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

Lewis Atkinson Excerpts

Committee stage
Wednesday 5th March 2025 Public Bill Committees

[Stephen Kinnock]

rose—

[Lewis Atkinson (Sunderland Central) (Lab)]

rose—

[The Chair]

I call Lewis Atkinson.

[Lewis Atkinson]

Thank you, Mrs Harris—you really are giving the Minister some exercise during these long sittings.

Amendment 14 likens assisted dying to organ donation. I understand that an organ donor, before the point of independent assessment, has had no other independent assessment, which is in stark contrast to this Bill. The idea that, by failing to support this amendment, we are somehow adopting a weaker framework than for organ donation is patently false.

As the Bill sets out, there are already at least two assessments by independent doctors. As per the amendments we have already agreed, those doctors must have training, as specified by the Secretary of State, on the assessment of capacity and coercion. The rationale behind this amendment is already met, and it is significantly more strenuous than the framework for independent assessment in the event of organ donation.

[Danny Kruger]

I am not sure that is right. The amendment insists that this referral and assessment should happen at the earliest stage possible, in the same way as for organ donation. One of the confusions of the Bill is that multiple different conversations could happen. The purpose is to ensure that this conversation with a psychologist or social worker, as per organ donation, happens at the very earliest opportunity.

[Lewis Atkinson]

I disagree with the hon. Gentleman’s reading. The amendment talks about the co-ordinating doctor, as in the first independent assessor, and that is the case in the provisions we have already adopted. Clearly, the co-ordinating doctor may consult—and must consult, as per the amendment we are about to get to—psychiatric or other expertise, if there is any doubt in their mind. Amendment 14 would not bring forward that assessment earlier than elsewhere. I urge hon. Members to bear in mind that the idea that this proposal is somehow weaker than the current human tissue regulations is absolutely false.

On the point made by my hon. Friend the Member for Bradford West, the amendment does nothing to address coercion by a medical professional who knew the person beforehand. Under the amendment, it is by definition an independent person who has no prior relationship with the person.

[The Chair]

I call the Minister.

--- Later in debate ---

[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.

[Lewis Atkinson]

I welcome the hon. Lady’s speech, which she made with her customary dignity and force. I feel we are repeating some of the discussions we had on earlier clauses regarding capacity, and it is for the reasons I articulated then that I believe we need to stand by the Mental Capacity Act—and not deviate from it by introducing language such as that proposed in the amendment—because that is where safety lies.

[Sarah Olney]

I believe I repeated several times in my speech that this is not about capacity; it is about mental illness.

[Lewis Atkinson]

I take the hon. Lady’s point, and I was about to come to that. The Mental Capacity Act already explicitly states that

“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

The language around an impairment in respect of the mind or brain is already set out in that Act.

As has been acknowledged, the Court of Protection has repeatedly found that people lack capacity, and such people would therefore not be eligible under the Bill in some of the circumstances the hon. Lady set out. By introducing a new, undefined concept of “impaired judgment”, which as I understand it is not a term that exists anywhere else on the statute book, we would be clouding the Mental Capacity Act.

[Sarah Olney]

Does the hon. Gentleman assert that it is therefore impossible for anybody with a mental illness that might affect their ability to make a decision about an assisted death to be judged to have capacity?

[Lewis Atkinson]

As I am sure the hon. Lady knows, there are gradients of mental health issues, from low mood to suicidality and so on. We should not prevent anyone from accessing an option merely because of a mild element of, for example, depression, which they have lived with for their entire lives, if they have then been diagnosed with a terminal condition.

The key point, as my hon. Friend the Member for Spen Valley made out, is that the idea that eligibility will be conferred as a result of mental health illnesses is not correct. As we have discussed, the definition of “inevitably progressive” in clause 2, which is at the heart of the Bill, clearly protects against such instances. I also highlight the amendments we have made that help to clarify some of this. Members have pointed out the amendment from the hon. Member for East Wiltshire on removing medical conditions from the Bill, which was very helpful in this regard.

I do not want to fall foul of Standing Order No. 42 on repetition, but I feel like with this issue we are repeating some of our discussions on capacity. In particular, my hon. Friend the Member for Penistone and Stocksbridge highlighted significant elements of the relevant legal framework in her speech at that point. In my view, setting out a test that is separate to the Mental Capacity Act, particularly in respect of the impairment of judgment, which is not then defined in any way, would undermine that Act, which has to be the cornerstone of the Bill.

[Kim Leadbeater]

My hon. Friend is making an important speech. Is he, like me, reassured that it is not just about capacity, but about someone’s clear, settled and informed wish? If someone is suffering from a mental health condition, there is a very strong chance that they will not meet the criteria. Also, my amendment 423 will strengthen the fact that the assessing doctors must speak to somebody else in regard to the patient, including eating disorder specialists.

--- Later in debate ---

[Lewis Atkinson]

My hon. Friend is absolutely correct. There are clearly further safeguards in those provisions, and also in the training provisions that we have already discussed. When the Secretary of State makes provision on training and assessment in respect of capacity and related matters, it is clear to me that they will do so with reference to some of the mental health conditions that the hon. Member for Richmond Park and others have referred to. Yesterday we agreed to amendment 275—which I was honoured to move—to ensure that people have had discussed with them “all appropriate” care, including psychological support, which further covers capacity. I would be absolutely horrified if there was any suggestion that people with mental health conditions should not have full access to all the support that may be beneficial.

[Sarah Olney]

Will the hon. Gentleman address the point that the requirement to refer for specialist psychiatric support is a requirement in similar legislation in other parts of the world—in Oregon, in California, in the state of Victoria in Australia, and in other jurisdictions that we heard evidence from? It is written into their legislation and provides a crucial extra safeguard, which is separate from the judgment about capacity because it is deemed to be so important.

[Lewis Atkinson]

Indeed, and that is why I support amendment 6, which we have just debated, to mandate referral for psychiatric assessment in cases where there is any doubt whatever. I think we have incorporated those safeguards and more but, fundamentally, as Chris Whitty said in evidence, for this legislation to be as secure as possible, we have to base it on the Mental Capacity Act, which has been tried and tested through the courts for more than 20 years.

The insertion of language talking about impairments of judgment clearly deviates from that Act, where an impairment test is already set out. I do not feel that is appropriate. I absolutely applaud the sentiments behind the amendment, but I feel we have sufficiently strengthened the Bill elsewhere and that the MCA and other provisions give the safeguards and the reassurance that we need on these issues.

[Naz Shah]

Apologies, Mrs Harris: I was late returning to my seat earlier and missed the opening remarks from the hon. Member for Richmond Park on this amendment. I am happy to be corrected, but my understanding is that, as it is, if somebody has anorexia—we are not talking about capacity, which I referred to in the cases of the nine girls I spoke about—that is an accepted mental health condition and the amendment is trying to exclude those people from having an assisted death. In the nine cases I spoke of, the court found that those girls with anorexia had capacity and ruled that they had a terminal illness.