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

Kit Malthouse Excerpts

Committee stage
Wednesday 5th March 2025 Public Bill Committees

[Stephen Kinnock]

I thank my hon. Friend for that intervention. She makes a very good point. It is definitely something that needs to be explored, to ensure that people are not being excluded for the reasons she set out. It is a different example, but when voter ID was introduced a special ID card was created by the Government to cater for exactly the situation she set out. We have to find a way of ensuring that people are not excluded because of that technicality. She makes a valid point.

[Kit Malthouse (North West Hampshire) (Con)]

Scanning back through my experience of the health service, I do not remember ever having to show my ID, whatever the procedure or medical service. I do not remember showing ID to witness the birth of my children or my wife having to show her ID. I am not sure that is common in the health service. Why would we introduce it for this? I can go in and have a heart bypass and not be asked to show my ID. My assumption is that often people will have been—

[The Chair]

Order. I have asked for interventions to be short.

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[Danny Kruger]

There is no rule that can be applied universally in the abstract. All rules take their value from how they are introduced. On the hon. Gentleman’s hypothesis, I do not in principle suggest that every new treatment and every new obligation that is created in the NHS should require laws determining how clinicians prioritise them. In the case of a new service—I am trying not to use the word “treatment”, because I do not accept it as such, but it sounds like it will be treated as an NHS treatment—that is very significant and whose resource implications are unknown, it strikes me as appropriate that, as far as possible, we should be clear that doctors should manage the resource demands placed on them by the Bill in the context of their other obligations to patients.

[Kit Malthouse]

Can my hon. Friend not see that, as the hon. Member for Rother Valley said, the amendment is based on what could be construed as an offensive assumption: that doctors otherwise might or would? Effectively, it is the legislative equivalent of the “When did you stop beating your wife?” question.

[Danny Kruger]

I am afraid to say that we do impose obligations on doctors to do the things that we expect them to do. If that is offensive to doctors, so is all the guidance from the General Medical Council. It might well be argued that the amendment is otiose, because of course we would expect doctors to manage their resource requirements appropriately and to consider other patients. Nevertheless, the point that is being made in defence of the amendment, about which I feel strongly, is that we are creating a new service with unknowable resource implications, with strong parliamentary backing behind it, and with a whole set of guidance that will be created ex nihilo by the Secretary of State and that Parliament will have little control over.

Because we have not seen the amendments on the design of the service, we do not even know what the service will involve and how much work it will take. It is therefore appropriate to specify explicitly that doctors have an obligation to consider the potential impact on other patients.

[Kit Malthouse]

I understand where my hon. Friend is coming from. To give us fair warning, if the Committee votes the amendment down, how will he portray that publicly? Will he say to the public that the Committee has voted for doctors to harm other patients?

[The Chair]

Order. That is not a relevant question, Mr Malthouse.

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[Kit Malthouse]

As I understand it, I do not think if someone is donating an organ that they do actually have to see a psychiatrist; they have to see somebody who is an appropriately trained assessor from the Human Tissue Authority. To me, that sounds equivalent to the second doctor in our process—someone who is appropriately trained to assess patients and what they need to do. This talk of it having to be a qualified registered psychiatrist, compared with an organ donation, is incorrect.

[Dr Opher]

I completely agree with the right hon. Gentleman. By amending clause 12 to include social workers, who specialise in spotting coercion, there would be a psychological component in that panel. I emphasise that the first two doctors are trained in psychological assessment—they have to be to become a doctor, and we must respect their knowledge and decision making. Psychiatrists will be incredibly useful in difficult cases of capacity, but using them in every case would not be using them in the best capacity.

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[Naz Shah]

Is the hon. Member aware that in nine of the 10 cases that went before the Court of Protection, the young ladies were deemed not to have capacity, but the judge still decided that it would not be in their best interests to feed them, and they were put on palliative care pathways?

[Kit Malthouse]

They did not have capacity.

[Sarah Olney]

I am grateful for that intervention and, dare I say it, for the one from the right hon. Gentleman. That is the whole point about eating disorders: there is a very fine line to be trod between people who have capacity, people who lack capacity and people who have capacity but who can still be allowed to make an unwise choice, which is obviously a huge risk for people with eating disorders. I find that risk very much magnified in the Bill as it is currently drafted, which is why it is of the utmost importance that it provides specifically for the possibility that somebody is suffering from any kind of mental health illness, and particularly from an eating disorder—but I do not see such a provision at the moment. I heard the arguments that were made when I raised this issue in earlier sittings, and I very much welcome amendment 6, but it deals only with capacity; it does not talk about mental illness.

To conclude, amendment 363 is a crucial safeguard that would prevent assisted dying from becoming an unintended route for people suffering from mental health conditions, such as eating disorders, to end their lives prematurely. It would ensure that requests for assisted death are based on genuine, rational decisions, rather than symptoms of a treatable disorder. By aligning with best practice from other jurisdictions and addressing a critical gap in the UK’s current approach, it would strengthen the ethical foundations of the assisted dying Bill and better protect vulnerable individuals.

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[Naz Shah]

Sorry—they did not have capacity, but the Court of Protection still ruled that they would be taken down the route of palliative care. This is not just a matter of capacity; in this instance, when we talk about mental health—before we even get to the capacity question—the issue is that anorexia is a recognised mental health condition. I beg to differ from my hon. Friend the Member for Sunderland Central on whether we have enough provision. We keep coming back to this issue time and again.

[Kit Malthouse]

I want to be clear, because the hon. Lady and I have exchanged views on this issue: my recollection from reading the briefing—I am happy to go back to it—is that, in those nine cases, the girls were found not to have capacity, but the judge then took the decision not to force-feed them because force-feeding them was likely to be threatening to their health and might precipitate their deaths. I do not think it is quite right to say that the judges put them on a palliative pathway. They declined to force-feed them on the basis that they thought it was in their best interests and that force-feeding them might actually precipitate their deaths.

[Naz Shah]

I thank the right hon. Gentleman for his intervention. When I came to this place, somebody said to me, “There’s the letter of the law and there’s the essence of the law.” As lawmakers, we make indications, and so do judges. By not opposing something, does that mean that by default we are supporting it? That is the question here for me. In those cases, those judges accepted—as he says—that those girls would inevitably die. Although the judges did not state that they put the girls on a palliative care pathway, by default, in my understanding, that was a palliative care pathway because it was accepted that those young girls were going to die by not being fed. It is just a matter of semantics for me.

I come back to the debate that we have just had. For me, the crux of the issue is that if someone has a mental health condition that then, by definition, becomes a terminal illness—regardless of the capacity conversation—this amendment surely strengthens the safeguard for them. By and large, this involves women who experience anorexia so this conversation is very gendered. I am happy to be corrected. That is all I have to say on the matter.

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[Danny Kruger]

I rise to speak to amendment 55, in clause 71, page 4, line 33, leave out paragraph (a).

The amendment would ensure that the independent doctor has qualifications and experience in psychiatry or in assessing mental capacity. We have heard a lot in the debate about the importance of a holistic, multi-disciplinary approach to patient care at the end of life. We have also discussed the need for that to happen throughout the process and, in particular, during the crucial stages of the patient’s assessment. In the oral evidence sessions, we heard from Dr Rachel Clarke about the need for teams to be involved with patients throughout the process. By requiring the input of a psychiatrically trained clinician in the assessment by the doctors, we would be making explicit the expectation that assisted dying should adhere to the best practice, which we already see in end of life care in our country. We would also be bringing our practice into line with jurisdictions such as Oregon, which require referral to a psychiatrist, as has been discussed.

[Kit Malthouse]

On a point of order, Mrs Harris. I do not think that the amendment is actually about qualifications or training. It is about the removal of certain assessments.

[Danny Kruger]

My right hon. Friend is absolutely right, I apologise. I am speaking to later amendments, so I apologise to the Chair and to the Committee.

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[Kit Malthouse]

On a point of order, Mrs Harris. I am sorry to raise this again, but I think my hon. Friend might not be on point. Amendment 56 is about detention under the Mental Health Act, not the training and standing of the doctors. He seems to be speaking to the qualification of the person, whereas the amendment is about the Mental Health Act.

[The Chair]

There are a lot of other amendments grouped with amendment 56. Does anyone want to move amendment 56 or shall we move on?

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This group of amendments would give the patient better choice.

[Kit Malthouse]

I rise briefly to oppose all four amendments, which seem to completely ignore the reality of what it is like to receive a terminal diagnosis and then die. In truth, from the moment someone is told that they have some horrible disease that is likely to kill them, their entire life becomes a contemplation or reflection on their mortality, frankly, and on the options that might be available to them. Although we have sought to strike a balance in the Bill by having periods of reflection between the various steps, we have to reflect on the fact that people will be thinking about these things all the time anyway. Although we might be going through the motions and hoping that they seek assistance and advice during that period, I guarantee that it will already be in the forefront of their minds.

These amendments—like so many from the hon. Lady from the beautiful city of York, the hon. Member for York Central—operate on the basis that people will show up at six months, enter the process at six months, do their three weeks of contemplation and then immediately take their lives, which is simply unrealistic and hardly ever going to happen. The vast majority of people will have been wrestling with their disease for months and often years before they get to the six-month period. If they are diagnosed with less than six months to go, which happens quite frequently, as we discussed in relation to pancreatic cancer yesterday, they will be immediately thinking not just about what their death will be like, but about the things they have to get done in that period—spending time with their family, the people they want to say goodbye to, the arrangements they want to make and the things they want to complete before they leave us. Imposing on people these arbitrary periods of reflection—the ones in the Bill are arbitrary, too—has to be balanced against the notion that these people have other things to do, and a hell of a lot more to think about than the bureaucracy we are trying to put in place.

The other thing to bear in mind, which the amendments do not take account of, is that disease progression is very rarely linear. I am sure the medics will tell us that there is often a period where a person thinks they are going to be okay, and then suddenly they fall off a cliff towards the end. Anybody who has been close to somebody with advanced cancer will know that they can be perfectly well and functioning until the last couple of weeks, or even days, before they suddenly decline and die. We need to design a system that satisfies the requirement for reflection, but also lets these people do what they need to do.

Although the hon. Member for Bradford West says that the amendments do not extend the amount of reflection time by that much, what in total they double it. It goes from 21 days to 42 days, which is a very significant proportion of the time that those people will have left to themselves—to sit, think, wait and go through the bureaucratic process. What most people will want to do is go through the process and secure permission, then take their time and think about what they want to do. They want to get on with their lives and to enjoy what is left because they lose the fear of what their ultimate end is going to be. Then, some weeks or months later, they can make the decision, if they wish to, to take their own lives, and we know that about a third do not because they are in palliative care.

[Jack Abbott]

On the point about almost doubling the time of the so-called reflection period, I think we have been very fixated on the Committee, and rightly so, on the six-month limit for the terminal diagnosis, but we recognise that for many people it will be much less than that. A reflection period of two months for someone with a terminal diagnosis of three months is a critical problem.

[Kit Malthouse]

I completely agree. We have to strike a balance here. The point I am making is that, within an envelope of six months, 42 days is far too long, so I am afraid that I flatly oppose the amendments. They are based on a fundamental misunderstanding: the idea that people will just show up at six months, that their disease progression will be linear, and that they will then take the decision immediately, the moment they finish the reflection period. I can tell hon. Members that the entire six months, from the moment someone gets a six-month diagnosis, will be a reflection period.

[Naz Shah]

I appreciate the right hon. Gentleman’s comments. He referred to the same thing twice, yesterday and today, and I just want to clarify it. He said that most people are ill for a while. I have a genuine question. I do not have the research, but my understanding, as a member of the public and a Member of Parliament, is that for many people who get a terminal diagnosis of six months, it will have been very sudden. Does he have any research to suggest that most of these patients will have been on the kind of trajectory he describes?

[Kit Malthouse]

I depends on the disease, but many people will struggle with, for example, breast cancer for five years, go through repeated rounds of chemotherapy and undergo terrible operations to try to survive; then, there will come a point when the clinicians and oncologists say, “There isn’t much more we can do for you; we think you have a few months left to live, because there is no further treatment we can offer, so aggressive is your cancer.” Other people have cancer and are free of it within two or three months, because of the nature of the cancer. Some people will reach a six-month point suddenly—it will not be dead-on six months; it might be either side—and some people will be diagnosed with pancreatic cancer with two weeks to go. We have to strike a balance and be humane in what we impose on these people, who will have a lot more to think about than the regulations.

[Naz Shah]

I want to explore that point a bit further. When I talk about a period of reflection, I am referring to the evidence that we have had from psychiatrists, who said that people’s abilities would be impacted in this situation. That is where the amendments are coming from. To come back to the previous point, is there any research or evidence that would back up the claim that many cases are longer-term illnesses, rather than people who have just got the diagnosis?

[Kit Malthouse]

Maybe I was not clear: it depends on the disease. For example, the median survival range for pancreatic cancer is six to 12 months, because it does not exhibit symptoms; people only learn very late that they have it, and that is why the normal survival curve is quite a short one. We need to bear that in mind.

We also need to remember that the more we extend the periods of reflection, the longer people will have to live with the fear of what their death will be like, and with the nervousness about whether they will be allowed to control their own death—we are granting permission here. If I have to wait 42 days, that is 42 days out of whatever I might have left—perhaps 120 days, if I am lucky—that I am spending concerned about whether I am going to die in a particular way. To me, that seems crazy.

Two of the amendments propose extending the 48-hour period to seven days. These are people who have been told they are going to die within a month. They have less than 30 days to deal with their affairs, deal with their children, talk to their family and decide what they are going to do, and the amendments propose that for seven days of that, they will have to contemplate their fear of death, rather than rush it through. It is rushing it through in 48 hours—reflecting the fact that they are going to die.

The misunderstanding is most illustrated by the fact that amendment 314 proposes that, with the extension to seven days, there should be a mandatory referral to palliative care. With a month to go, these people are by definition already being palliated. The idea that somehow they are just waltzing up, unattended to, with a month to go, and that the NHS is going to say, “Actually, we’re not going to do anything to help you” fundamentally misunderstands what disease is like at the end of life. I am afraid that I vehemently oppose these amendments. The balance in the Bill is exactly right, and I hope that the Committee will agree.

Ordered, That the debate be now adjourned.—(Bambos Charalambous.)