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

Debate between Jake Richards and Kim Leadbeater

Committee stage
Wednesday 19th March 2025 Public Bill Committees

[Kim Leadbeater]

That would be my understanding as well, but I am not a lawyer. Fortunately, a lawyer just tried to intervene on me, so he might want to step in.

[Jake Richards]

My intervention is on something completely different. I have been reminded that in Australia, there is a specific clause that relates to the provision in this amendment almost word for word, so I think the hon. Member for East Wiltshire may have been incorrect in his comments.

[Kim Leadbeater]

I thank my hon. Friend for that. Unless the Minister has anything to add on injunctions—

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

Debate between Jake Richards and Kim Leadbeater

Wednesday 19th March 2025 Public Bill Committees

[Kim Leadbeater]

That would be my understanding as well, but I am not a lawyer. Fortunately, a lawyer just tried to intervene on me, so he might want to step in.

[Jake Richards]

My intervention is on something completely different. I have been reminded that in Australia, there is a specific clause that relates to the provision in this amendment almost word for word, so I think the hon. Member for East Wiltshire may have been incorrect in his comments.

[Kim Leadbeater]

I thank my hon. Friend for that. Unless the Minister has anything to add on injunctions—

Terminally Ill Adults (End of Life) Bill (Twenty First sitting)

Debate between Jake Richards and Kim Leadbeater

Committee stage
Tuesday 11th March 2025 Public Bill Committees

[Kim Leadbeater]

My hon. Friend is making an excellent and powerful speech. I thank him for putting the human being back at the centre of the process; sadly, in this Committee we can forget to do that. Early on, we had Nathaniel Dye here, who is a terminal cancer patient. He has just had a 12-month prognosis. The thought of making that man jump through hoops and over hurdles breaks my heart. I understand that we have to do it, but these are the people that we are actually talking about when we discuss the Bill.

[Jake Richards]

I agree, and I hope to deal with some of the points that my hon. Friend made in her important speech. To mandate that a barrister instructed by the Official Solicitor, or indeed the panel, has to put questions to a person who may have only a few weeks left to live is not only highly inappropriate, but unworkable. What instructions is this barrister working from? Do they have to suppose that somebody who clearly has capacity does not? If not, do they ask questions about the circumstances of the person that would be asked by the panel in any event?

My hon. Friend the Member for Bradford West suggested that the Official Solicitor would be working for the person. Well, the person is coming to this panel seeking assistance, so what on earth is the Official Solicitor or their legal representative going to ask of the person they are taking instructions from? To what extent would they be allowed to go on a fishing expedition, delving deep into a person’s relationships to assess any evidence of coercion? That goes back to my original point: what are their instructions? Who is asking them to do what?

I see the force in the amendments from my hon. Friend as to burden of proof, but I deem them inappropriate. The criminal standard does not fit neatly with the more complex issues at play, such as capacity. The Mental Capacity Act states that where there is a doubt about a person’s capacity, the burden of proof is on the person seeking to establish a lack of capacity, on the balance of probabilities. That is the correct approach. In any event, if the panel has any doubts as to capacity, surely it will be obliged—as is set out in amendment 6 to clause 9, which the Committee has just accepted—to seek further psychiatric assessment. It is important to note that the panel will have powers to instruct further expert assessment and reports.

If we implement the criminal standard, the doctors who are part of the process— not only the co-ordinating doctor and the individual doctor, but treating doctors, because we should always remember that someone who is terminally ill will almost certainly be receiving treatment in the NHS—will be working to a completely different burden of proof from the panel’s. The criminal standard does not fit neatly with the innately inquisitorial nature of the panel’s role. That is important. It is very easy to look at the definition of the balance of probabilities and find weaknesses in it, but when we consider what actually happens in practice, I submit that those weaknesses are not often there.

The panel will have a conversation with the professionals and with the person and will consider the response. If doubts creep in, it will not just stop and make a decision on the balance of probabilities; it will continue to search. The more serious the doubts it encounters, the more evidence it will need for those doubts to be overcome. That is how the law has developed on the balance of probabilities in all other areas, and no doubt it will be the same in this area. Importantly, unlike with many other tribunals or courts, the decision must be unanimous, so if the social worker spots something that the psychiatrist or lawyer does not, the case will go no further.

What about the role of third parties? As I have set out before, this is a personal decision, but I also accept that no man is an island—a phrase often used by the hon. Member for East Wiltshire. The process has to strike a real balancing act: allowing third-party information to be considered, but in a proportionate manner that respects individual autonomy. To my mind, the views of third parties are not relevant. Their views on whether the person is making the best decision for themselves are not relevant. This is not a welfare decision. Equally, it must be right that third parties—family members and others—can ensure that the panel has sight of the relevant information. Even after a certificate of eligibility has been given, the co-ordinating doctor will continue to be responsible for assessing new information, and their duties will continue until the final moments, as the Bill sets out.

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

Debate between Jake Richards and Kim Leadbeater

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.

--- Later in debate ---

[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.

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

Debate between Jake Richards and Kim Leadbeater

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[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.