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

Lewis Atkinson Excerpts

Committee stage
Tuesday 11th March 2025 Public Bill Committees

[Daniel Francis]

I am not entirely persuaded. I think there is currently a mixture of cases, and there will potentially be a mixture of cases in future. I hear what the right hon. Member says, but my primary concern is about the way things are. As I say, I am minded not to support the amendments on balance, but I am concerned that we could end up hearing stories about someone’s loved one of 50 years, or their child with a learning disability, having had an assisted death—and the first they knew about it was when it was too late.

[Lewis Atkinson (Sunderland Central) (Lab)]

It is a pleasure to serve under your chairship this afternoon, Ms McVey.

I feel that we are dancing on the head of a pin, but I oppose the amendment. Members across the debate have recognised that, as Dr Sarah Cox from the Association for Palliative Medicine said, it is always for the patient to decide. As my hon. Friend the Member for Rother Valley pointed out, both the original clause and the amendment rightly retain that decision with the patient. They also retain the discretion of the doctor, whether that is on an appropriate test or a best interests test.

I note that in its submission the Royal College of Physicians advocated the removal of the clause, saying that it goes beyond current practice. I support the clause on balance, because of the importance of these conversations and so on, but the physicians who are likely to carry out the conversations think that it is inappropriate to specify these conversations in primary legislation.

There are two phrases in the amendment that I think are entirely inappropriate. First, there is “concluded in good faith”. I am sure it is not the intent of the author and mover of the amendment, but it suggests that in other instances people might be acting other than in good faith. I commend the words from my hon. Friend the Member for Ipswich. We have to start from the point that doctors are operating in good faith. It is dangerous to set up a good faith test, as opposed to an “other faith” test, in primary legislation.

Secondly, I am certainly not trying to reopen the long debates we had about the Mental Capacity Act, but Members will recall that in those debates we were very clear that the “best interests” test should not and does not apply. Introducing language about best interests the first time in the Bill is very dangerous, and totally against the spirit and principle of what we have debated so far. For those reasons, I am against both amendments.

[Jake Richards]

My hon. Friend the Member for Sunderland Central has made many of the points that I planned to, so I will be brief. The primacy of patient autonomy when it comes to familial relationships is a principle that should not be interfered with in the medical sphere, which this is—we can call it treatment or something else, but it is undoubtedly a relationship between a doctor and a person.

I agree with my hon. Friend on the term “good faith”. I do not doubt the motives, but it put forwards the proposition that a doctor would act in bad faith and not tell a family member. It is a rather bizarre drafting, and wholly unhelpful for the intent for which it was put forward.

The most alarming is the second part and the issue of “best interests”. I will not labour the point that my hon. Friend has made, but what is a doctor to do? A doctor is not a social worker. A doctor is not a family support worker. What questions are they to ask? If someone says, “Oh, I don’t really want to tell my next of kin, who is my sister. We fell out last year because of tit for tat,” is the doctor going to make a value judgment as to whether that argument is profound enough to stop the notification?

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[Lewis Atkinson]

I fear that the point the hon. Lady is making relates to before her amendment 459 was accepted. Does she not agree that by accepting amendment 459, we have guarded against the first independent assessment not being available for subsequent decision makers?

[Sarah Olney]

I am not used to my amendments being accepted. The hon. Gentleman is, of course, absolutely right.

Dr Matthew Doré, the palliative medicine consultant and honorary secretary of the Association for Palliative Medicine, said in written evidence:

“Allowing patients to seek multiple opinions undermines procedural integrity. Furthermore, allowing the coordinating doctor to seek multiple opinions even further undermines the selection of doctors willing to provide AD”—

that is, assisted dying. He goes on:

“The lack of a centralised tracking system facilitates ‘doctor shopping’.”

Notwithstanding the fact that amendment 459 has now been accepted, there is still grave concern about the possibility of doctor shopping. We should take steps to avoid it. That is why I am speaking against clause 10 in its entirety.

Under clause 8, the independent doctor has five matters to verify: that the person is terminally ill; that they have capacity; that they have a clear, settled and informed wish to end their own life; that they are acting voluntarily and without coercion or pressure; and they are over 18. The last requirement is unlikely ever to be in any form of doubt, so I will focus on the other four. The effect of clause 10 is to allow someone to be assisted to die when one out of three doctors who examined them had concluded that they were not terminally ill, that they lacked capacity, that they did not have a settled wish to die or they were coerced. It therefore raises a real risk that someone not actually eligible for assisted dying would none the less be so assisted. In such matters of life and death, we ought to proceed with great caution.

Doctors can get things wrong, of course. If the first independent doctor did get it completely wrong, I would have no objection to the second independent doctor effectively acting as a form of appeal—or, to borrow the test from the law of medical negligence, if the first independent doctor reached a conclusion not supported by a reasonable body of medical opinion, of course it would be right for that opinion to be disregarded. But that is not what the Bill provides for, which is not an appeal or reconsideration but picking a new referee simply because the first answer was not desired.

I still have misgivings about clause 10 notwithstanding the fact that it has been amended. I urge other Committee members to vote against it. I appreciate your indulgence, Ms McVey.

[Rebecca Paul]

I rise to speak against clause 10 as it allows doctor shopping in the event that someone does not qualify for assisted dying. “Not happy with the verdict? Just find another doctor!” How many times are we happy for a patient to try again with a different doctor? It is inevitable that at some point the patient will find someone willing to make the statement and put them on their way to an assisted death, even if their eligibility is in doubt.

When I put forward the amendments tabled by my hon. Friend the Member for West Worcestershire (Dame Harriett Baldwin), which requested residual discretion for doctors, they were challenged by Committee members on the basis that the whole point of having defined criteria was so that they determined whether a patient was eligible. I run the same argument now: if the process is followed to the hilt and the independent doctor refuses to issue the statement, why on earth would we allow another bite—or even multiple further bites—at the cherry? Surely that is to allow abusers a way to push their victims into an assisted death by re-running the process again and again until they find a less attuned doctor.

Imagine the case of an elderly woman who has spent a lifetime under the coercive control of her husband. She is completely done with it all, and sees death as a welcome way to escape this man, who has made her life a misery. The abuse has escalated since she has become ill: because of her ill health, she cannot cook or clean any more, and he hates that. But no one sees. She never wanted the kids to know; she is really good at hiding it. Now, he wants to seek an assisted death, because it is better for them all. She agrees. When asked by a doctor, she is unlikely to say, “My husband is pressuring me into this, and I’m afraid of not doing what he wants,” particularly if she has suffered abuse over many years.

Let us say that the first independent doctor does a really thorough job—the kind of job that we hope all doctors would do. Perhaps the doctor manages to discern that the patient is very much controlled and unduly influenced by her husband. The trouble is that it can be very difficult to find hard evidence of coercive control. According to recent figures, only 3.7% of recorded cases of controlling or coercive behaviour result in a charge, and more than half of cases are dropped because of evidential difficulties. The doctor therefore cannot get the police to intervene; his only lever is the power to reject the application. So that is what he does. But the patient does not give up; she is still absolutely sure that the best thing is an assisted death, and her abuser is still whispering in her ear, telling her she is right.

The second independent doctor does not have the same emotional intelligence as the first, and he does not see what the first doctor saw. He approves the application.

[Lewis Atkinson]

This is a similar point to the one I made before: amendment 459, which we have just passed, means that, in the scenario that the hon. Lady describes, the second independent doctor will have in their possession the first independent doctor’s concerns about coercion. Does she not agree?

[Rebecca Paul]

I will come to that exact point shortly.

Members of the Committee will recall that I previously tried to get “undue influence” and “encouragement” added to the Bill explicitly to deal with more subtle forms of influence and pressure, as opposed to those that are more obvious to third parties. When objecting to my amendments, the Minister said that they were unnecessary, because “coercion or pressure” already covered them. I hope that the Minister is proven to be correct.

The key point is that those forms of behaviour are not always easily discernible. Dr Mullock told us in oral evidence that

“the kind of undue influence that might occur might be very subtle. More needs to be done to recognise that and the subtle encouragement that might take place, where a relative might frame their support for the person seeking to die in terms of, ‘This will be better for you,’ and, ‘Have you considered this?’ That is not necessarily an example of clear abuse, so when the person seeking to die then consults the doctor, they are not going to characterise what has happened to them as coercion or abuse. More needs to be done to discuss with the person whether or not they have been encouraged by the people around them.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 162, Q204.]

These are the very real consequences of this clause, which undermines the independent doctor safeguard. In written evidence, Mr Michael Vidal hits the nail on the head:

“It seems to negate the purpose of having a second opinion if the second opinion can be ignored and a fresh second opinion obtained.”

I recognise and welcome the fact that amendment 459 has been accepted. It would mean that the second independent doctor would have the benefit of the report of the first independent doctor. However, this is not a failsafe protection and cannot be relied on entirely. First, the report of the first independent doctor is required to be made available to the patient. In a case such as this, would the first doctor want to spell out exactly what led to that conclusion, knowing that it could place the patient in harm’s way if her husband saw it? Also, he is not 100% sure; does he want to make such accusations in writing without hard evidence?

Secondly, even if the report was detailed and available to the second independent doctor, he would still need to make his own assessment, and he might not agree. Or it could be that although he recognises signs of coercion over a long period, he may truly believe that, to the best of his knowledge, the decision made by the patient has not been coerced in that moment.

I am afraid therefore that clause 10 is a loophole that will be exploited by domestic abusers, and it is largely women who will pay the price. For that reason, I cannot support it.

[Lewis Atkinson]

I was not going to speak to this clause, but I feel I must rebut some of the points made, which are clearly incorrect. The hon. Member for Reigate asks how many further opinions there will be; the answer is clearly one, because that is what is set out in the Bill. The safeguards in amendment 459 mean that it is not just the second doctor who will be aware of the first doctor’s concerns; any subsequent decision maker will be.

We are about to discuss significant amendments in clause 12. However, whether there is a panel or the decision remains with a High Court judge, it is inconceivable that, when presented with an initial assessment that the criteria are not met and a subsequent assessment that disagrees with it, that third-tier decision maker will not want to explore the issues in detail. I believe that all Committee members are trying to work together in a spirit of genuinely improving the legislation, but our arguments and discussions need to reflect the amendments that we have accepted. Clause 10, as amended, is significantly improved and strengthened. It continues to provide significant safeguards for the Bill, and I am happy to support it.

Amendment 205 agreed to.

Question put, That the clause, as amended, stand part of the Bill.

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Such a provision for the Official Solicitor’s representative to appear would make it much harder for panels to miss information about an applicant. Currently, we are in effect asking the three panel members to be investigators, judges and jury. They will hear the evidence, decide whether they need to ask questions of the applicants and doctors, and based on that decide whether they need to summon other parties to speak. The picture that they receive of the applicant’s circumstances may miss key facts; that is not a responsibility that we can put on their shoulders alone. Amendments have been tabled that would permit the Official Solicitor to act on behalf of the applicant for assisted dying. If we care about making this a robust process that would protect vulnerable people, we should vote for them.

[Lewis Atkinson]

I think my hon. Friend just said that the amendments would allow the Official Solicitor to act on behalf of the applicant. Why would that strengthen the process?

[Naz Shah]

I think that by making some progress I will answer that question.

Turning to Sir James Munby’s question about what, if any, public funding arrangements there will be for the applicant, the two doctors and any other parties, experts or lay witnesses, each time a panel meets we will be asking three senior professionals to give up many hours of their time to scrutinise applications, listen to and perhaps question witnesses, and then decide whether to call further witnesses. I could ask many questions about funding, but I will ask just one at the moment. Both Ministers will be well aware that courts and tribunals in England and Wales face lengthy delays—in some cases, delays of years. Will the Government commit to adequately funding the panel so that applicants do not face lengthy delays?

Another question about the resourcing of the panels is just as important: can we make good on the commitment in the Bill to provide a consultant psychiatrist for every panel? I think the answer may well be no. We spoke to the Royal College of Psychiatrists during our evidence sessions, but at that stage my hon. Friend the Member for Spen Valley had not tabled the amendments that would create a panel including a consultant psychiatrist, so we did not ask the professional body whether it would be able to do so.

I have had private conversations with my team of senior psychiatrists. We asked whether England and Wales had enough consultant psychiatrists to serve on each panel. They said it was extremely unlikely. I would like to understand whether my hon. Friend consulted the Royal College of Psychiatrists before she tabled those amendments. If she did not, that seems an extraordinary omission.

Ministers keep saying that the Government will release an impact assessment only when the Committee has finished amending the Bill. I say again: that seems to me a most unsatisfactory approach to a Bill that would lead to such a huge change. Surely the Minister could ask civil servants to prepare a preliminary estimate of how many applicants there might be in England and Wales. It should probably be phrased as a likely minimum and likely maximum number. That would be extremely helpful. Surely the Government could do the preliminary work on whether the psychiatric profession in England and Wales is capable of meeting that demand. I say this in the light of my understanding that the present state of the country’s judiciary contributed to the removal of the judge in the first instance.

[Naz Shah]

That was not my understanding; I will come back to that point, because I am sure I have references to where that has been talked about. There is also the question of whether panels should be heard in public. Under new clause 16, the legal member of a panel would decide whether it should sit in public.

Finally, I return to Sir James Munby’s paper on this question. As I have gone through in some detail, he raised significant concerns about panel procedures set out in new clauses 14 to 17. Unfortunately, it seems to me that most of those concerns have not been addressed by new clause 21. Sir James was a very senior judge, who headed the family division of the High Court, and is someone we should listen to with the utmost attention on these matters. He said:

“I appreciate that some may point to the multidisciplinary membership of the panel and to an assumption that the function and process of the panel may (it is said) be inquisitorial rather than adversarial. Plainly, it might be thought, it is an advantage that the panel has a multidisciplinary membership, and it is often said that three heads are better than one. Yet it would be a mistake to think that either of these features of what is now proposed are sufficient to overcome the very real problems I have identified. They are not. What remains crucial is the substance, not mere appearances. If the panel is to perform its function effectively and do more than just ‘check the paperwork’—if it is to be the real safeguard intended by its proponents—then its processes must be much more thorough than is currently proposed.”

[Lewis Atkinson]

Has my hon. Friend had the opportunity to consider the functioning of mental health tribunals, which operate as panels in a very similar way to this proposal: chaired by a legal member with a specialist member and a medical member? They perform a similar quasi-judicial function, receive evidence and make important decisions on people’s healthcare choices. Does she not agree that that model provides a good example of how this system could work?

[Naz Shah]

My hon. Friend’s intervention takes us back to the concerns I already have. I understand that mental health tribunals relate to the Mental Capacity Act 2005, which would inform people on that panel in making their judgments. I have spoken extensively against the use of the Mental Capacity Act in this particular field.

[Lewis Atkinson]

I thank my hon. Friend for engaging on this issue, but this is not about the Mental Capacity Act; it is about the Mental Health Act 1983 and whether someone would be sectioned and denied liberty—a significant decision against the person’s own wishes. That determination is made by mental health tribunals sitting in that judicial function, day in, day out, with exactly the sort of panel membership outlined here.

[Naz Shah]

I either misheard my hon. Friend or did not understand his earlier point, so let me speak to the point he makes now. My understanding is that sectioning someone under the Mental Health Act is a very extreme measure. Someone is sectioned in circumstances in which lots and lots of evidence has been taken from people who know the person, and there is a history. That was certainly the case when I chaired a mental health charity. Whether it is carers or other people who contribute to that, there is a long-standing relationship; from my understanding, it is very rare for something to happen otherwise. That is my understanding and experience of it, but I am happy to have a chat with my hon. Friend to talk more about it and understand it more.

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[Jake Richards]

Yes.

The other side of the coin is that we must ensure that the process is workable. In Spain, 20% of people die before the panel hears their case. We must be very careful not to create something that is so burdensome as to be completely pointless. I believe that the amendments tabled by my hon. Friend the Member for Spen Valley aim successfully between ensuring flexibility and rigour. Each case will be different—more so than in any other set of proceedings that I can imagine, and I have thought hard. There will no doubt be some that are incredibly complex, in which the panel may require further assessments and hear from relevant experts, but there will be far more that are solemn and serious but straightforward, and that is correct.

Other amendments, such as amendment (d) to new clause 21, in the name of my hon. Friend the Member for Derby North, seek to mandate certain procedural steps. While I have great respect for her as a former colleague, I fundamentally disagree with her amendment, which would require that the panel “must consider” hearing from persons who may be

“interested in the welfare of the person”.

I repeat that this is not a welfare decision. The panel, just like the High Court judge, is not saying, “What do I think is in the best interests of this person?” It is ensuring that the person has made the decision per clause 1, where we started: “settled”, “informed” and “voluntary”. We enter new ground with this law change, and that is why it is a new process, but to my mind it is safer and workable. Colleagues can be reassured, and I urge people to support the change.

[Lewis Atkinson]

I thank my hon. Friend for giving way at the end of an excellent speech. Does he agree that the provision in new schedule 2 that allows the commissioner, who would be a sitting or previous judge, to give guidance and set procedure for the operation of panels would answer some of the concerns raised by those who think that there would not be sufficient judicial input into the procedure of the panels?

[Jake Richards]

That is an important point, because the change, as drafted in the various amendments, provides for real flexibility. That may cause others some concern, but to my mind it is a reassurance, because it will mean that a weighty figure, the commissioner, will be able to set out rules and regulations for the process to make sure that it is rigorous but is not so burdensome as to be pointless.