation would happen at that point—“Do you want to proceed?” “Yes, I do”—but we are not requiring it.

I raise this point in the clear and certain knowledge that many people do, at that moment, have second thoughts. We know that from the number of people who contemplate and get very close to the act of unassisted suicide and step back, literally, from the brink. I want to insist that there is an opportunity here to step back from the brink, just as our suicide prevention strategy seeks to ensure that at the moment when and in the places where many people tragically do take their own life, on bridges or on Beachy Head, there are signs saying, “Call the Samaritans” or “You are not alone”. I want to specify clearly that this is that moment, rather than it being assumed that the train has left the station and the person is just on it now. I think it would be a helpful amendment.

I cite written evidence from Dr Philippa Youd, writing in a personal capacity:

“I have witnessed ‘post-euthanasia regret’. I was 18 when my mother took her own life due to ‘interminable suffering’. She knew what she was doing—she had tried before. Just before she slipped into a coma, she told me she was sorry and that she regretted it. The inquest therefore deemed her death an ‘open verdict’. It was suicide, but it was suicide that was regretted, despite true intent and interminable suffering”—

and no doubt capacity and a lack of coercion. Dr Youd continues:

“No one can EVER be sure they want to die until the moment of death. They may still change their mind and then it is too late. No one can know what patients will truly face, emotionally and cognitively, at the point of death. I have witnessed firsthand the tragic circumstance of someone changing their mind after choosing to die. There is no peace in that.”

I hope that hon. Members will not consider that this amendment is unnecessary embroidery or that requiring a simple statement to be made is some kind of imposition on the autonomy of doctors or patients. Someone should still be able to turn back and change their mind at this point.

[Kim Leadbeater]

The hon. Gentleman is making a powerful speech, and I thank him for the respectful way in which he is doing so. He has given an example of a very personal story; it is also important to remember the other personal stories we have all heard. We have with us today in the Public Gallery family members who have lost loved ones. Catie’s mum went to Dignitas in Switzerland for an assisted death, and her daughter could not go with her. As a family they have suffered to this day as a result of that experience.

We need to be really careful about the language we use around suicide. We have spoken about this before. The cases we have heard of are not people who want to die. They are people who want to live, but they are terminally ill. We need to be really sensitive to that, having heard so many examples of families who have been through these really difficult situations. But the hon. Gentleman makes a very good point, and I am minded to support his amendment because I think it comes from a good place.

[Danny Kruger]

I am grateful to the hon. Lady. I hear what she has said; we have had this conversation before. I am afraid that I do insist on my right to use the English language accurately. What is proposed in the Bill is a carve-out of the Suicide Act, so I regret to say to the hon. Lady that I will continue to describe it in terms that are appropriate to it. I hope I do so with absolute sympathy and respect for the many families who have suffered from the trauma of seeing their loved ones die badly—loved ones who would have wished for an assisted death under the terms of the Bill. I am very glad to hear that the hon. Lady supports my amendment. I do not think it would be any sort of imposition on families for the doctors to let the patient know at the last moment that they have the opportunity to turn back.

[Sean Woodcock (Banbury) (Lab)]

The hon. Gentleman is making a really powerful speech, and I am minded to support the amendment on the basis that there will be a small but significant group of people who, having gone through the whole process, will feel they have been a burden on the people who have gone to all the effort, through every stage, to get to the end, so if they have doubts at the end, they may be reluctant to change their mind. It will be a very small group, but I do think it is significant. I see it as the re-establishment of autonomy for the patient, which we all believe in; does the hon. Gentleman agree?

[Danny Kruger]

That is absolutely right. We have to think about the no doubt quite turbulent emotions that people will have as they approach the end of their life, and to reiterate their genuine autonomy. They are not on a conveyor belt that they cannot get off until the very last moment—until they have passed through this gateway. The amendment seeks to remind them and, indeed, their families of that. I am afraid we do hear terrible stories of people who have arranged their assisted death: often family members have flown in from abroad, doctors have been summoned and so on, and then they feel they have to proceed because, as the hon. Gentleman says, they feel a burden as it is and do not want to be an annoyance at the end by making everybody wait. I am afraid that is indeed the reason for the amendment. I am pleased to hear that it sounds like it will be accepted, and I am grateful to Members who will support it.

Amendment 463 is the other, more substantial, amendment in my name in this group. It would leave out paragraph (c) of clause 18(6), which says that the doctor can assist the patient

“to ingest or otherwise self-administer the substance.”

Here we are in a lot of difficulty and a grey area. Let me try to unpack the reasons for objecting to paragraph (c). The hon. Member for Spen Valley argued in an interview that there is a “very clear line” between the Bill and euthanasia, which is someone else doing the deed. She said that the act

“has to be the decision of the individual, and it has to be the act of the individual”,

which

“creates that extra level of safeguards and protections”.

I agree with her—it is right that we introduce the additional safeguard of insisting that the patient performs the final act themselves.

I recognise that there is a distinction between euthanasia and assisted suicide, and I support the hon. Lady’s attempt to insist on that distinction in the law. It is another safeguard. But the fact is that there is a blurred line between the two, and I can also understand why many people object to the exclusion of euthanasia—of the fatal act being administered by other people. A doctor from Canada said it was inherently ableist to require the patient to self-administer, and I think that is unarguable. If that is the case, the logical provision would be to enable euthanasia, if one believes in the autonomy of the patient.

I am afraid my strong belief is that the reason why euthanasia has not been proposed in the Bill or by the campaign, which has been led by an organisation that used to call itself the Voluntary Euthanasia Society, is because the campaign has concluded that such a Bill would not pass Parliament and believes—I think correctly—that Members of Parliament and members of the public would object to euthanasia. But the logic of the Bill and of the campaign is actually for euthanasia, if one believes genuinely in autonomy, in equal rights and in not discriminating against people who are physically unable to perform the act themselves.

Despite my efforts, hon. Members have not been able to conceptualise the difference between withdrawing a medical treatment that affects a particular medical condition on the one hand, and administering drugs that annihilate the person on the other. There is a meaningful and important difference between those two things. One is a person declining to use a shield, and the other is the person using a sword against themselves. I think there is a difference there, and I regret that colleagues do not see it.

Where I do not see a difference, however, is between a person injecting themselves and asking someone else to inject them. There are two versions of the death of Saul in the Bible. I think this is the only reference to the Bible that I will make in this whole debate, and I make it partly to show that there is an inconsistency in the Bible—there is not a single Biblical view of these matters. In one account of the death of Saul, having been defeated by the Philistines, he asks his servant to run him through with his sword, but his servant refuses, so he falls on his own sword and kills himself. In the other version, he gets a passing soldier to run him through—to kill him.

To me it does not matter: the inconsistency in the story is interesting historically, but conceptually, logically and morally I do not see the difference. Whether you fall on your own sword or ask someone else to do it to you, it is still a sword, you are still actioning it and you are still responsible, if we recognise that the individual has autonomy. But there is a practical difference. We are talking about assistance to die and the role of another person who supports your decision and helps you to fulfil it, but that results in an obscuring of the practical difference. In practice, as we see in clause 18(6), the assistant comes very close to euthanasia. The role of the assistant, in my view, is closer to that of the soldier who kills Saul than of the servant who refused to do it.

[Kim Leadbeater]

The hon. Member is making an interesting philosophical point with his biblical references. I think the point he may be making is that there might not be any difference for the individual, as the result is sadly the same, but I put it to him that there is quite a significant difference for the other person. If we think about the autonomy of the medical professionals we ask to be involved in the process, there is a strong argument that it would be very different for them to be more involved in the process. Does that makes sense?

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[Danny Kruger]

I am grateful—I really do thank the hon. Lady, because the effect of this process on the medical professionals who will be involved is a very important consideration, and one that we have perhaps not given enough attention to. That is why we will come to the conscience clause in due course, although we have discussed it a little already. The hon. Lady is absolutely right that there is a difference for the medics in the extent to which they are involved in the administration of the death. I am afraid I do not see a major moral difference between providing the wherewithal—setting things up for, or indeed helping, the patients to ingest or otherwise self-administer the fatal drug—and people performing the act themselves. The distinction is very obscure; there is a significant grey area there.

On the hon. Lady’s point about appropriate consideration of the feelings of the medical profession, if she believes in doctor autonomy, she should believe that doctors ought to have the autonomy to decide for themselves whether to perform euthanasia, if euthanasia were legal. That is what happens in other countries. In Canada, doctors can decline to take part, or they can participate.

Given the question of autonomy, it is worth noting that in countries where euthanasia is legal, it is the overwhelming choice of the patients, as I think it would be for me. If I were facing that terrible moment and choice—we will come in due course to the question of the drugs involved and the process of taking them, but swallowing all these pills is not a pleasant process—it would be far easier, more humane and less painful for a doctor to administer the drugs intravenously. I visited Canada and met a doctor who had been responsible for over 300 deaths, which she herself has performed, because that is the overwhelming choice of the patients. As I am sure the hon. Lady would agree, that doctor is acting with full professional discretion and autonomy.

To go back to my point, I am afraid this is one of the impossible dilemmas that the Bill and the whole concept of assisted dying set up: whether we allow the doctor to do it to us. My concern is that if the stress on self-administration is genuinely felt—not, as I cynically believe, because this is the only way to get assisted dying through the House of Commons—because the Bill’s authors recognise the need to be absolutely sure that the act is voluntary, and if the reason why we insist on self-administration is because we want to be sure that the act is voluntary, what does that say about all the so-called safeguards that exist up to this point? We have been told that those safeguards are sufficient to ensure that we have absolute confidence about the person’s clear and settled wish.

If we are sure that people at this stage in the process have a settled, informed and free wish to end their lives, why should they not be able to ask a doctor to do it to them? The only answer to that question can be that we do not genuinely believe that we are completely sure. We want, subsequent to death, to be sure—in terms of our own moral propriety and sense of amour-propre—that those people did it themselves. It was not our choice; it was not us doing it to them—they did it.

[Kit Malthouse]

I am a little confused by my hon. Friend’s logic. He has literally just proposed an amendment for the doctor to ask, at the last, whether the person still wants to proceed. Surely self-administration is the ultimate act of consent, which his own amendment requires a doctor to establish right at the last moment.

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[Danny Kruger]

My right hon. Friend is absolutely right. I support the distinction between self-administration and euthanasia. I am in favour of all possible safeguards and every possible opportunity to give the patient the chance to step back from the brink. The point I am making is that I do not recognise the logic of the distinction that the Bill insists on. Indeed, in the provision that I am concerned about, subsection (6), the distinction in fact does not apply.

If we believe in autonomy and in giving people the opportunity for assisted suicide, we are, naturally enough, concerned that that should be available to people who cannot physically perform the act themselves. I am not trying to argue in favour of euthanasia; I am saying that we will get to euthanasia if we let the Bill through. Even in the Bill as it stands, we are halfway to euthanasia with subsection (6). I am confident that, in due course, the campaign for it will grow. In fact, it already exists: people already object to the restrictions implied in the Bill. The campaign will grow to widen the opportunity for assistance to ensure that we can have physician-administered suicide, as happens in Canada and elsewhere, very logically. Once we have crossed the Rubicon of assisted death, it is a straight road to euthanasia. [Interruption.] I am sorry that the hon. Member for Stroud is amused.

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[Danny Kruger]

Once again, we are in an extraordinary no man’s land between medical treatment and something else that we cannot find a word for. The hon. Gentleman is absolutely right. Of course, it is appropriate in medical treatment for a nurse or doctor to assist in the administration of a treatment. As he suggests, if the person found it difficult to raise a cup to their lips, the nurse would help them. Indeed, if they found it difficult to perform an injection, it would be expected that that would be done by the nurse or doctor anyway. But here we are setting up a strange new method of administering a so-called treatment in which the patient has to perform the physical act themselves.

It is apparent from the clause that it is very unclear what assistance actually looks like, so yes, I absolutely imagine that if the patient were struggling to raise the cup to their lips, a nurse or doctor who was present at the final act in an assisted suicide would help them to do so. Similarly, if the patient were finding it difficult to put their finger on the syringe, it would be appropriate—normally, one would expect—for the medical professional to lift the patient’s finger and put it in the right place. What happens next? Do they then apply a little pressure if the patient is finding it difficult to depress the plunger on the syringe? If the cup is at the lips, do they tip it up and let gravity take its course? These very complicated questions about where assistance ends and autonomy begins are, I am afraid to say, impossible to specify in the Act; therefore, it is apparent that we have a grey area.

I conclude with some evidence that we received from Iain Brassington, professor of applied and legal philosophy at Manchester University. He says:

“how are we to determine how the ‘final act’ of self-administration is to be differentiated from the penultimate act, in which the doctor may assist? How would helping a patient lift the cup to her lips be distinguished from helping her ingest its contents?”—

the hon. Member for Ashford referred to that. He goes on to say that

“the definition of the ‘final act’ is unclear, especially granted the wording of”

subsection (6)(c), and:

“The proposed law says that a doctor may not administer a substance with the intention of causing death, but also that a doctor may help a person self-administer. But how should we draw the boundary between helping a person self-administer, and playing a role in administration?”

I come to the penultimate point—not the final act—of my speech. There is some odd phrasing in subsection (7), and I wonder whether the hon. Member for Spen Valley or the Minister can help to parse the English. It says that

“the decision to self-administer the approved substance and the final act of doing so must be taken by the person”.

We understand about the decision being taken by the person, but the phrasing is that the final act “must be taken” by the person. I am not familiar with that construction. Does one take an act? Is that English? You perform an act—an act is not taken, it is done, by a person acting autonomously. The question of whether this is an active or a passive concept runs to the heart of my concern about the clause, and we need to think about redrafting, at least in deference to the English language.

Somewhere in this clause there is a magic moment when assistance gives way to autonomy, and the penultimate act by the doctor yields to the final act, which is supposed to be by the patient. We cannot tell when the responsibility for the action passes from one to the other. In proper medicine it does not matter because the medic works with the patient, but here it does matter. We are insisting that there is a difference between a doctor setting up a death, and the patient performing the action of suicide.

I will end by referencing the case of R v. Kennedy in 2007, a case on which Lord Bingham opined, about the culpability of someone who died from a heroin overdose. Was the person who gave him the drugs and tied the tourniquet around his arm responsible? Was it murder, or indeed assisted suicide? The judge decided that it was not, but made this point:

“It is possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection.”

Given that ruling, we are in a world of difficulty with the suggestion that it is legally possible for a doctor to assist a patient to ingest or otherwise self-administer. To assist someone to self-administer is tantamount to administering. I welcome suggestions from other Members, the Minister, or the hon. Member for Spen Valley about whether it is possible to provide guidance that gives greater clarity on what the clause means, or whether subsequent amendments will help to resolve the problems that I have, but I am afraid I do not think it will be possible to make an adequate distinction between assisted suicide on the one hand—in which full responsibility, not just for the decision but for the performance, rests with the patient—and euthanasia on the other. I do not think there is an adequate logical difference, and the practical difference we are attempting to enshrine here will be very quickly obscured.

[Naz Shah]

I thank the hon. Member for East Wiltshire for his amendment, and for speaking in the powerful, sensitive way that he did. I also thank my hon. Friends the Members for Spen Valley and for Banbury, who made interventions.

I did not intend to speak to this amendment, but having heard the hon. Member for East Wiltshire speak so powerfully and sensitively, it is important for me to share a few things. My hon. Friend the Member for Spen Valley has said a couple of times that the difference between people who commit suicide and those who will take this route is that the patients have been given less than six months to live, and that was not a choice. I was a Samaritan for years, because I had two failed suicide attempts in my early years, and since then I have battled with mental health demons all my life because of my experiences. To suggest that there is a difference between someone who gets a terminal illness and wants to take this act and people who want to commit suicide, and to suggest that they are doing it out of choice, is wrong. I felt really emotional when that exchange was happening. The reason why I think it is wrong is that, at the time that I wanted to commit suicide, I did not feel that I had a choice. I could not see a way out.

When I was on those Samaritans phonelines, speaking to people who rang in to unpick their feelings about what was driving them to feel suicidal in that moment, it was not because they want to die, but because they were in circumstances that drove them to feel that they had no option but to commit suicide. In some instances, it takes an amount of courage and bravery to even contemplate that option. To diminish that, which I feel is what has, intentionally or unintentionally, happened on occasion, is really wrong, because I have been there, and it was not easy and it was not because I wanted to die.

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[Danny Kruger]

My point is that it is very difficult to draw a line here. I recognise the scenario that my hon. Friend raises: why should a nurse not be able to hold a straw for a person to drink from? I might say that should be acceptable; however, I do not think it should be acceptable for the nurse to tip the pills into the patient’s mouth. Does he think that scenario would be acceptable? Or to give another one, would it be acceptable to actively provide force on top of a patient’s finger to press a syringe? Would he regard that as acceptable assistance?

[Dr Shastri-Hurst]

That is why clause 18(7) is so important: the final act must be undertaken by the person seeking an assisted death. The example my hon. Friend gives of tipping tablets into a mouth is a final act. Pushing a syringe is a final act. There is a significant distinction between an individual or practitioner holding a cup with a straw and the person seeking an assisted death moving their mouth towards the straw, sucking from it and imbibing the substance and the passive act of a substance being raised to that individual’s lips and poured in without any movement by the individual seeking an assisted death themselves.

[Danny Kruger]

When we talk about this in future debates, it might be appropriate for this conversation to be referenced. I think my hon. Friend is suggesting that it should be acceptable, and that assisted death would be legal, as long as the patient moved their head towards the straw and cup, and that it would be illegal, according to my hon. Friend’s definition, were a doctor applying a cup to a patient’s lips and the drugs fell in by gravity. Is that right? Is that how judges in future should determine whether assistance has crossed the line?

[Dr Shastri-Hurst]

It is very clear from subsection (7) that this must be an active step taken by the individual. There is a risk that we go down a rabbit hole in terms of—[Interruption.] I am sure my hon. Friend would like me to finish my point. We risk going down a rabbit hole in drawing examples. I raised the example of a cup, but of course there are much wider assistive technologies that can be used and are used in different jurisdictions. I gave the example to illustrate the point that this is an active act, not a passive act.

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[Dr Shastri-Hurst]

My right hon. Friend makes an important and powerful point. I think there is a consensus among the Committee that there is no desire for people to take this ultimate step at an earlier stage than is absolutely necessary for them. My very real fear is that, were we to adopt this amendment, we would bring forward that point of decision.

[Danny Kruger]

The logic of that argument is to allow physician-administered suicide, because there will be a point at which people are physically unable to perform the act but have capacity, and their autonomy should be respected—

[The Chair]

Order.