Lord Katz
Main Page: Lord Katz (Labour - Life peer)
Lord in Waiting/Government Whip (Lord Katz) (Lab)
My Lords, I thank noble Lords for the insightful debate today. As they know, the Government remain neutral on the principle of assisted dying and on the passage of this Bill. Whether and how the law in this area should change is, of course, a matter for Parliament. The Government have no major workability concerns about any amendment in this group, but these amendments introduce concepts that largely duplicate what is already in the Bill.
I speak first to Amendment 39A, tabled by the noble Lord, Lord Blencathra. This amends only Clause 1, so it introduces inconsistency with later clauses in the Bill that relate to the doctor’s assessment. Furthermore, it is currently unclear who would be responsible for determining whether the individual has the required understanding of their diagnosis and the other matters specified.
Amendments 188A and 553G, tabled by the noble Baroness, Lady Coffey, and noble Lord, Lord Blencathra, would require registered medical practitioners to apply the principles from the Supreme Court case of Montgomery v Lanarkshire when discussing “material risks” with someone in a preliminary discussion. These amendments would have limited effect, although I note that it is not usual drafting practice to refer to specific cases in legislation, because doing so could mean that those references become outdated when case law is further developed or modified. I hope that addresses the question raised in the contribution from the noble Lord, Lord Harper. For my part, I love being surrounded by lawyers—but then of course I am a north London Jew.
Amendments 43, 312 and 340, tabled by the noble Baroness, Lady Coffey, seek to require that the person requesting an assisted death has a
“clear, settled and demonstrably informed wish to end their own life”.
There is no definition of “demonstrably” within the Bill. Therefore, it will likely be given its natural meaning, and this may result in little or no practical change to doctors’ consideration of the eligibility requirements. Noble Lords may wish to note that these amendments apply to the doctors’ assessments in Clauses 10 and 11, but not to the panel’s determination of eligibility in Clause 17.
The amendments in the name of the noble Baroness, Lady Lawlor, seek to place a greater emphasis on the person’s understanding of the physiological effects of the substance used to end their life, and any possible side-effects. While they present no major workability concerns, the current drafting could lead to some ambiguity. For example, the amendments introduce language that is inconsistent with language elsewhere in the Bill: for example, “lethal drugs” instead of “approved substances”. These amendments could be seen as duplicative, given the existing requirements in Clause 12(2)(c)(iv) that the
“assessing doctor must … explain to and discuss with the person … the nature of the substance that is to be provided … (including how it will bring about death and how it will be administered)”.
The noble Lord, Lord Empey, raised issues under Amendment 180, which is tabled in his name and that of the noble Lord, Lord Taylor of Holbeach. This amendment would require the assessing doctor, as part of the preliminary discussion, to explain to and discuss with the person the approved substances, the risks, complication and failure rates, and any possible contraindications in the person’s specific case. This may be seen as duplicative, as paragraphs (c)(iv) and (d) of Clause 12(2) already require the assessing doctors, as part of both the first and second assessments, to explain and discuss the nature of the approved substance and
“discuss with the person their wishes in the event of complications”.
This amendment would also mean that the discussion takes place at the preliminary stage, which is earlier than the Bill currently provides for.
As noted during the exchanges on this amendment, we can look forward to a longer discussion on approved substances and their regulation at what I believe will be group 49, as things currently stand, containing Amendment 537. We look forward to that.
The noble Baroness, Lady Hollins, made some contributions on impact assessments. The impact assessment considers a range of scenarios and presents potential future impacts based on available evidence and international comparisons. It is clear that this does not represent a policy position from the Government. The impact assessment was developed to inform parliamentary debate and sets out what we knew based on the Bill at the time. Should the Bill receive Royal Assent, it would allow for the Secretary of State to develop a robust regulatory framework for approved substances and devices used for assisted dying.
On the points from the noble Lord, Lord Wolfson, about preparing a process for ensuring consent and on questions of malpractice, this is an issue of policy, so these questions are rightly more for the Bill’s sponsor than for the Government. However, if the Bill gets Royal Assent, the Government will obviously ensure the safe and effective delivery of service.
The last point that the noble Lord, Lord Wolfson, made was about doctors’ current duties to patients and whether they should be stated in the Bill. Again, what is in the Bill is a choice for Parliament. The noble Lord raised a number of comments, so I will commit to taking them away, reviewing Hansard and trying to address them from the Government’s perspective. I will write to the noble Lord if I have missed anything in my response.
Having said all that, as noble Lords will be aware, these amendments have not had technical drafting support from officials. As such, I am unable to confirm whether the drafting is fully workable, effective or enforceable.
Baroness Lawlor (Con)
Before the Minister sits down, may I simply seek a point of clarification? I note that the Government’s position was that they did not envisage any serious operational difficulties with the substance of my amendments on the physiological effects of the drugs, but they had difficulties with substituting a different form of words for “approved” because it was not consistent with the Bill. Were that consistency there, would a Government, in seeking to implement the Bill as it is, require that the rules be brought into line, as has been suggested here, with current medical practice, to discuss and to ensure that the patient is given the full assessment of what could happen and what the risks could be?
Lord Katz (Lab)
To repeat—and I hope this helps—the Government do not see any major workability concerns. Our concern is specifically with the drafting, in that it uses different language from language that already exists in the Bill. We feel there is a risk of duplicating existing requirements in Clause 12 for the assessing doctor to explain and discuss with the person what approved substance would be provided and how it would bring about death. There could be the risk of that duplication, but there are no major workability issues.
Lord Falconer of Thoroton (Lab)
My Lords, I thank everybody who has taken part in this interesting and important debate. The amendments fall into four categories, all of which overlap. The first category is the amendments from the noble Lord, Lord Blencathra, which say that the patient has to have demonstrably understood the information about diagnosis, prognosis, treatment and the drugs that will be prescribed. The noble Baroness, Lady Coffey, says that “demonstrably” should be put before “informed”. She also seeks to insert into the Bill what is regarded as the Montgomery v Lancashire test from the Supreme Court—that is the third one. The fourth is that a number of noble Baronesses and noble Lords have indicated that they want to be absolutely clear that the patient is properly informed of the effect of the drugs, any side-effects, any complications and what is going to happen.
I have thought very carefully, listening to the debate, whether one needs to make any changes to the Bill in order properly to reflect that the patient has to be properly informed before they make their decision. There is absolutely no doubt on anybody’s part in the course of this debate that, before any decision is made, the person has to be properly informed, and that means they have to be properly informed on prognosis, diagnosis, palliative care options and what the effect will be of the drug being administered, including side-effects, complications and what may happen in relation to complications.
As far as the Bill is concerned at the moment, Clause 1(2) says that steps need
“to be taken to establish that the person … has a clear, settled and informed wish to end their own life”.
“Informed” there plainly has a meaning well acquainted to the law: that they know enough material to be able to take the decision. Enough material to take the decision in relation to prognosis and diagnosis would need to involve knowing what the level of certainty of the diagnosis is, what possible steps could be taken to alleviate the position and the various risks in relation to that, the effect of the drugs on me physiologically—the lethal drugs, if I choose to have an assisted death—what the risk of complications is and what would happen if I got complications. Without that material, it would not be “informed”. That reference to “clear, settled and informed” is then repeated four times, significantly, throughout the Bill.
First of all, in Clause 10(2), the first doctor has to be satisfied that the person has a clear, settled and informed wish to end their life. Secondly, the second doctor has to be satisfied that the patient has a clear, settled and informed wish. Thirdly, the panel has to be satisfied that the person has a clear, settled and informed wish. Fourthly, at the point that the assistance is given, the provider of the assistance, the co-ordinating doctor, must be satisfied at the time the approved substance is provided that the person has a clear, settled and informed wish to end their own life.
Lord Katz (Lab)
I thank the noble Lord, Lord Blencathra, for tabling these amendments. I note his wish to keep this brief so that we can move on to a later group to discuss the issues that he raises in greater breadth.
Amendment 39C seeks to exclude anyone whose primary motivations for the request for an assisted death are financial concerns, lack of housing or lack of social support. This would require someone to establish the motivations of a person requesting an assisted death. It is not clear who would make this assessment or how they would make it. It is also unclear how a number of the phrases in the amendment are meant to be interpreted and assessed, including “financial concerns”, “lack of housing” or “lack of social support”, because these terms are not defined. The amendment also conflicts with later provisions of the Bill setting out how eligibility is assessed in more detail, which would cause confusion. If passed, considerable further policy and drafting work would need to be done to clarify the intent.
In the spirit of brevity, I make no comment on the other amendment in this group. However, as noble Lords will be aware, the amendment has not had technical drafting support from officials.
Lord Falconer of Thoroton (Lab)
My Lords, I am grateful for how this has been dealt with. We have discussed this a lot, at Second Reading and in Committee. I have made clear that, while suffering may very often be the cause of somebody wanting an assisted death, it is not the trigger for it as a legal requirement. Why people want to end their life in the context of a terminal illness is for them to decide. The effect of these amendments is that a person is entitled to an assisted death only if the reasons for them wanting the assisted death are the symptoms, suffering or prognosis of the terminal illness. I am not in favour of inquiring as to precisely what is the cause. Severe misery may well be the cause in the context of a terminal illness. In my view, this provision would unduly limit the entitlement to an assisted death, so I am against these amendments because they go right against the principle of the Bill.
Lord Kamall (Con)
Indeed, and in fact many classical liberals and libertarians understand the individual’s role in a wider society. But that is not the basis of this debate, and I digress too much. I will return to the group of amendments.
I know that the noble and learned Lord, Lord Falconer, understands the concerns of those who have raised issues about minority communities and people being stuck in the system. But I also know that he has already made his view clear about the principle of seeking to exclude some of those other principles—if I am incorrect, I am sure he will correct me. So I suspect that, given the strength of feeling, we will return to these amendments on Report.
Given that—I understand that the Minister may not be able to answer all the questions now and we accept that he or one of his colleagues will write to us—we have to understand how the Government envisage how a person’s motivation beyond their terminal condition could be established. That is the crux of the matter. How do you establish that if you can justify it only on the grounds of terminal illness, not other motivating factors?
For example, what work, if any, have the Government or NHS England done to try to understand that? One assumes they may have to draw up guidance for this one day. Have the Government, or anyone in government, looked at how other countries have handled this issue, whether they do handle this issue, and what would have to change? We spoke earlier about the foundations of the National Health Service and what might have to change in guidance for many of the practitioners. Indeed, what training would be required?
As my noble friend Lord Deben has often said, this goes way beyond just the Bill. It will affect the Department of Health, the practitioners and the legal system. These are questions we need the Government to answer. They can still take a neutral position, but they have to understand that noble Lords seek to understand the implications here for government, the costs to government, and how that will change.
I understand these questions are in depth and recognise that the Minister may feel it is slightly unfair. I do not expect all the answers now. But it has been a constant theme throughout the debate and the many days in Committee that we need better answers from the Government. That is not a party-political point; it is purely that we want to see the implications of this on government: what extra costs there will be, what guidance will have to change and, however the Bill finally turns out, and in whatever form it reaches the statute book, how the Government will deal with that. I suspect that, for many noble Lords who are torn the Bill, that might be the deciding factor on how they vote at the end of the day.
Lord Katz (Lab)
I thank noble Lords for their considered contributions on the motivation for assisted dying. Before I go into the meat of my comments, I join the noble Lord, Lord Kamall, in thanking the House clerks and staff for all their efforts and dedication in allowing us to sit for longer on a Friday to consider these weighty issues properly.
I also share the noble Lord’s comments about our wider motivations across the House, and about generally in politics wanting a better society. For what it is worth, I find myself in agreement with the noble Lord, Lord Deben, that, indeed, no man is an island. Whether that makes me a classical liberal or not, I am not sure—probably not.
These amendments seek to amend the eligibility criteria for assisted dying, to require that the person’s wish to end their own life is due to their terminal illness rather than to other reasons. I will keep any detailed comments limited to the amendments on which the Government have major legal, technical or operational workability concerns.
Amendments 320ZA and 332AA, tabled by the noble Lord, Lord Blencathra, seek to prevent people being eligible for an assisted death if they are motivated by non-medical factors such as loneliness, poverty or lack of services. There are various workability issues with these amendments, which I will briefly outline to aid noble Lords’ consideration. First, it could be challenging to establish whether someone is seeking an assisted death as a result of specified factors, given that a person’s motivations could be complex. Furthermore, a wide range of factors could be deemed as non-medical, given that the term is not defined and the list given is non-exhaustive. It is also unclear how the patient or doctor are meant to proceed if these factors are present.
I raise no major workability issues with the other amendments in this group, which are rightly a matter for your Lordships’ House to decide. However, I would like to set out their potential effects, which noble Lords may wish to consider. The amendments would require a person’s terminal illness to be a motivation for them seeking an assisted death, but, as drafted, they do not require it to be the only or primary motivation. It is arguable that every person seeking an assisted death under the Bill would be doing so in some way because of their terminal illness, so it may be that, in practice, the amendments would not impact on who is eligible.
The noble Lord, Lord Kamall, asked me some questions. I would push back on his first question around how the Government envisage a process or system for establishing motivation beyond condition: we genuinely think this is a policy decision, and that is one for my noble and learned friend Lord Falconer, the Bill’s sponsor, and those others who support the Bill. On his question about any work or research that NHS England has undertaken, I do not have that answer at my disposal, but I am very happy to take it back and write to him.
Finally, I would just like to mention that none of the amendments in this group has had technical drafting support from officials, so the way they are currently drafted means that they may not be fully workable, effective or enforceable.
Lord Falconer of Thoroton (Lab)
My Lords, I join with the noble Lord, Lord Kamall, and my noble friend Lord Katz in thanking the staff for staying for so long this evening. I also congratulate the Committee on what was a very high-quality debate at the very end. We did incredibly well to have such a high-quality debate in the last hour or two at 6 pm. Thirdly, this is not in any way to denigrate the debate; it has been threaded through the whole of these Committee stages. Indeed, we had a quite similar debate last week, which the noble Lord, Lord Harper, referred to.
I will make three specific points about the amendment. There is a group of amendments, but at the heart of the lead amendment is that you should be entitled to an assisted death only where your motivation is
“because of the terminal illness”.
My noble friend Lord Katz adverted to this, but it is almost impossible to see that that has any real meaning in the context of a person who is, in fact, terminally ill. If any of us became terminally ill, it is almost impossible to imagine that the terminal illness would not have an effect on any decision that we would take, in particular a decision on whether we wanted an assisted death. The noble Lord, Lord Moore, touched on this. I do not know that I would put it in exactly the same way, but, to “Why do you want an assisted death?” they might say, “Well, obviously, I am terminally ill, and I have other factors as well”. So I am not sure that the amendment has any real impact.
Secondly, there is an underlying issue. I ask the noble Lord to let me finish—then, by all means, he can come at me at the end.
Secondly, there is an underlying issue. The noble Baroness, Lady Cass, said that perhaps breathlessness and pain should be the only justification, because that is all that doctors could properly measure. Again, that indicates a significant disagreement between us about the principle of the Bill. I do not shy away from saying that the principle of the Bill is that, once you are diagnosed with a terminal illness, then, subject to the stringent safeguards being satisfied, you should have the option of deciding for yourself how you die. If you go down the route that my noble friend Lady Berger, in her amendment, wishes us to go down, this, in my respectful submission, would be an impossible task.