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

Jake Richards Excerpts

Committee stage
Wednesday 26th February 2025 Public Bill Committees

[Danny Kruger]

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

[Jake Richards (Rother Valley) (Lab)]

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

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

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

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

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

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

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

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

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

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

[Naz Shah]

My hon. Friend is saying that that will take two years. The MCA, which has been implemented over 20 years, is misunderstood. Does he not see the risk of two years? This is new territory, without change—

[Jake Richards]

We need to be careful when we say that the Mental Capacity Act is misunderstood, full stop. Let us be clear—

[Naz Shah]

Not full stop.

[Jake Richards]

Well, that was the sense—

[The Chair]

Order. Let the Member respond to the point made in the intervention.

[Jake Richards]

I am grateful, Mr Dowd.

The evidence that we have received is that this is a test. These are assessments that happen every day across the country. Now, there are more complex assessments, and there will without doubt be areas in which the assessment is not done as rigorously as it should be done, but that is why I am assured by the safeguards in the Bill that if there is any doubt—any doubt—as to capacity at first instance, there will be a full and thorough assessment by a psychiatrist.

Let us think that through for a minute. Any competent psychiatrist trained in this area will no doubt have a sense of what the Mental Capacity Act says and of the normal test for capacity. Someone who is seeking assistance to die from a doctor who has doubts as to their capacity will have been referred. To my mind, it is unfathomable that that assessment, at that stage, would not be rigorous and would not satisfy every Member that it had been done to the correct extent practicable.

[Naz Shah]

I absolutely agree with my hon. Friend about that in most cases, but in nine of the 10 cases that went to court, young girls were found to have capacity, but their treatment was stopped, leading to their inevitable death. That is not excluded here.

[Jake Richards]

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

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

[Danny Kruger]

rose—

[Jake Richards]

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

[Danny Kruger]

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

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

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

--- Later in debate ---

[Jake Richards]

That was an intervention that I was grateful to take. I accept the point that there are dangers of a system that somehow incentivises this. That is why the Bill has to have such strict safeguards and such strict regulation of medical practitioners to comply with the law. The point about mandatory referral is key; I would have real concerns about this area of the Bill without that amendment, and unless the sponsor of the Bill had not made it very clear that she would be supporting it. But I take the point.

[Lewis Atkinson]

Does my hon. Friend agree that clause 8(6), which requires the second doctor to be independent of the first—they must not be

“a partner or colleague in the same practice or clinical team”—

would protect against the situation on which the hon. Member for East Wiltshire speculates?

[Jake Richards]

Yes, there are safeguards and mechanisms in the Bill to ensure that and to protect from a culture that would incentivise this practice.

[Naz Shah]

Will my hon. Friend give way?

[Jake Richards]

No, I am not going to, actually. I am taking my rights.

My final point concerns section 1(4) of the Mental Capacity Act and the discarding of the principle about whether a decision is deemed to be unwise. This is an issue we have already debated, but it is really important. Introducing a best interests test is, to my mind, impossible without ending up with a law that discriminates against certain groups. Essentially, it is impossible to do fairly.

I remain to be convinced. If there were an amendment that could do what I think the hon. Member for East Wiltshire wants, I would support it. If there were an amendment that could look into someone’s mind and make sure that they are doing this for reasons that society would deem fit, I would support it, but I think that that is impossible. What the Bill aims to do is assess a person’s capacity and ensure that they are making this decision voluntarily. It also aims to protect them from the influence of third parties and outside sources. That is the only way, if this principle is to be adhered to.

Finally, I will be voting against the amendments, but I will finish where I started. I have genuinely thought long and hard, in particular about the presumption. I have spoken to experts who disagree with me, but in my mind it comes down to whether we rip things up and start again or whether we add rigorous safeguards, practices and processes, which may be a bit more boring but will actually be more effective at protecting any patients who go down this road.

[Sojan Joseph (Ashford) (Lab)]

I rise to speak in support of the amendments. Having worked as a mental health nurse for 22 years, I completed mental capacity training many times in my career, and I carried out capacity assessments as part of my day-to-day job. I think that the capacity assessment proposed in the Bill is not safe enough. That was one of the main reasons I voted against the Bill on Second Reading. I have spoken to many people who oppose the Bill, and one of their concerns is about the capacity assessment.

We have talked about capacity assessments every day in this Committee. It is one of the key issues that we will need to resolve to strengthen the Bill if it goes through. One of the Royal College of Psychiatrists’ concerns is that capacity decisions are

“opinions with a margin of error and are time specific. A person’s capacity can change”.

I will talk about my experience with those margins of error.

A person’s capacity can be influenced by various factors, including their life circumstances, the medication they are taking or severe pain. Suicidal thoughts due to their mental state or depression can also influence their capacity. I have worked in acute mental health units. Every day, we carried out capacity assessments, including before we let someone out of the ward, whether they were admitted under the Mental Health Act or were receiving treatment as a voluntary patient. If somebody wanted to leave the ward, before the member of staff opened the door, they had to assess that person’s capacity. Sometimes a person might have said, “I am going to kill myself,” and the nurse would have had to decide whether or not they had capacity before opening the door.

My hon. Friend the Member for Bradford West has talked about unconscious bias. The initial capacity assessment when a person comes to a hospital is very important. If a doctor has assessed at the beginning that the person has capacity, the following assessment can be influenced by that initial assessment. I totally agree with my hon. Friend’s argument about unconscious bias in capacity assessments. As Members have mentioned, the Bill proposes many occasions in the process when capacity will be assessed, but I am still not confident that each capacity assessment will not be influenced by the initial assessment. The amendments would strengthen that area of concern.