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

Lewis Atkinson Excerpts

Committee stage
Wednesday 26th February 2025 Public Bill Committees

[Jack Abbott]

Potentially. There are certain words and clauses on which everyone will come to very different conclusions. This has been the case throughout the entire Committee process, which is approaching its 16th sitting now. It has already been said that this provision could be tightened up, and I welcome the Ministers’ input in helping us to understand their position on aspects like this.

In my view, there is nothing in amendment 50 that specifically says, “This would be an intrusive look at someone’s personal finances.” The measure—on the advice that would have to be given—is a proportionate one. Yes, it could be reasonably argued that proposed new subsection (2)(c) to clause 3, as set out in amendment 50, has already been covered under things that we have discussed extensively, such as coercive control and pressure. Equally, I do not think that any of the language in the amendment would necessarily overrule any other issues or make them more ambiguous. From that point of view, I will be supporting the amendment. I do not think there is anything in it that would override or lead to complications with any other part of the Bill, but it does put in black and white on the face of the Bill some of the very basic processes that should be happening.

I appreciate that many of the points in amendment 50 are already happening or feature directly or implicitly in the Bill. However, I do not think there is any harm in the amendment; in fact, given the nature of what we are talking about and the fact that this legislation is unprecedented in this country, we should be very clear and direct. I do not think it will lead to confusion for our medical profession. These are straightforward and common-sense asks. On that basis, I will be supporting this amendment.

[Lewis Atkinson (Sunderland Central) (Lab)]

I was not intending to, but I will speak very briefly to follow my hon. Friend the Member for Ipswich. I agree that what is set out in amendment 50 is entirely sensible and I support such provisions. However, I will not vote for it, and I want to explain why.

We will go down a very difficult route if we set out the regulation in primary legislation for every individual area of medical practice in this country. We do not have an equivalent version for how doctors should talk to their cancer patient and what information they should provide. We do not have the equivalent in various other sensitive acts, such as the Abortion Act 1967, the Human Fertilisation and Embryology Act 2008 and so on. The reason is that we rely, as set out in statute, on regulation through the General Medical Council.

I want to read into the record some of the existing General Medical Council guidance for doctors on giving information to patients. Of course, this covers any doctor-patient interaction, and it would apply in this case as well:

“The information you give patients

10. You must give patients the information they want or need to make a decision.

This will usually include:

a. diagnosis and prognosis

b. uncertainties about the diagnosis or prognosis, including options for further investigation…

c. options for treating or managing the condition, including the option to take no action

d. the nature of each option, what would be involved, and the desired outcome

e. the potential benefits, risks of harm, uncertainties about and likelihood of success for each option, including the option to take no action.”

That is already set out by the General Medical Council.

[Danny Kruger]

The hon. Gentleman is making an important point about the obligations on doctors to communicate the range of options that patients have, and we are going to discuss that more precisely when we consider the next clause, but his suggestion that this should be treated just like any other medical treatment is surely contradicted by clause 4(1), which specifically disapplies the Montgomery ruling, which I think he is relying on there. That ruling specifies that doctors must communicate all available options to patients. In clause 4(1), the doctor is not obliged to communicate this particular option. Does the hon. Gentleman accept that it is already acknowledged in the Bill that assisted dying is not the same as all other medical treatments and it does not have to be communicated in the same way?

[The Chair]

Order. Can we please keep interventions as short as possible?

[Lewis Atkinson]

I accept that clause 4(1) rightly sets out that no medical practitioner is under an obligation to raise the subject of assisted dying, but that is not what amendment 50 is about; it is about the information that someone has about the likely effects of taking this course of action, if a patient is to pursue it. In that case, it is entirely right that the GMC guidance would apply, as it would with any other procedure, including very sensitive procedures. Of course, the benefit of having, as set out on a statutory footing, proper medical regulation through the GMC is that it can be updated by the GMC. The question came up previously of why it would be more complicated or burdensome to have some of this set out in primary legislation. When doctors know that they have to refer to the GMC guidance, they are more likely to follow it. If they think, “Oh, hang on. I need to think about what the guidance is in this bit of primary legislation”, where does that stop? Do we start putting in slightly differently worded bits of guidance for information about different areas and procedures? That is a recipe for absolute confusion and less adherence.

--- Later in debate ---

[The Chair]

I do not need apologies; I need brevity. I do not want to repeat myself again.

[Lewis Atkinson]

My hon. Friend and I may need to agree to disagree on this point. Clearly, I agree that this is a significant landmark legislation, which is different from many other forms of treatment, but that is reflected in the safeguards and provisions elsewhere in the Bill. I do not believe that the Bill needs to set out the way in which information is given. The difference in its nature is set out elsewhere in the Bill with the safeguards. The drafting of amendment 50 essentially repeats what is already in place and is regulated through the GMC, entirely rightly. There is much more likelihood that that will be adhered to, as we would all wish to be the case, if amendment 50 is not accepted.

[Naz Shah (Bradford West) (Lab)]

Does my hon. Friend agree that the GMC writes this in detail for the purposes of treatment? The Bill is not about treatment, so therefore there is a difference in its very nature.

[Lewis Atkinson]

No, I do not agree. The GMC guidance in many ways talks about not accepting treatment. It is equally as useful in situations involving the withdrawal of treatments and the end of life. Fundamentally, it goes back to the point that I made in my speech yesterday on informed decision making and the autonomy of the patient. They have to be informed, whether they are seeking treatment, the withdrawal of treatment or no treatment at all.

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

I want to reiterate briefly a point that we have made previously. The more we seek to police the conversations between medics and patient, the more guarded those conversations may become. As we know from the evidence that we have received, there are those who are determined to get an assisted death. The more we lay it out in black and white, the more people may seek to manage their responses. For example—forgive me, Mrs Harris, but this point is in response to the hon. Member for Ipswich—if my doctor said to me, “Do you have life insurance, Kit? We need to understand.”, I may say, “Actually, no, I don’t.” I may be forced or feel that I have to lie to the doctor to get what I want. We want an open conversation that is not guarded in that way, and including amendment 50 may produce exactly the opposite of what we are trying to achieve.

[Lewis Atkinson]

The right hon. Gentleman makes a good point. For the reasons that I have outlined, I will not support amendment 50. However, I would hate for any of us who do so to be characterised as disagreeing with the provision of relevant and available information about care and treatment. I certainly believe, as do some colleagues, that that is best done through existing regulatory routes, and primarily through the GMC. That is why I am unable to support amendment 50.

[The Minister for Care (Stephen Kinnock)]

It is a pleasure to serve under your chairship, Mrs Harris. As usual, my remarks will focus on the legal and practical impact of amendments, to assist Members in their consideration.

This set of amendments seeks to change the way in which capacity is determined. As drafted, the Bill requires that a terminally ill person must have capacity to make a decision to end their own life before they meet the conditions for accessing assisted dying. Capacity in the Bill is determined in accordance with the Mental Capacity Act 2005, which presumes capacity unless it is established to the contrary. Amendment 322 would reverse the presumption of capacity and, in effect, establish a presumption of incapacity.

It may be helpful to the Committee if I set out the Government’s understanding of both the Mental Capacity Act and the implications for the Bill. Section 1 of the Act sets out several guiding principles, including that a person must be assumed to have capacity unless it is established that they lack capacity. Section 3 sets out a description of the factors that demonstrate that a person is unable to make a decision for themselves: that the person is unable to understand the information relevant to the decision; unable to retain that information; unable to use or weigh that information as part of the process of making the decision; or unable to communicate their decision. This inability must be because of an impairment or disturbance of the functioning of their mind or brain.

Turning to the Bill, at each stage of the process an assessment of capacity would be required. This assessment of capacity, in accordance with the Mental Capacity Act, is separate to the considerations of whether a person holds a clear, settled and informed wish to end their own life, which is also required by the Bill.

Amendment 322 would disapply section 1(3) of the Mental Capacity Act, which is the principle that a person would not be treated as lacking capacity unless all practicable steps had been taken to help them to make a decision. This could create challenges for practitioners who have experience using the Mental Capacity Act, as they would need to apply a new approach.

Amendment 49 seeks to apply a consistent approach to the burden of proof when assessing a terminally ill person’s capacity for assisted dying. The Mental Capacity Act has two evidential tests. In court proceedings to determine capacity, the balance of probabilities test applies. When care or treatment is given to someone on the basis that they lack capacity, there is protection from liability if there is a reasonable belief that the person lacks capacity and the intervention is in the person’s best interest. The amendment would diverge from this evidential approach. It would also have implications for the workforce. Requiring doctors who have experience in applying the reasonable belief test to instead apply a balance of probabilities test for assessing capacity would likely make the current established approach more complex and potentially less safe.

Amendment 50 seeks to specify certain matters that the person must be assessed as being able to understand in order for a determination to be made that they have capacity. Under the Mental Capacity Act, when a capacity assessment is carried out, the assessor must determine the salient information that the person needs to understand, retain and use or weigh based on the circumstances of the case. The amendment would diverge from this approach, both by specifying in statute the information to be understood and by including the requirement only to understand the information, not to retain, use or weigh it. The Committee may wish to consider whether that would in some respects weaken the test.

Amendment 50 might create two legally distinct frameworks for decision making that doctors would be expected to use. Again, this may introduce additional complexity for those undertaking these assessments.

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[Naz Shah]

It is the right and proper thing to do to give options, but we are talking about vulnerability. We have had the debate a few times now about people with vulnerability, and we heard during evidence sessions about coercion, capacity and all the issues relating to amendment 8 in respect of those with vulnerabilities being presented the option of assisted death. When I speak to my next amendment, I will cover some of this, because the Bill does not necessarily leave us with confidence that vulnerable people will be safeguarded. That is what amendment 8 also seeks to address.

Dr Rachel Clarke is a doctor who spends every working day with people who need palliative care. Her evidence cannot be laid aside. Dr Jamilla Hussain, who also gave evidence, is in favour of assisted dying in principle, but she raised significant concerns about the Bill as drafted, including on this issue. Dr Hussain said that her patients in Bradford have reduced access to palliative care, partly because they fear that doctors might try to end their life. She talked about how she worked with

“not only ethnically diverse communities, but those who are socially disadvantaged…I have taken this Bill to them and they have made it really clear—this is not just one community, but several, and I am not speaking on my behalf, but on theirs—that they are really fearful because this is what happened to them in covid. It affected everyone, but it affected some communities disproportionately because our services are not equitable. That could profoundly affect their healthcare, and not only in terms of end-of-life care. They are saying, ‘We will not even come to hospital ourselves, because we are worried that this would happen.’ This is not an academic or theoretical risk. We saw it happen in covid in Bradford. There were communities so worried that their loved ones were dying in hospital that they stayed at home and died earlier.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 190, Q247.]

Perhaps in some cases they died a death that could have been preventable. Dr Hussain said that it is “not a theoretical risk.”

Dr Hussain also said:

“The risk for somewhere like Bradford, where we are doing okay—we have a long way to go—is that the Bill creates a fear in those communities. I have been going out and trying to build trust—being trustworthy—and they made it really clear to me by saying, ‘We trust you; we don’t trust the system. So if I came into hospital, even if your team was there, I would be really scared to access palliative care.’ In a system that is doing okay, we are now adding this new risk. We need to mitigate against that.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 199, Q259.]

That is what we need to do. We need to listen to what the doctors who are treating vulnerable patients say about the risks to those people.

[Lewis Atkinson]

My hon. Friend will recall that we heard evidence from doctors from Victoria, which has a so-called gag clause; I think it was Dr Furst who said that that was “really problematic”. What does my hon. Friend make of the guidance from the Victoria Government? It states that under that clause a patient who asks a doctor, “Can you give me all the options?” is not allowed to discuss assisted dying; indeed, if a patient says, “Isn’t there something you can do to help me put an end to this?” the doctor cannot discuss assisted dying either. Does my hon. Friend agree that that is an example of a gag clause being deeply unhelpful to doctor-patient discussions?

[Naz Shah]

I am not sure that the amendment would be that kind of gag clause, so I disagree. If a patient says, “Give me all the options to bring an end to this,” the judgment of the doctor could be that assisted dying is an option. If that is the case, perhaps we need to look to the Government’s and Ministers’ wash-up process. When we are tidying up this Bill, I am sure that there will be plenty of opportunities for the Government to put in the significant words that safeguard patients. That is my feeling, but I thank my hon. Friend for his intervention.