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

Jake Richards Excerpts

Committee stage
Wednesday 12th February 2025 Public Bill Committees

[Rebecca Paul (Reigate) (Con)]

rose—

[Jake Richards (Rother Valley) (Lab)]

rose—

[Danny Kruger]

I will give way first to my hon. Friend and then to the hon. Gentleman.

[Danny Kruger]

I am very grateful to my hon. Friend.

[Jake Richards]

The issue in this interesting debate between the hon. Member and the right hon. Member for North West Hampshire is whether the assessment is of the person making that decision—have they been coerced?—or of actions of a third party. Someone cannot themselves be encouraged; someone else encourages them. It may very well be the case that an individual making a decision has been encouraged to do so, but the issue for an assessing doctor, panel or judge is surely whether that person’s ability to make the decision has been affected. That is not about their being encouraged; it is about whether they have been coerced. That is the differentiation between the two concepts. The concept of coercion is a much better way of ensuring the assessment is about the person’s ability to make the decision, not about third-party factors.

[Danny Kruger]

The hon. Gentleman makes an important point. However, as we discussed earlier, the terms of the Suicide Act 1961—which explicitly include the term “encouragement”—include pressure. The understanding and interpretation of “encouragement” include the effect of the encouragement, which is that someone has been persuaded by a third party to take this step, whereas the principle of the Bill is that people are acting entirely autonomously.

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[Rebecca Paul]

I agree that that would have been helpful. We have spent many, many hours today debating these amendments, and having had advance notice would have allowed some reflection and appropriate advice to be taken. If, indeed, the Minister’s position is right, I could have looked at withdrawing the amendment or tabling a new one. However, I have not had time to do that, so I am in a situation where I have to follow the advice that I have had. I think, if the Minister is right, having this on the face of the Bill is potentially a little messy because we would be duplicating, but that is not a massive downside from my perspective, whereas the upside is that, if she is wrong and I and the advice that I have had are right, we would be ensuring a higher level of safeguarding in this Bill.

[Jake Richards]

The hon. Member said that my hon. Friend the Member for Penistone and Stocksbridge and I contradicted each other. I did not quite understand the logic of her argument; I do not deem that we contradicted ourselves one bit. I also want to push back on the point about process. Let us just step back: we have been debating for a number of hours some very sensible amendments, and that is exactly what this Committee is meant to do. I am new here, the hon. Member is new here, but it seems to me that it is exactly right. She has tabled an amendment, we have had good debates on all sides, and the Government Minister stood up and gave the Government’s view of the workability of the Bill and whether the amendment is necessary. Is that not what this process is meant to be doing?

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[Naz Shah]

I thank my hon. Friend for his valuable intervention. He speaks from his personal experience, and this place and this debate are richer for having those experiences shared. It comes back to the comment made by the hon. Member for Solihull West and Shirley; this is about where there is autonomy. This is about people who make that informed choice without coercion, loss of autonomy, undue influence or encouragement. We are talking about those people; we are not talking about those who do not fall into that category.

Those of us in this House know of inequalities that exist in our communities for disabled people, women, or people with mental health illnesses. We already know that; this is about safeguarding and making sure that we are exploring the reasons why, to safeguard those who do arrive at those conclusions—at that decision of autonomy—so that, should this Bill be passed and become law in two years, we as a Committee will know that we have tried our hardest and our best to support my hon. Friend the Member for Spen Valley to make it the safest Bill in the world.

[Jake Richards]

I am very sympathetic to the amendment, which aims to tackle a mischief that we are all worried about, but there are two fundamental problems. The first, which builds on the intervention from the hon. Member for Solihull West and Shirley, is this issue of deciphering if an action is for your own sake or the sake of others. It is a philosophical question: is there ever really a selfless act? Even if we take an act that may be deemed to be for someone else, it may be because we want that person to receive some pleasure, joy or relief, so in my mind there is a danger that this could become a tautology.

Secondly—I hope that you might be able to comment on this—is there not a danger that we are then putting it on doctors and others in this process to undertake an assessment of welfare? When you are deciding whether something is for an individual’s sake, you are making some determination, are you not, as to what is in their best interests? That directly conflicts with the principles of the Bill, which is all about autonomy and an individual’s choice, rather than others saying what you should and should not do.

[The Chair]

Order. I have no comment to make—“you” again.

[Jake Richards]

Forgive me, Mrs Harris. I apologise profusely.

[Naz Shah]

If we are talking about welfare, I would have thought that this Bill would have included welfare checks, which are absolutely crucial. My definition of welfare encompasses the whole being, with the person at the centre. In this case, welfare would mean putting somebody with a terminal diagnosis at the centre of what service provision looks like, be it for assisted dying or a care pathway through palliative care.

[Jake Richards]

rose—

[Naz Shah]

I am happy to give way if my hon. Friend wants to elaborate.

[The Chair]

Order. Before the hon. Gentleman starts, can I ask for short interventions, please, not speeches?

[Jake Richards]

What I meant by a welfare decision is a paternalistic view, whereby medical practitioners and others say what is in the best interests of an individual, rather than the individual themselves.

[Naz Shah]

I appreciate the clarification and the explanation. I do not feel that having doctors doing this is a contradiction of this Bill at all, because if we go by the letter of the Bill and how it is set out, when a doctor offers those choices, whether it is assisted dying or palliative care, they are giving a choice of welfare options to their patients. That is my understanding, and I am not sure that this is contradicts with the Bill in any way, shape or form.

I have answered my hon. Friend’s first question; can he remind me of his second?

[Jake Richards]

My question was building on the intervention made by the hon. Member for Solihull West and Shirley. It was about whether there can ever be a selfless act.

[Naz Shah]

If we make philosophical and idealistic arguments, we will not be able to legislate on anything. Philosophically, there are people in this House who wear red, blue, green or the colours of smaller parties. We are all different in our positions philosophically. For me, this process is about legislating as well as we can to put safeguards in place that are as strong as possible. I cannot get into that debate because it would not apply to the legal aspect.

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[Danny Kruger]

That is fair enough. The amendment seeks to insist that people will have an assisted death for their own sake. What we are trying to exclude is the opposite of that—that they are doing it for others. The principal reason why people want an assisted death, if they are not being coerced—which we have already sought to exclude—is that their own internalised view that it would be better for other people for them to do so.

[Jake Richards]

Will the hon. Gentleman give way?

[Danny Kruger]

We want to ensure that people decide for their own sake—I will give way in a moment; this is a good opportunity to make this point. The hon. Member for Ashford referred to the Mental Capacity Act, which we have retained as the basis of the capacity test. The Bill would introduce a version of the best interests consideration, which, as we discussed yesterday, will not be triggered in the Bill because that consideration is not triggered if there is capacity—and if there is not capacity, things do not proceed.

I think it is appropriate that the people making the decision have some consideration of their best interests. I understand that we want to make this all about autonomy, so perhaps a better description is a self-interest consideration. That is what the amendment requires doctors and, later, the judges to conclude: is the person making the decision in their own interests, for their own sake? Are they doing it for themselves? If they are doing it for other people, that is problematic.

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[Jake Richards]

The hon. Member is making a powerful argument, but there is a difference between trying to control external factors that may affect an individual making a decision and primary legislation that tries to regulate a person with capacity making an assessment of what is in their best interest. Can he think of any other circumstances in our society or our law where someone with capacity is restrained from making a best-interest decision in primary legislation?

[Danny Kruger]

I am grateful to the hon. Gentleman because he highlights the absolute novelty of this law. We are proposing to do something completely unprecedented. As hon. Members have tried to argue over the last two days, it takes us into extremely dangerous waters with respect to the most vulnerable, so what we are trying to do, through what I concede are some fairly blunt instruments, is to write into the Bill some very strong and clear protections for the most vulnerable people. We have tried to do that in various different ways.

This would be novel. Of course, it is true that the criminal law currently recognises motivation—there are all sorts of aggravating factors that look into the motivation of an individual, so the law is not incapable of making that sort of judgment—but the hon. Gentleman is right to say that this would be a novelty. I am afraid the whole Bill is a novelty.

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

Jake Richards Excerpts

Tuesday 11th February 2025 Public Bill Committees

[Jake Richards (Rother Valley) (Lab)]

I am trying to understand my hon. Friend’s argument. In terms of a person choosing to ask their doctor to turn off their life support machine, as opposed to someone offering a person drugs to self-administer, I understand that there are differences in terms of public policy and that, for some, there are differences morally. However, in terms of capacity—the decision as to whether that person can make that choice themselves—why is it different?

[Naz Shah]

The hon. Member for East Wiltshire answered that question eloquently earlier. Although the outcome is the same, we are asking two different questions. The question is not about turning off and unplugging a machine; it is about whether someone will take drugs to end their life.

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

Jake Richards Excerpts

Committee stage
Tuesday 11th February 2025 Public Bill Committees

[Sarah Olney]

I look forward to the hon. Lady’s further comments, but as I said, the psychiatrists were very clear that they did not believe that this was a sufficient safeguard, and we should acknowledge that.

I was unable to put my question to Alex Ruck Keene KC during the oral evidence session, but he kindly agreed to give further evidence in writing in response to a letter I sent to him later that day. That exchange of letters has been published as written evidence. It was his position that, in actual fact, Professor Sir Chris Whitty misinterpreted the Mental Capacity Act when he gave evidence. There is no such requirement in the Mental Capacity Act that states that the more serious the decision, the greater the level of capacity that someone needs to have. Mr Ruck Keene’s view is that that was the common law prior to the Mental Capacity Act coming into force, whereas in actual fact the Mental Capacity Act does not require that the more serious the decision, the more capacity someone needs to be judged to have.

[Jake Richards (Rother Valley) (Lab)]

I am sympathetic to the problem the hon. Lady has identified of people who have a terminal illness as well as other mental health conditions. Instead of rewriting the Mental Capacity Act for this new context, would it not be better to secure safeguards through clause 9, through which further assessments are potentially going to be mandated, if the amendment from the hon. Member for St Albans (Daisy Cooper) is agreed to, for those cases where there is doubt as to capacity? That would add a further safeguard rather than rewriting the established Mental Capacity Act and case law.

[Sarah Olney]

I have no intention of rewriting the Mental Capacity Act. It should stand exactly as it is and be used for the purpose for which it is intended. That is not the intention behind my amendment, which merely proposes that we should assess people’s ability to make the decision and not just their capacity. Many of those who provided evidence demonstrated that merely testing somebody’s capacity to make a decision is insufficient in this case.

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[Sarah Olney]

The hon. Member is absolutely right. That would be another weakness of the Mental Capacity Act being used in this context: if someone is judged to have capacity, they are free to make an unwise decision, yet there is nothing in the Bill to provide a safeguard against people who might have capacity and make an unwise decision because their thinking has been obscured by mental illness, depression or something else.

[Jake Richards]

I have a few questions for the hon. Member. Who does she propose will decide whether a decision by someone who has capacity is wise or unwise? Does she also propose changing the law around patients’ refusing life-saving treatment? Should that be handled under the Mental Capacity Act, as it is at the moment?

[Sarah Olney]

I am grateful to the hon. Member for his intervention, but I am not proposing to change any legislation other than the Bill before us. All the other legislation to which he refers should remain precisely as it is, and for the purpose for which it was intended. He asks who is to say whether someone is making a wise or unwise decision; that is the job of the people who are instructed to provide assessments under the Mental Capacity Act. As was clear from my response to the hon. Member for Reigate, if someone has been assessed as having capacity, there must not be any further interference in their decision-making process, even if there are distinct concerns that that person may be deciding to end their life not purely because of their terminal illness but because they are suffering from depression. There is no other mechanism in the Bill to enable that further safeguard.

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[Dr Shastri-Hurst]

My hon. Friend puts it with his usual candour. He asked a straight question, so I will give him a straight answer: I think there is a difference between somebody who is depressed and somebody who is depressed and suicidal. I have no personal moral objections if someone who has a terminal illness, who suffers from depression and who has capacity as set out through the two-stage test in the Mental Capacity Act, ultimately wishes to end their life because of their terminal diagnosis. If they are doing it because they are suicidal as a consequence of their depression, that is a different and distinct issue. We are talking about individuals who want to end their life because of their terminal diagnosis, not because of their mental disorder.

[Jake Richards]

I keep making the point that clause 9 adds a different element to this process. It says that, when undertaking the assessment, one of the two doctors

“may, if they have doubt as to…capacity…refer the person for assessment”

of their capacity by a psychiatrist. Does that reassure the hon. Member that there is a further layer of safeguards in this area?

[Dr Shastri-Hurst]

That is one of the additional safeguards in the Bill. This Bill has more in-built safeguards than any similar piece of legislation across the world. I think the hon. Gentleman makes a valid point: when a doctor has concerns about somebody’s mental state, they can escalate the case and seek further, specialist opinion.

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

Jake Richards Excerpts

Committee stage
Tuesday 11th February 2025 Public Bill Committees

[Jake Richards (Rother Valley) (Lab)]

I am trying to understand my hon. Friend’s argument. In terms of a person choosing to ask their doctor to turn off their life support machine, as opposed to someone offering a person drugs to self-administer, I understand that there are differences in terms of public policy and that, for some, there are differences morally. However, in terms of capacity—the decision as to whether that person can make that choice themselves—why is it different?

[Naz Shah]

The hon. Member for East Wiltshire answered that question eloquently earlier. Although the outcome is the same, we are asking two different questions. The question is not about turning off and unplugging a machine; it is about whether someone will take drugs to end their life.

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

Jake Richards Excerpts

Committee stage
Thursday 30th January 2025 Public Bill Committees

[Lewis Atkinson (Sunderland Central) (Lab)]

Q Mr Greenwich, we are minded that as well as passing really good legislation we want to get public confidence behind this. We have heard a level of concern from disabled people’s representative bodies about the inadvertent implications of this law for disabled people. Were those concerns shared when you took your legislation through, and how it has gone since the implementation of the legislation?

Alex Greenwich: In New South Wales, and across Australia, having a disability or complex mental health issue like anorexia does not make you eligible at all for voluntary assisted dying. The legislation we are dealing with and you are dealing with is not for people with a disability or anorexia nervosa, and not for people who feel they are a burden. It is for people with a terminal illness who may want the choice of a death that is better than what the illness would otherwise provide.

We worked closely with disability groups in New South Wales. Their main concern was that they would be treated equally in terms of access to the law if a person with a disability had a terminal illness. The key point is that this legislation is a safeguard to those concerns. To the point about people who are starving themselves, that is happening today in the UK because people do not have access to voluntary assisted dying. They are starving themselves to death rather than accessing a regulated scheme where they can discuss all their options and choices.

[Jake Richards (Rother Valley) (Lab)]

Q This question is probably best for Alex. Yesterday we heard evidence about the health inequalities in our society and fears that they would be exacerbated by the introduction of assisted dying. What was the experience in Australia?

Alex Greenwich: If I think of our health system and how we adopted voluntary assisted dying, like all health systems we were under pressure following the covid pandemic. By legislating in this space you give your health system the priority of dealing with this, making sure doctors are trained to be able to address it and that there is a good implementation period. I believe the Bill has two years, and I think that is completely appropriate to make sure your health system gets up to speed. When it comes to end-of-life choices and healthcare, voluntary assisted dying provides a great deal of honesty and safeguards.

[The Chair]

I think this will probably be the last question.

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

Jake Richards Excerpts

Committee stage
Wednesday 29th January 2025 Public Bill Committees

[Kim Leadbeater]

That is really helpful. Dr Mullock, do you want to add anything?

Dr Mullock: I agree with most of the things that I am aware of that Professor Esmail just talked about. I would add that at the moment, people go sooner than they would wish to die because they have to go to Switzerland while they are still well enough to travel. They also have this terrible fear that their loved ones will be prosecuted by the police, which creates huge amounts of stress and is really unpleasant. I agree that having a system of prospective assessment of the person, rather than retrospective—when it is too late after they have died—will absolutely be a better and more compassionate approach, and provide better safeguards than we have at the moment.

[Jake Richards (Rother Valley) (Lab)]

Q If I may, I will push Professor House on the evidence he was giving to Mr Atkinson’s questions, so that I understand the necessity for psychiatric assessment under the current legal framework. Clearly there are degrees here. If a patient who has diabetes refuses to take insulin but would otherwise be able to manage their disease, then they would be referred to you, but is it your experience that if a patient rejected a round of chemotherapy, they would usually be subject to a psychiatric assessment?

Professor House: No, these things depend on the circumstances. If somebody says, “I’ve had enough of this. I’ve had chemotherapy and I don’t want any more,” they would not be subject to that, unless it was such a sudden change in the context of other changes in the person that the oncologist treating them thought something needed further explanation; it would not be terribly common, no.

[Jake Richards]

Q Would the decision about the need for a psychiatric assessment be undertaken by a medical clinician?

Professor House: In the circumstances you are talking about—generally, yes.

[Sean Woodcock (Banbury) (Lab)]

Q Dr Mullock, during your oral evidence to the Health and Social Care Committee you recommended focusing on Oregon’s approach in particular. Do you have any concerns about the number of people in Oregon who cite being a burden as their reason for choosing assisted dying?

Dr Mullock: I think this is incredibly complicated, because people will have multiple reasons for choosing to seek an assisted death, and that might be one of them. For some people, there is an argument that their experience of feeling like a burden is really overwhelming. If you have been a very independent and active person, the impact of being and feeling like a burden will be so devastating, so in addition to having a terminal condition that is going to end your life soon anyway—and all the pain and fear that that might bring—there is that additional reason.

I do not think we should necessarily say, “Oh, well, that is really problematic there—we can’t engage with the reasons people feel like a burden.” Obviously, feeling like a burden does not mean that people are finding you to be a burden. The questions about whether those caring for you are caring for you well, or whether you are a victim of abuse, are all tangled into the very difficult experiences that terminally ill people have.

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[Kim Leadbeater]

Thank you.

[Jake Richards]

Q Dr Graham, in paragraph 21 of your very helpful written evidence, you say that the judicial involvement in the process strengthens the Bill, in terms of convention compatibility. Do you agree with Lord Sumption about the effect on convention compatibility if that stage were not present, and do you have any comments on the suitability of a judicial function, and whether there is any alternative?

Dr Graham: I am afraid my answer will be quite short.

[Jake Richards]

That is welcome.

Dr Graham: I think the judicial safeguard strengthens the convention compatibility because of the argument relating to Mortier that was set out earlier, but I do not think it is essential for convention combability because of the case law I mentioned earlier.

[Sean Woodcock]

Q Ms Hadi, at the start you said, “Nothing about us without us.” With regard to your previous testimony, I am interested to know how you feel that disabled voices have been heard, if they have been heard, in this process. What gaps have there been, if any? What can the Committee and the Bill do to fill those gaps?

Fazilet Hadi: To build on what Baroness Falkner said earlier, if this had been a Government Bill, we would obviously have had some pre consultation: we would have had a Green Paper and a 12-week consultation period, and we might have had engagement sessions with disabled people. The responses would then have been fed back, and we would then have heard about what the Government were going to do next. Obviously, because it is a private Member’s Bill, none of that has happened. I think there was a call for evidence at the beginning of January, but there was no time period, no framework and no accessible information.

Given that this Bill affects disabled people really, really profoundly—as I said earlier, disabled people often live with conditions that will become terminal illnesses—I feel that it has not been sufficient, and I would like to see much more discussion with disabled people and disabled people’s organisations. Ideally, I want to see the process that Baroness Falkner talked about happen, ideally with a commission and a Government Bill. If the Government are committed to this private Member’s Bill and want it to happen, they should take over and make it a proper part of their legislative agenda.

No, I do not think there has been sufficient dialogue and input from disabled people to this day. Having said that, the first we knew of this Bill was in October, it had its Second Reading on 29 November, and now we are here, so it has been so quick. A lot of disabled people—because we have sensory disabilities, learning disabilities and so on—need a bit more time to input. Thank you for the question.

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

Jake Richards Excerpts

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Sojan Joseph]

Q My next question is for Duncan. Nurses who work in stressful environments, such as people working in mental health wards, are expected to get clinical supervision. Do you think that the nurses who are going to work in these areas—if this Bill passes—would require that specialist clinical supervision? And do you think the NHS will have the capacity to provide clinical supervision for the nurses working in those areas?

Duncan Burton: I think you are absolutely right—anybody working in stressful environments. If the Bill is passed, we will need to make sure that we have sufficient psychological support for nurses and doctors working in these services, as we do now for many of our nurses and other professionals working in these kinds of situations. People working in end of life, or cancer nurses, for example, often have psychological support to help them deal with some very difficult conversations with patients.

We would need to look at that and make sure that sufficient support was in place for anybody working in these situations. We would also need to be mindful about the wider workforce, given the issues from such a debate as this and how the decisions to signpost people on to services might create—for some people—moral injury. We do need to think about the support in place for those people.

[Jake Richards (Rother Valley) (Lab)]

Q You have touched on this, but perhaps we could have some further clarity. Certain amendments have been suggested that are essentially more prescriptive about what factors need to be taken into account and what steps clinicians would have to take when considering capacity in this context, as well as to inform consent and inform about the options available. Of course this is a matter for Parliament, but would you err on the side of trusting clinicians’ professional judgment within the legal framework, as it is—in terms of the Mental Capacity Act and the guidance on informed consent—or would you deem it suitable for further prescriptive steps to be put into primary legislation in this context?

Professor Whitty: It is entirely a matter for Parliament, at one level, but I can give a view. It goes back to the point that Naz Shah and others made earlier: the situations that people find themselves in are extraordinarily different—culturally, where they are in their lives, where their families are and a whole variety of other issues. Only the clinicians dealing with that person will really know all the different factors at play. If there is a good therapeutic relationship, and you would certainly hope there was, they should understand a whole variety of things that are very difficult for people sitting around this table to predict, however wise you are—although I am sure you are extraordinarily wise, to be clear. That was not my point. My point is that this is very difficult and I could not, at this point, write down a law that would be helpful to someone dealing with a whole range of different scenarios in which they are going to have to have an end-of-life discussion.

My own view, for what it is worth, is that I would do fewer things rather than more. That is partly because simplicity is the key to really good safeguards, in my experience. If the safeguards are really clear and simple, everybody understands them—if you ask six people, “What does this mean?”, those six will give you the same answer. The more complicated you make things, the more room there is for ambiguity and uncertainty—because different things are playing in—and the more difficult it is for the patient, their family and the medical and nursing professionals assisting them, to navigate the system.

Without in any sense wishing to curtail what Parliament might wish to do, I would make a plea for simplicity wherever possible and for accepting the extraordinary variety of people’s lives, which may have unpredictable consequences in terms of the way the end of their lives plays out.

[Jake Richards]

Q In terms of setting standards and ensuring universality of understanding those safeguards, is that better done, in your view, by training and guidance rather than primary legislation setting up factors?

Professor Whitty: I would certainly recommend that this is done by guidance or in secondary legislation, which can be adjusted if it turns out that it is not having the desired effect. Two things can change: first, we can spot things we had not thought of in the first place, however far-sighted each of us is. The second is that medicine itself changes, the diseases people suffer from change and so on.

An Act has to be durable and that is why I have my view about secondary legislation and guidance, which have the ability to adapt in a way that primary legislation cannot. The fundamentals obviously need to be in primary legislation, but these kinds of issues are often done better in secondary legislation.

[The Chair]

I am very mindful of the time, as it is now three minutes past 10. This will be the last question of the session.

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[Kim Leadbeater]

Q On the point about reporting, where patients take that right to refuse treatment, capacity must be assessed at that point if a patient has said, “Look, I don’t want any more treatment.” That is quite an important point to assess capacity. Are those cases logged and recorded?

Mark Swindells: Yes. It would be important for the patient’s records to cover the points of consent and that the doctor has recorded that they have interacted with the patient that way. I do not believe it is centrally held or collated in any sense like that, but I may be wrong.

[Jake Richards]

Q Dr Green, on subsections (4) and (5) of clause 4 and the information services, as opposed to the referral to a practitioner, I think your point has some weight. In terms of the rest of clause 4 as drafted, it has an opt-in, it gives wide discretion to practitioners and there is no obligation to raise it, so from my understanding of your written evidence, it ticks all the boxes. Is that fair?

Dr Green: Yes, with the exception of the referral.

[Jake Richards]

Thank you. I just wanted to clarify that.

Dr Green: Of course, we would regard much of clause 4(4) as normal care in any case.

[Jake Richards]

Q There are some amendments being tabled that would offer further clarification and include more things that have to be considered. I have a similar question to the one I asked the previous panel, when I think you were here in the Public Gallery. Would offering further guidance to your members be welcome, or would you again err on the side of trusting their professional discretion?

Dr Green: As Dr Whitty said, I think simplicity is the key here.

[Liz Saville Roberts]

Q Dr Green, you mentioned the different jurisdictions within the United Kingdom and the Crown dependencies. What issues have your members raised in relation to this legislation?

Dr Green: In terms of the cross-border issues?

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

Jake Richards Excerpts

Tuesday 28th January 2025 Public Bill Committees

[Dr Tidball]

Q You have helpfully acknowledged the link that we need to make on coercion to strengthen this, but on the other two elements—dishonesty and pressure—is there anything else that we need to look to in order to make this more robust?

Sir Max Hill: “Dishonesty” is a term of art in common use, but it is also a term of statute. Anyone investigating or, still more, prosecuting would understand what dishonesty means. I accept that there is a wider point—not so much for interpretation but for understanding—that this Committee may want to consider, of how much of that existing definition needs to be imported into the Bill. As with mental capacity, I would suggest that, beyond perhaps the odd footnote, it is not necessary for you as a Committee to define again what dishonesty means, because we have it elsewhere.

Alex Ruck Keene: On pressure, I think the Committee would be really assisted by having a look at the learning of the High Court judges exercising their jurisdiction under the inherent jurisdiction in relation to people who are said to be vulnerable. They have developed an awful lot of tools, where they are trying to look at people in complicated situations—potentially, but not necessarily, with impairments—who are caught up in what one person brilliantly described as being caught in a spider’s web. Those are the sorts of sets of tools used when judges are trying to work out what is going on, and whether it is the side of the line we consider to be acceptable or the side of the line we consider unacceptable—because “pressure” is doing a lot of work there.

[Jake Richards (Rother Valley) (Lab)]

Q Thank you all for your written evidence. Sir Nicholas, in your helpful written evidence, you adopt Sir James Munby’s criticism of the current proposal for judicial oversight, and you instead recommend what you call a “Spanish-style specialist panel”. Could you set out for the Committee what you see as the benefit of that approach compared to what might be described as the stark judicial oversight of the High Court judge?

Sir Nicholas Mostyn: One per cent would be 6,000 deaths a year. If each took two hours to process in the High Court—you have to read it and hear the evidence; one of them has to be oral and you have to write a judgment—that is 12,000 hours. Each High Court judge does 1,000 hours in court—outside court, they do lots—so you are talking about nearly three quarters of the entire family division doing nothing but this. It is impossible, in my opinion, for this to be done by the High Court. It should be done in the Spanish way by a panel that is set up. In Spain, the chairperson of the regulator sets up a panel for each case—a doctor and a lawyer. They have to agree and they check that everything has been done lawfully. They do not make any value judgment about whether it is in the person’s best interest. They check that it has all been lawfully.

Interestingly, in 2023, 10% extra denials were done by the panel. I do not know whether that was because they were concerned about voluntariness or whether they were concerned about suffering—because the criterion is suffering there—but an extra 10% was done by the panel, so the panel was not just rubber-stamping. They denied an extra 10%. I believe that an ad hoc system like that, with a doctor and a lawyer doing a check, would be the best way of doing it. The High Court—trust me, I’ve just come from there—has not got the capacity to deal with 6,000 cases of this nature.

[Jake Richards]

Q Apart from capacity, which I appreciate, are there any other problems that you see with clause 12 on judicial oversight? Apart from capacity, is there any benefit that you see from the Spanish model? Alex, you similarly criticised the current judicial provision. You say in your very helpful written evidence at paragraph 10 that perhaps we need to consider a multidisciplinary approach.

Sir Nicholas Mostyn: Can I just answer before he does?

[Jake Richards]

Yes—it’s just that otherwise I will be cut off. I was trying to get two questions in.

[The Chair]

Order. I said earlier that this is not a dialogue. Address your comments to the Chair, and I will decide who speaks and when. I do not wish to be rude, but everybody’s got to have their fair share.

Sir Nicholas Mostyn: I do not know if you have seen Sir Stephen Sedley’s memo, which came today. He has suggested that the Official Solicitor should be the checker of these facts, which seems a sensible idea. The Official Solicitor would be able to recruit more staff to do this. It would not be nearly as expensive as High Court judges, and it would be an efficient way of dealing with the problem. The advantage of the Spanish system is that you have a qualified doctor as well as a lawyer doing the checking. Remember—a High Court judge is not going to be a qualified doctor. That is a significant advantage in my opinion.

--- Later in debate ---

[The Chair]

We have some Members who want to ask more questions; we have about six minutes or so. Jake Richards, you did have a possible question earlier on.

[Jake Richards]

Q Some of it has been answered, but on that point, I just wanted to explore the appeals point. If either side could appeal, as Alex suggested, who would be appealing against the decision to allow assisted dying?

Sir Nicholas Mostyn: Relations who say, for example, “My father has been pressured by his new wife to do this”. If a father has given permission and the child has asked to intervene, there would be some process where the child would be allowed to become a party to the proceedings, because that will have to be specified in rules, and that person would then be the appellant.

[Jake Richards]

Q The Bill at the moment—and for good reason, potentially—potentially does not provide for family members receiving notice of this.

Sir Nicholas Mostyn: Well, it does.

[Jake Richards]

It is an autonomous decision, so—

Sir Nicholas Mostyn: No, but it says, procedurally, they can determine their own procedure.

[Jake Richards]

Yes, sorry, I meant that, in terms of—

[The Chair]

Order. I am giving you an opportunity to ask a question, so ask the question, we will get the answer back and then we can move on. I do not want this dialogue, I am afraid.

[Jake Richards]

Forgive me, Mr Dowd. I meant that, in terms of the assisted dying process in the Bill, there is no automated mechanism for family members, or indeed any third parties, apart from the doctors, to have notice of this intention. Is there a concern, regarding this appeal point, that perhaps interested parties would not know?

Sir Max Hill: I would suggest that the key to this is in clause 12(5), and that is why I have recommended just striking out the words “High Court” and putting in the word “panel”, and then reading the whole of clause 12 as amended, with those situations in which there are steps that “must” be taken—and there are many—and those in which there are steps that “may” be taken.

In clause 12(5), following that logic, we would imagine that a panel, just as the High Court,

“may hear from and question, in person, the person who made the application”

but

“must hear from…the coordinating doctor”.

The appellate mechanism, which I agree there needs to be, will be looking sharply at the operation of that subsection. In other words, when the panel made its decision to refuse, on what basis did it make that decision and from whom had it heard? We can well imagine situations in which a co-ordinating doctor, having taken his or her own steps to ascertain the views of the nearest and dearest, would satisfy the panel as to what the views of the family are. The reverse of that is that there is no indication here that, having gone all the way through the panel, the family would have been made aware or considered at all. I think that that will be a rare scenario, but I am not a medical professional. I think you can cover that, perhaps with some changes here or there on what you impose on the panel as a mandatory duty and what you leave by way of discretion, subject to the rules of procedure that the panel would then adopt.

[Dr Tidball]

Q I have a question for Sir Max Hill and Alex Ruck Keene. Your insight on clause 12 has been helpful. What procedures would you recommend be adopted for testing and, if need be, challenging the evidence as part of an evidentiary process linked to the panel that you set out?

Alex Ruck Keene: This is, for the moment, predicated on the fact that we are still in the High Court, as opposed to slightly making up policy on the fly about a panel. Assuming it is the High Court, it seems to me the Court has to be discharging a properly inquisitorial jurisdiction, which means it has to be armed with the tools to do that, which includes arming it with the tools to call for its own evidence. It also seems to me that the High Court would have to be armed with its own ability to not just receive evidence from one side and have someone testing it. That then brings you to the only player in town who could possibly do that, which would be the Official Solicitor as advocate to the Court.

I do not want to emphasise too much the question of resources, because if Parliament thinks this is sufficiently important, the resources will be voted through. But it is vitally important to note that the Official Solicitor is completely overloaded, and we would be asking the Official Solicitor to act as advocate to the Court in every single one of these cases. You could not have it be optional; you cannot say that it is some and not others. If it is going to be inquisitorial, the High Court has to have the ability to say, “This is one-sided; someone needs to tease it out,” so the Official Solicitor would have to be funded to be advocate to the Court and, if necessary, instruct lawyers in every single case.

Sir Max Hill: The model that I was espousing would not necessarily involve the Official Solicitor at all. It would make no draw on the administration of the Court or any officer of the Court, still less full-time judges. It would allow the appointment of recently retired judges, as we have in a number of scenarios—surveillance commissioners, for example—and a fresh administration. With that, as with the High Court model at the moment, there is the primary set of provisions, which Parliament must impose, and it is important that that is sufficient for what Alex called an inquisitorial function. Those are in part mandatory—those things that the panel must be satisfied about, which are set out in clause 12(3). Then there are those that are discretionary, which are set out in clause 12(5).

What sits between the two is very important. That is currently expressed as “Rules of Court”, but it would be the rules of the panel, or the commission that appoints the panels. In a court scenario, we are all familiar with criminal procedure rules and civil procedure rules; that is the secondary stage that is reached once the primary legislation has been fixed. That, too, would apply to the commission or panel process, but I do not necessarily think that it would involve using existing, paid judicial resources at all.

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

Jake Richards Excerpts

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Dr Tidball]

Q You have helpfully acknowledged the link that we need to make on coercion to strengthen this, but on the other two elements—dishonesty and pressure—is there anything else that we need to look to in order to make this more robust?

Sir Max Hill: “Dishonesty” is a term of art in common use, but it is also a term of statute. Anyone investigating or, still more, prosecuting would understand what dishonesty means. I accept that there is a wider point—not so much for interpretation but for understanding—that this Committee may want to consider, of how much of that existing definition needs to be imported into the Bill. As with mental capacity, I would suggest that, beyond perhaps the odd footnote, it is not necessary for you as a Committee to define again what dishonesty means, because we have it elsewhere.

Alex Ruck Keene: On pressure, I think the Committee would be really assisted by having a look at the learning of the High Court judges exercising their jurisdiction under the inherent jurisdiction in relation to people who are said to be vulnerable. They have developed an awful lot of tools, where they are trying to look at people in complicated situations—potentially, but not necessarily, with impairments—who are caught up in what one person brilliantly described as being caught in a spider’s web. Those are the sorts of sets of tools used when judges are trying to work out what is going on, and whether it is the side of the line we consider to be acceptable or the side of the line we consider unacceptable—because “pressure” is doing a lot of work there.

[Jake Richards (Rother Valley) (Lab)]

Q Thank you all for your written evidence. Sir Nicholas, in your helpful written evidence, you adopt Sir James Munby’s criticism of the current proposal for judicial oversight, and you instead recommend what you call a “Spanish-style specialist panel”. Could you set out for the Committee what you see as the benefit of that approach compared to what might be described as the stark judicial oversight of the High Court judge?

Sir Nicholas Mostyn: One per cent would be 6,000 deaths a year. If each took two hours to process in the High Court—you have to read it and hear the evidence; one of them has to be oral and you have to write a judgment—that is 12,000 hours. Each High Court judge does 1,000 hours in court—outside court, they do lots—so you are talking about nearly three quarters of the entire family division doing nothing but this. It is impossible, in my opinion, for this to be done by the High Court. It should be done in the Spanish way by a panel that is set up. In Spain, the chairperson of the regulator sets up a panel for each case—a doctor and a lawyer. They have to agree and they check that everything has been done lawfully. They do not make any value judgment about whether it is in the person’s best interest. They check that it has all been lawfully.

Interestingly, in 2023, 10% extra denials were done by the panel. I do not know whether that was because they were concerned about voluntariness or whether they were concerned about suffering—because the criterion is suffering there—but an extra 10% was done by the panel, so the panel was not just rubber-stamping. They denied an extra 10%. I believe that an ad hoc system like that, with a doctor and a lawyer doing a check, would be the best way of doing it. The High Court—trust me, I’ve just come from there—has not got the capacity to deal with 6,000 cases of this nature.

[Jake Richards]

Q Apart from capacity, which I appreciate, are there any other problems that you see with clause 12 on judicial oversight? Apart from capacity, is there any benefit that you see from the Spanish model? Alex, you similarly criticised the current judicial provision. You say in your very helpful written evidence at paragraph 10 that perhaps we need to consider a multidisciplinary approach.

Sir Nicholas Mostyn: Can I just answer before he does?

[Jake Richards]

Yes—it’s just that otherwise I will be cut off. I was trying to get two questions in.

[The Chair]

Order. I said earlier that this is not a dialogue. Address your comments to the Chair, and I will decide who speaks and when. I do not wish to be rude, but everybody’s got to have their fair share.

Sir Nicholas Mostyn: I do not know if you have seen Sir Stephen Sedley’s memo, which came today. He has suggested that the Official Solicitor should be the checker of these facts, which seems a sensible idea. The Official Solicitor would be able to recruit more staff to do this. It would not be nearly as expensive as High Court judges, and it would be an efficient way of dealing with the problem. The advantage of the Spanish system is that you have a qualified doctor as well as a lawyer doing the checking. Remember—a High Court judge is not going to be a qualified doctor. That is a significant advantage in my opinion.

--- Later in debate ---

[The Chair]

We have some Members who want to ask more questions; we have about six minutes or so. Jake Richards, you did have a possible question earlier on.

[Jake Richards]

Q Some of it has been answered, but on that point, I just wanted to explore the appeals point. If either side could appeal, as Alex suggested, who would be appealing against the decision to allow assisted dying?

Sir Nicholas Mostyn: Relations who say, for example, “My father has been pressured by his new wife to do this”. If a father has given permission and the child has asked to intervene, there would be some process where the child would be allowed to become a party to the proceedings, because that will have to be specified in rules, and that person would then be the appellant.

[Jake Richards]

Q The Bill at the moment—and for good reason, potentially—potentially does not provide for family members receiving notice of this.

Sir Nicholas Mostyn: Well, it does.

[Jake Richards]

It is an autonomous decision, so—

Sir Nicholas Mostyn: No, but it says, procedurally, they can determine their own procedure.

[Jake Richards]

Yes, sorry, I meant that, in terms of—

[The Chair]

Order. I am giving you an opportunity to ask a question, so ask the question, we will get the answer back and then we can move on. I do not want this dialogue, I am afraid.

[Jake Richards]

Forgive me, Mr Dowd. I meant that, in terms of the assisted dying process in the Bill, there is no automated mechanism for family members, or indeed any third parties, apart from the doctors, to have notice of this intention. Is there a concern, regarding this appeal point, that perhaps interested parties would not know?

Sir Max Hill: I would suggest that the key to this is in clause 12(5), and that is why I have recommended just striking out the words “High Court” and putting in the word “panel”, and then reading the whole of clause 12 as amended, with those situations in which there are steps that “must” be taken—and there are many—and those in which there are steps that “may” be taken.

In clause 12(5), following that logic, we would imagine that a panel, just as the High Court,

“may hear from and question, in person, the person who made the application”

but

“must hear from…the coordinating doctor”.

The appellate mechanism, which I agree there needs to be, will be looking sharply at the operation of that subsection. In other words, when the panel made its decision to refuse, on what basis did it make that decision and from whom had it heard? We can well imagine situations in which a co-ordinating doctor, having taken his or her own steps to ascertain the views of the nearest and dearest, would satisfy the panel as to what the views of the family are. The reverse of that is that there is no indication here that, having gone all the way through the panel, the family would have been made aware or considered at all. I think that that will be a rare scenario, but I am not a medical professional. I think you can cover that, perhaps with some changes here or there on what you impose on the panel as a mandatory duty and what you leave by way of discretion, subject to the rules of procedure that the panel would then adopt.

[Dr Tidball]

Q I have a question for Sir Max Hill and Alex Ruck Keene. Your insight on clause 12 has been helpful. What procedures would you recommend be adopted for testing and, if need be, challenging the evidence as part of an evidentiary process linked to the panel that you set out?

Alex Ruck Keene: This is, for the moment, predicated on the fact that we are still in the High Court, as opposed to slightly making up policy on the fly about a panel. Assuming it is the High Court, it seems to me the Court has to be discharging a properly inquisitorial jurisdiction, which means it has to be armed with the tools to do that, which includes arming it with the tools to call for its own evidence. It also seems to me that the High Court would have to be armed with its own ability to not just receive evidence from one side and have someone testing it. That then brings you to the only player in town who could possibly do that, which would be the Official Solicitor as advocate to the Court.

I do not want to emphasise too much the question of resources, because if Parliament thinks this is sufficiently important, the resources will be voted through. But it is vitally important to note that the Official Solicitor is completely overloaded, and we would be asking the Official Solicitor to act as advocate to the Court in every single one of these cases. You could not have it be optional; you cannot say that it is some and not others. If it is going to be inquisitorial, the High Court has to have the ability to say, “This is one-sided; someone needs to tease it out,” so the Official Solicitor would have to be funded to be advocate to the Court and, if necessary, instruct lawyers in every single case.

Sir Max Hill: The model that I was espousing would not necessarily involve the Official Solicitor at all. It would make no draw on the administration of the Court or any officer of the Court, still less full-time judges. It would allow the appointment of recently retired judges, as we have in a number of scenarios—surveillance commissioners, for example—and a fresh administration. With that, as with the High Court model at the moment, there is the primary set of provisions, which Parliament must impose, and it is important that that is sufficient for what Alex called an inquisitorial function. Those are in part mandatory—those things that the panel must be satisfied about, which are set out in clause 12(3). Then there are those that are discretionary, which are set out in clause 12(5).

What sits between the two is very important. That is currently expressed as “Rules of Court”, but it would be the rules of the panel, or the commission that appoints the panels. In a court scenario, we are all familiar with criminal procedure rules and civil procedure rules; that is the secondary stage that is reached once the primary legislation has been fixed. That, too, would apply to the commission or panel process, but I do not necessarily think that it would involve using existing, paid judicial resources at all.

Oral Answers to Questions

Jake Richards Excerpts

Tuesday 28th January 2025 Commons Chamber

[Sarah Sackman]

May I express how sorry I am to hear of the case of the hon. Gentleman’s constituent? I am happy to write to him—he asks quite a specific question—but it is important that we provide support to all sorts of victims. That is why we have the victims code, which strengthens the power of the Victims’ Commissioner, but I will write to the hon. Gentleman on that specific matter.

[Jake Richards (Rother Valley) (Lab)]

Last week, the Court of Appeal overturned a first-instance decision regarding the anonymity of a judge who presided over the tragic Sara Sharif case in the family courts. I do not expect the Minister to comment on individual cases, and it is certainly not about that individual judge, but will the Government use this opportunity to reaffirm our commitment to open justice and press freedom?

[Sarah Sackman]

As my hon. Friend rightly says, I cannot comment on that specific case, but we adhere to the principle of open justice and transparency in our legal system. That is why we have the publication of sentencing remarks and transcripts, and the broadcasting of many of our hearings, so that the public can see exactly how justice in this country is administered.