Terminally Ill Adults (End of Life) Bill (Eleventh sitting) Debate
Full Debate: Read Full DebateKim Leadbeater
Main Page: Kim Leadbeater (Labour - Spen Valley)Department Debates - View all Kim Leadbeater's debates with the Ministry of Justice
(1 year, 6 months ago)
Public Bill CommitteesThere is a certain confusion about the extent to which encouragement of assisted suicide—assisted dying, under the terms of the Bill—would be legal or not. The Bill does not decriminalise encouragement either to an assisted suicide, which is an assisted death within the scope of the Bill, or to an unassisted suicide—suicide outside the scope of the Bill, as it were. What we have heard, and certainly the implication of the Bill, is that encouraging either would be illegal in principle. The purpose behind the amendments would be to ensure that the doctors doing the initial assessment are obliged to check and satisfy themselves that there has not been encouragement.
I might have missed it this morning, but what definition of “encouragement” are the hon. Gentleman and the hon. Member for Reigate proposing to use? Having looked at various definitions myself, I do not think that there is a definitive legal definition, but please correct me if I am wrong. Some definitions that I have seen include: to encourage somebody, to give someone confidence or to support someone to do something. Are we saying that it would be wrong to give someone the confidence or support someone to do something? That would feel very wrong and very different from coercing someone to do something.
On the point about encouragement, I am grateful to my hon. Friend the Member for Reigate for reminding me that her new clause 5 specifies a definition of encouragement:
“an act capable of encouraging suicide which would constitute an offence under section 2”
of the Suicide Act. Encouragement is encouragement—the term exists in the Suicide Act already. It exists in case law and in statute, so the term is what it is.
I am very open minded on these issues, but are the amendments trying to stop someone giving someone else confidence or supporting them to do something? That would feel wrong.
We are suggesting that an application in which the applicant has been encouraged—or coerced, unduly influenced or manipulated—would not be acceptable. The assessing doctor must confirm that there has been no encouragement. That is the purpose of the amendment. I hope that satisfies.
I am trying to ensure that there will be a sufficiently broad scope that doctors must be obliged to check that there has been no undue influence, pressure or encouragement. An example would be an elderly person who has been actively encouraged: it has been suggested in all love, and possibly with perfectly decent motives in the mind of the person applying the encouragement, that it would be best for them, their family and society as a whole if they would expedite their death—earlier than would otherwise happen in the natural course of things. “Encouragement” is a more comprehensive term and concept than “pressure” or “coercion”.
Our concern is that a doctor applying the current test in the Bill will simply look for evidence of direct, fairly forceful pressure or coercion, as it is understood in the more heinous cases, with which we are all familiar, of partners applying coercive control or direct abuse. We obviously all want to exclude that, and it is already excluded. What we are concerned about here is the more insidious, subtle and—I am afraid to say—widespread pressure that the evidence from our witnesses told us about. We are concerned that it is not possible to ensure that people will be protected if the terms currently in the Bill stand.
I am concerned that the hon. Member did exactly what we are in danger of doing by saying, “Whether it’s under influence, whether it’s pressure, whether it’s coercion, whether it’s other things.” We are in danger of using these words interchangeably, as he just did. That is not what the law needs. The law needs certainty, with clear expressions. I think that the hon. Member also said that encouragement is a broader form of pressure, but who is saying that? Is he saying that? Is the hon. Member for Reigate saying that? Is that a legal summation? I am not entirely sure where encouragement fits in with these other points.
I am not sure that we are going to satisfy each other on this point. A lot of the evidence that we have heard conclusively asserts that there is a widespread problem of families applying—and I do use these terms fairly interchangeably—undue influence, encouragement and manipulation. Pressure and coercion form a subset of those terms. They are at the sharp end—the more obvious forms of encouragement and manipulation. Those terms exist in law, and this certainly exists in society, as we have heard from Members and witnesses. It feels to me entirely appropriate and consistent with the principles of the Bill that we are trying to ensure that the new law will only be available to people who are acting entirely autonomously, without having been in any way—however subtly—the victims of any sort of undue influence. That is the purpose of these amendments.
I emphasise that the basis of the Bill, despite what many campaigners might want, is not one of total autonomy. The Bill requires us to have some responsibility towards the applicant, and not simply to say “Do you want it? You can have it.” There are already provisions in the Bill that put an obligation on the assessing doctors and then the judge not so much to conclude that it is in the person’s best interests—I am afraid it does not have that stipulation—but it does seek to insist that they make their own decision.
As the hon. Lady said, many people make a decision and might not even be fully aware themselves that they are the subject of undue influence. They may be being deceived by their loved ones. Their loved ones might be deceiving themselves about the pressure they are putting on them, but let us just talk about a genuine intent to persuade, which does happen. In answer to the question, “Have you been coerced or pressured?”, the patient may say, “No, of course not.” But if they are asked, “Have you been encouraged?”, they might say, “Actually, yes, I have.” That should raise a very significant red flag, and it is absolutely appropriate and sufficient at that point to say, “I’m sorry, but I don’t conclude that this is an autonomous decision.”
To conclude, I refer back to the debate we have been having since the news broke two days ago that there will be an amendment to scrap the judicial stage that is currently in the Bill. If there were a High Court judge sitting at the end of this process, as we were promised and as was understood by the House when it voted on Second Reading—if there were a judge sitting over each individual case, rather than sitting at the head of a national assisted dying commission, and if there were a judge sitting in court reviewing the case properly—there might arguably be no need for the amendment on undue influence.
It is possible, as the Minister explained, that coercion would sufficiently capture the more insidious undue influence and encouragement we are concerned about. It is possible that we could strengthen the definition of coercion through guidance, or through further definition in the Bill. But if we are going to have a panel, and not a court or a judicial process at all, it is even more necessary that we insist on added protection.
Surely, as I thought I heard the hon. Gentleman say on the radio yesterday morning, it is better to have expertise of this nature involved in the process. On the issue of coercion and the evidence that we received from psychiatrists—which was more in terms of capacity, but on coercion as well—and certainly from social workers, the Association of Palliative Care Social Workers was very clear that this is what they do. Surely the hon. Gentleman has to agree that by involving those people in the process, we are strengthening the issues he is concerned about.
At the risk of debating an amendment that has not even been tabled yet and that will come later in the Bill—I wish we were able to see it—the hon. Lady is absolutely right: I do indeed believe it would be very helpful to have as many professional eyes on each case as possible, so I welcome the suggestion of more experts. I am not clear what they will be yet, and in fact I support amendments that will insist on psychiatric assessments, but those need to come earlier.
It is appropriate and absolutely right—not necessarily for this clause, but for the one we will come to shortly on assessment—that there should be as many professional eyes on the case as possible, but there does need to be a judge at the end of the process. That is certainly what the House of Commons voted for, and I think it is what the public would require. In the absence of that—if there is not going to be a judge applying this somewhat legalistic definition of coercion that apparently should include all the more insidious forms of influence that we are concerned about—in my view it is even more imperative that we specify very early that the first doctor who sees the patient must ensure that there has been no undue influence, manipulation or encouragement.
I will speak briefly because we have had a thorough discussion about these issues. I completely understand the sincere intention behind these amendments. It is clear from the fulsome discussion we have had that colleagues across the Committee agree that undue influence and manipulation should be covered by the Bill—as should all types of coercive behaviour. The question is, “How?” I feel reassured by comments from legal colleagues and the Minister that the language currently used in the Bill—“coercion” and “pressure”—covers these additional concepts, as those terms appear in existing criminal offences, and the statutory guidance from the Home Office in 2023 along with the Crown Prosecution Service legal guidance cover the broad range of coercive behaviours. It is up to hon. Members to decide whether to push these amendments to a vote. I am understanding of the intention and appreciative of the comprehensive debate that we have had.
Rebecca Paul
I thank all Members for their contributions. I echo the hon. Member for Spen Valley when I say that this is one particular case where we all agree on what should be happening functionally and practically. We have had some quite technical arguments today about the meanings and definitions of certain words and how they would apply. It has been a constructive and interesting debate. As a first-timer to a Bill Committee, it has been a great experience.
It is clear from the evidence received and the contributions from Members that subtle coercion is something we are all concerned about and recognise needs to be dealt with. We have heard powerful stories today and from witnesses in recent weeks, so it is incumbent on us to listen and take action. One of the points that resonated with me yesterday was that made by the hon. Member for Bradford West. I am now paraphrasing a little bit: essentially, she said that we are not legislating for a perfect world where everyone is treated equally; that our society is filled with inequality, and we must legislate for the reality, not for the rose-tinted version that we would all prefer. Coercion and undue influence does happen more commonly than we might think, and it is hard to detect. It is therefore vital that when we go through this Bill, we always have the most vulnerable at front of mind. It is not about when everything works perfectly, as intended, for the very small group of people who would benefit from the Bill, but what happens when it does not work, and the impact on a potentially bigger, more vulnerable group. That is the crux of our roles here today.
I thank the Minister for her very informative and helpful speech setting out the Government’s position on legalities of the various definitions. There will, however, be different legal opinions on this. I sought advice from former Attorney General Victoria Prentis KC, who takes a different view. I am very aware that when it comes to going through the courts, there will be different interpretations and views. I am not a lawyer, so I do not know which is right, but I do know that if I put this amendment on the face of the Bill, it is there and it is safer. That is where I am coming from on this. I reiterate that we do see these terms “coerced”, “pressured” and “unduly influenced” in various bits of legislation. Those words are chosen for specific reasons. It is important to note that.
On encouragement, I am going to talk again about the purpose of the amendment. Right now, under the Suicide Act, assisting someone to commit suicide is a crime, but encouraging someone to commit suicide is also a crime. Clause 24 of the Bill decriminalises the assistance piece to allow legalisation of assisted dying, but it does not decriminalise the encouragement piece. I have tabled amendment 82, because we need to address that. The clause is limited to the provision of assistance and does not include the encouragement of a person to end their own life.
I understand the concerns of my right hon. Friend the Member for North West Hampshire about how “encouragement” could be interpreted, which is a really good point. I also take the point that although it is referred to in the Suicide Act, there is no clear definition, so we are relying on case law. If we all came to this with a blank bit of paper, we might come up with different laws. However, we have laws that are already in place, and that is why I have tabled this amendment. The reality is that encouragement of suicide is a criminal activity right now, which is why we need to address it here.
On undue influence, the Minister set out that the amendment is not legally necessary. The hon. Members for Rother Valley and for Penistone and Stocksbridge gave interpretations of this point, but I gently point out that they contradicted each other, which shows how complicated the situation is. Different people will have different views. The hon. Member for Penistone and Stockbridge said that “undue influence” is a term in equity, and that it is not proper to have it as part of the criminal offence of coercion in clause 26, but the hon. Member for Rother Valley said that coercion in that provision does not include undue influence. Does that not show that the legal meaning of the Bill is unclear and would benefit from some clarification?
Amendment 23 on undue influence first appeared on the amendment paper on 21 January, almost three weeks ago. My understanding from those who were previously in government, including at the Ministry of Justice, is that when an MP tables an amendment that is legally unnecessary, the Government would seek to meet them, together with Government lawyers, to explain why the Government believe the amendment is legally unnecessary and to give them time to reflect. It is my understanding that, with respect to the amendment in the name of my hon. Friend the Member for South Northamptonshire (Sarah Bool), that was not done. She met the Bill’s promoter, the hon. Member for Spen Valley, on Monday, but they did not discuss the amendment on undue influence.
Similarly, my amendment 82 on encouragement appeared on the amendment paper on 4 February, over a week ago, and I have had no communication from either the Government or the Bill’s promoter about it. The first time I or my hon. Friend the Member for South Northamptonshire have heard that our amendments might be legally unnecessary or problematic is today. When formulating my amendment, I had the benefit of advice from former Attorney General Victoria Prentis KC, who has written a letter to The Times endorsing it; the Minister will appreciate that I would not want to withdraw my amendment without the benefit of further advice from her, so I will press it to a vote.
However, if there are any points of technical drafting relating to the amendment that the Government would like to deal with through tidying-up amendments, I would very much welcome that. What has come out of this conversation is that it is not straightforward or clear; there are some things that need to be thought through, including the interactions between clause 24 and clause 26 and the various definitions, so that we are being really clear. I am open to doing that in the most suitable and appropriate way.
I am not sure whether the hon. Member contacted me to meet—if she did, I am very sorry; I must have missed that message—but other members of the Committee and Members of the House have asked me to meet with them, and I have met with them and had discussions. If she contacted me asking to discuss her amendment, I apologise.
Rebecca Paul
I can confirm that I did not contact the promoter on this. My understanding is that if something is not legally coherent, it would normally be the Government who would contact the relevant MP to have that discussion and allow that reflection. That was the point I was trying to make; my apologies if I focused on the promoter more than I should have. I always enjoy meeting the promoter of this Bill.
I welcome the broader debate, but I am very conscious that the amendment does not actually use the word “burden”. It talks about someone
“acting for their own sake rather than for the benefit of others.”
Although the broader debate is welcome, it is important to look at the detail of the amendment.
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.
I always worry when the doctor is providing assistance. [Laughter.] No, I am grateful to the hon. Gentleman for trying to get me back on track.
We hear about morphine allergy, and I recognise that apparently it does exist, albeit very rarely. Patients with a morphine allergy can still receive opioid analgesics—there are different sorts of opioids—and there are case studies in the literature that show they can achieve good palliation.
As someone who lives with someone who has a very severe morphine allergy, I can assure the hon. Gentleman that those things do exist and are very real, and they create a huge sense of fear in people. Having met a terminally ill woman who is also allergic to opioids, I think it is really important to acknowledge that these are very real problems for people.
I totally acknowledge that. I fully recognise that, as I said, morphine allergy does indeed exist, but I am told that it is very rare. I hope that the hon. Lady’s relative will confirm that there are other things that can be done for people who suffer from pain if morphine is not appropriate.
I suppose that is the point that I want to make: no palliative care professional would ever say that they cannot help somebody in terrible pain. There is always something that they would like to do and always more that they can do to assist. The simple reality is that palliative care is improving so much that there is only an infinitesimally small number of people whom palliative care professionals would confirm they cannot help. I recognise that those people exist. I am not being naive or Panglossian and suggesting that palliative care can be perfect in all cases, but if we are serious about the purpose of the Bill, which is to help those whom palliative care cannot help, I suggest that that number will be very small.
I pay tribute to the hon. Member for York Central (Rachael Maskell) and to the noble Baroness Finlay, whom I mentioned. They are leading a commission on palliative care at the moment, which is a helpful corollary to the debate we are having here. They will make a series of recommendations, which I will not go into.
I want to conclude with this obvious point. I am repeating myself, in a sense, so I will be quick. If we are going to do this, let us be honest and straightforward about what we want to achieve. We want people who are dying in extreme agony at the very end of their life to avoid the pain of death and be able to avail themselves of this service. It is either that or we say, “No, we have no interest in people’s motivation for wanting it. We simply respect their autonomy. Unless we can detect external coercion,” which is the only thing that the Bill currently seeks to exclude, “and as long as a doctor can give confirmation that they have six months to live,” which is not difficult to get, “we don’t care why they’re doing it. We respect their wish, and whoever they are and whatever is going on behind the scenes, they can go for it.” We either have a Bill based on full autonomy—I think that is what some hon. Members genuinely believe we should do—or we try to restrict it to just those people who face an agonising death at the very end.
I cannot really comment, because I did not get the specific question that my hon. Friend asked.
Returning to the amendments before us, I will try to keep my comments brief, as we have had a thorough debate this afternoon. On amendments 95 to 104, I have spoken to the right hon. Member for Braintree and I know that these amendments seek to stimulate discussion, and I am very pleased that they have done that this afternoon. I also know that they come from a good place.
I have already discussed the additional safeguards around training that would be added to the Bill through new clause 8, which states that the Secretary of State must consult
“persons appearing to…have expertise in matters relating to whether persons have been coerced”.
That would consolidate the existing measures in the Bill and, I hope, relate to the concerns expressed in the amendment to some degree.
More broadly, the reasons that someone might choose an assisted death may well include sparing those they love the pain of seeing them suffer, as we have heard this afternoon. That is certainly something that members of my family and people I have spoken to say would matter to them. That should not prevent the provision of assistance. It is surely for that person to decide.
During oral evidence, we heard powerful testimony from Liz Reed about her brother Rob, who had an assisted death in Queensland, Australia. Rob was 39 years old and had a young family when he was diagnosed with stage 4 terminal lung cancer. He was fit, young and healthy, and did not smoke. As well as taking back control at the end of his life, one of his main reasons for choosing an assisted death was so that his young family could remember him as the man and the dad he was. He was not afraid of death, but he was afraid of dying in an undignified and painful way; he was afraid of not getting to say goodbye to his wife and children, or them having to find him after his having had a massive heart attack. Surely we should not decide that that is not acceptable and understandable. It is a perfectly understandable reason for choosing an assisted death.
Liz told us that Rob
“was able to change his mind, which he did, in terms of dates and when it would happen. His views and the views of his family were also taken into account and, through the process, he was treated like a person with autonomy whose choices were being respected.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 254, Q328.]
If relatives were implicitly or explicitly coercing or pressuring someone, that would of course be very different—and that is covered by the Bill—but to prevent someone from wanting to consider their loved ones in their final weeks and months of life does not seem at all reasonable to me.
I have talked about training, which is important and feeds into the debate about the assessment of coercion and pressure—here, I refer again to my new clause 8. As we heard during the oral evidence, who is involved in that training is important. We heard from the Association of Palliative Care Social Workers. Its position statement on assisted dying states:
“As social workers we bring a distinctive perspective and skill set. Our focus is on helping people to get practical needs met; to enable them and their families cope with the impact of serious illness and dying and to plan ahead”.
This point is about training, and so about hearing from the right people when it comes to the training of professionals. It is important that we ensure that the Secretary of State must consult such people, and I anticipate that organisations such as the Association of Palliative Care Social Workers would be consulted. The statement continues:
“as well as protecting people from abuse, neglect and coercion at a time…when they are most vulnerable…Our expertise includes building trusting relationships, comprehensive knowledge of safeguarding”.
By looking at the training process, people’s motivations for seeking an assisted death would hopefully be considered.
Would the hon. Lady be content if somebody who had capacity chose an assisted death for the purpose of saving their family money?
Very few cases are as straightforward as that, and that is where conversations with doctors and professionals are really important. I think it was the doctor from California who said that if someone said to him, “I am doing this because I am a burden,” that would be a red flag. There would have to be a much more detailed, complex conversation with patients about what their motivations were, and it is important that we acknowledge, as medical colleagues have, what those conversations might look like.
But if the doctor concluded that they were doing it because they felt they were a burden, they would still be able to get the assisted death under the hon. Lady’s Bill. The only question is whether they have capacity. If they have been judged to have capacity, choosing to have the assisted death in order to save their family money would be acceptable under her Bill, would it not?
We are oversimplifying a complex situation and a difficult conversation. We have talked about coercion and pressure a lot. If someone says, “I just want it all to be over, because I feel like a burden”, that is the sort of conversation that doctors acknowledge would be a red flag. Those are complex, difficult conversations; we need the expertise that we would get by providing serious amounts of training around this issue so that those conversations can take place in a sensitive way.
This is my last intervention, I promise. I want to hear the hon. Lady confirm that under the Bill as currently drafted, after all these conversations have taken place, as long as the doctor cannot find evidence of coercion, they would be obliged to approve the assisted death, as would the judge and the judicial panel. If that is the case, and they conclude that a person has capacity and there is no evidence of coercion, no matter what conversations go on—if the person wants to do it in order to save their family money—the doctors and the judges would have to say yes.
I, again, refer the hon. Gentleman to my previous points; we are oversimplifying a really complex conversation, which would take into account lots of different factors for each individual. That is all I will say on that point.
Rebecca Paul
It is really important that we are honest about what the Bill does. We are looking for a simple answer—yes or no. My hon. Friend the Member for East Wiltshire has very clearly set out the situation, and I know that the hon. Member for Spen Valley understands her Bill inside and out, so if she could give us a yes or no that would be really helpful.
Rebecca Paul
It is the same question asked by my hon. Friend the Member for East Wiltshire: would someone be allowed to access assisted dying if it was clear that they had capacity and their reason for it was simply not to cost their relatives financial expense or be a burden. It is important to be honest about what the Bill does. Is the answer to that yes?
I am certainly not being dishonest, which is the hon. Lady’s implication. I refer back to the complexity of those conversations, and the fact that safeguards will need to be in place to check for coercion, dishonesty and pressure. Ultimately, it comes down to a question of autonomy, dignity and choice for patients, but they are not simple conversations. I think it would be very unusual if the conversation looked how she is describing.
It is really important to remember that, at the moment, there is no legal framework that checks terminally ill people’s reasons for ending their lives or shortening their deaths. That is why having this legal framework is so important. During the oral evidence sessions, Sir Max Hill told us that in his experience of working as Director of Public Prosecutions, he oversaw a number of cases to do with people travelling to Dignitas. He said:
“In each of the 27 cases I considered, the deceased individual was already dead, and that is when the scrutiny started. The major advantage of the Bill…is that that will be reversed, and scrutiny will be before death.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 86, Q111.]
The same applies to terminally ill people who have taken their own lives in this country. The only time that anyone checks for coercion, either internal or external, is when the person is dead. The Bill provides a robust legal framework, which is a significant improvement on things as they stand.
Dr Aneez Esmail, who changed his position on assisted dying as a result of his work as a professor of general practice, said in his oral evidence,
“How is the law protecting anyone at the moment?…we don’t have a legal framework…it is actually very unsafe…a law…which produces safeguards, is a huge improvement on where we are at the moment.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 166, Q211.]
I also worry about the subjectivity of this amendment. We know that the law likes certainty, rather than abstract concepts, such as doing something for one’s “own sake”, which seems somewhat abstract.
My hon. Friend has referred a few times now to us not having this framework. We do not have this framework because we do not have this law. Maybe she can help me to understand or correct me if I am wrong, but this framework does not exist because we do not have this law. For this law to exist, we have to have the framework. I am inferring from her a suggestion that she is somehow intervening for people who might be being coerced in a hospital setting or at the end of life in any case, but that is not the case.
I am not quite sure I understand the point. My point is that there is no law that is checking people’s motivations for ending their lives when they are terminally ill, and that is what this law would do.
I will make some progress, and come to amendments 235 to 245. As we have heard from witnesses, choice at the end of life is not just about physical pain, be it current or potential. It can also be about psychological suffering and mental torment as a result of being terminally ill —and it is of course about taking back control, bodily autonomy, dignity and choice. What about patients who are in severe mental torment and fear as a result of their condition, and terminally ill people who want the autonomy and dignity of taking back control at the end of their lives? Who are we to ask them to prove their level of physical pain or desire to avoid physical pain, and to deny them the choice in their final few weeks or months?