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

Marie Tidball Excerpts

Committee stage
Wednesday 12th February 2025 Public Bill Committees

[Rebecca Paul]

I support my hon. Friend’s comments. Outside of this place, I speak about this topic in a manner that is as sensitive as possible. When we are talking about the legislative changes that are needed to this Bill and how it interacts with other legislation, I will use the correct legal terminology, because I think it is really important that we do that.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

I appreciate the hon. Lady raising the need to use accurate legal language. Does she agree, therefore, that introducing “undue influence”, which is used regularly in the law of equity but not in the criminal law, would unhelpfully complicate matters, considering that coercive behaviour is defined in section 76 of the Serious Crime Act 2015 where it provides for an offence of controlling or coercive behaviour in that context? We have 10 years of case law. The hon. Lady rightly pointed to the importance of looking at case law and at how courts have dealt with this; the understanding of coercion in the criminal law offences is well known and well rehearsed, whereas the use of undue influence in the context of criminal law offences, which is what we are dealing with in clause 26, is not.

[Rebecca Paul]

I thank the hon. Lady for that point, but I do not think we are talking about criminal law here. This debate is not relevant to clause 24—it is relevant to eligibility. We are simply saying, through this amendment, that if a clinician thinks someone has been unduly influenced, they would not be eligible. I think the hon. Lady is crossing over to the encouragement point, but these are separate points.

[Dr Tidball]

Will the hon. Lady give way?

[Rebecca Paul]

I am sorry, but I am going to give way to the hon. Member for Bexleyheath and Crayford, if he still wishes to intervene, as I am aware that he has been waiting.

--- Later in debate ---

[Jake Richards]

Let me just make this key point. Members have raised the case of Re T. I must admit that I do not know that case, but I believe it is a 1992 Court of Appeal case about a refusal of treatment, so it is 33 years old. The law has moved on. As the Minister said earlier, the terminology of coercion and pressure is much more modern, and is used in legislation that has been drafted in the last decade, rather than the Suicide Act drafted in the 1950s and that Court of Appeal case from the early 1990s.

Last night, I briefly went back to my law books—I sound like I am really missing my old job—and looked into where the concept of coercion is used across different jurisdictions and areas. This is what I read: “Coercion is a phenomenon the courts have experience of handling. Generally, coercion as a concept in our law involves applying pressure, whether physical, psychological or moral, to force someone to act against their free will or better judgment. This pressure can manifest in various forms, such as threats of intimidation and undue influence, and is recognised across criminal, family, consumer and contract law.” It is used in forced marriage legislation. It is used in criminal legislation. Case law has made it very clear that coercion is used interchangeably with duress, defined as a constraint on a person’s choice.

I feel that we are dancing on the head of a pin. The law has been drafted by one of the most senior parliamentary draftspeople. The Government Minister has confirmed that the Ministry of Justice deems this to be a sensible course of action if this legislation is to proceed.

[Dr Tidball]

Does my hon. Friend agree, as Max Hill did in oral evidence, that it would be helpful to have definitions of the three concepts in clause 26? Although we are discussing an earlier clause, it is important to thread the needle with this statute and ensure that we are looking ahead, as the hon. Gentleman has rightly pointed out.

[Jake Richards]

That sounds very sensible—I think my hon. Friend is talking about her amendment.

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

Marie Tidball Excerpts

Committee stage
Tuesday 11th February 2025 Public Bill Committees

[Sarah Olney]

I have a suspicion that the hon. Gentleman may have made that point already in one of his many interventions. Withdrawing treatment is not the same as someone making an informed wish to have their death assisted. That is why we need to be very careful about considering whether the Mental Capacity Act is appropriate for that kind of decision. That Act is being used in a way it was not designed for. To use this definition of “capacity” is to accept the premise that this is just like any other treatment option and not qualitatively different, and fails to recognise the complexity and gravity of the decision.

The Bill also fails to consider that there may be a risk of assessor bias—that sometimes it may well be that a doctor who makes an assessment may well have their own views about the suitability of assisted dying as an option for that particular patient. They may be in favour of it, or they may be against it. If that were to sway them towards making an assessment against capacity, that could have lots of serious implications for the patient.

I have proposed amendment 34 because I think it is the best way forward at this stage, given the variety of evidence we have had and the real difficulty for us in this room of making an appropriate determination of the extent to which the Mental Capacity Act’s use may be modified for this purpose, or of coming up with something entirely new. I think the best way forward is to give the power to the Government—to the Secretary of State—to define the term “ability” in relation to this legislation at a later date.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

With respect to the hon. Member for Richmond Park, I do not support her amendments, which seek to replace the references in the Bill to the Mental Capacity Act with the concept of “ability”. First, medical practitioners already know, regularly use and well understand the Mental Capacity Act 2005. As a result, as Professor Chris Whitty said in evidence, where practitioners conduct such an assessment of an individual separately, they are usually in agreement in their decisions about the outcome in relation to that individual. That was also mentioned by my hon. Friend the Member for Stroud.

Secondly, the term “ability”, unlike mental capacity, is not an existing concept in law that we can draw upon in the context of complex medical decision making about consent to medical treatment. I therefore do not accept that it is a low bar.

[Sarah Olney]

Will the hon. Lady give way?

--- Later in debate ---

[Dr Tidball]

No, I will make some progress.

To replace the established concept of mental capacity with “ability” would create more problems than it seeks to solve, and is not underpinned by a clear statutory basis. Furthermore, the language the hon. Lady uses in her new clause 1 only echoes the wording of the second leg of the two-stage test in the MCA, in its language of fully understanding, using and weighing the relevant information. It does not, however, have the scaffolding and clarity of the five principles set out in the Mental Capacity Act, and it is a pale imitation of the second stage of the test of capacity, which is already in section 3 of the MCA.

Thirdly, the use and application of the Mental Capacity Act has been applied and litigated upon in our court system over the last 20 years, further nuancing its application in complex medical decision making and explicating, for example, the five principles in the MCA and the subsequent two-stage test for capacity. Contrary to what colleagues on the Opposition Benches have said already, it is used in cases where treatment is withdrawn. It is important to understand that in those circumstances, such withdrawal is not seen as an omission; it is seen as a deliberate act. It is therefore analogous to the usage in the Bill as proposed.

Fourthly, I have deep concerns that the use of the term “ability” and the concept expounded in new clause 1 imports an ableist approach, which I do not welcome, as someone who has worked in disability rights and policy for more than a decade and a half.

To return to my first argument, about the familiarity and usage of the Mental Capacity Act by medical practitioners, clinicians and the wider social care profession for two decades, many family members will be familiar with the term and used to using it as part of the wider care of people with learning disabilities, autism and mental health problems. The boundaries of those who are familiar with the concept go well beyond the walls of only medical practitioners.

In oral evidence, chief medical officer Professor Chris Whitty stated that the Mental Capacity Act

“is used up and down the country by doctors and nurses every day; they know it and they understand it. Although…it is a large piece of legislation, it is one that people have worked through in practice multiple times. If you ask six or seven doctors, ‘Does this person have capacity?’, in almost all cases you will get six or seven identical answers, because people are used to using it.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 33, Q7.]

To unleash the tiger of an unknown and untested concept of ability into a Bill that would benefit better from the well understood, measured and principled approach of the Mental Capacity Act 2005 does not best serve the patients that I know the hon. Member for Richmond Park seeks so carefully to protect. It is therefore worth laying out the paradigm that underpins the MCA and the principles it legislates for, and why it is so important to retain this at the heart of the Bill.

The presumption of capacity in the Mental Capacity Act exists because it is considered a fundamental principle of respecting individual autonomy, meaning that every adult is assumed to have the ability to make their own decisions unless there is clear evidence proving otherwise. This protects against unnecessary interference in people’s lives and ensures that they are treated with dignity and respect, even if they may have a disability or medical condition that could potentially impact their decision-making abilities.

I want also to reflect on the robust language in clause 2(3), which states:

“For the avoidance of doubt, a person is not to be considered to be terminally ill by reason only of the person having one or both of—

(a) a mental disorder, within the meaning of the Mental Health Act 1983;

(b) a disability, within the meaning of section 6 of the Equality Act 2010.”

That provision, the tightly drawn limit on the need for the person’s terminal illness to leave them with only six months to live, and the third stage of the test—using the Mental Capacity Act to understand their decision making—mean that we have a strong set of safeguards.

[Danny Kruger]

Will the hon. Lady give way?

[Dr Tidball]

I will give way to the hon. Member for Richmond Park, who asked first.

[Sarah Olney]

The hon. Lady has moved on considerably from the point that I was going to make, so I took it that she was not going to take interventions. Although I would have liked the opportunity to respond to some of her points, I have kept my counsel. Since she has now given way, I want to make something of a point of order. The hon. Lady mentioned that she thought my use of the word “ability” was ableist, and I want to put on the record that I had absolutely no intention of it being interpreted in that way. I meant no offence, and I hope that the word would not have been considered in such a light. If that caused any offence, I apologise. I hope that the general meaning of the word “ability” is well understood in this context.

[Dr Tidball]

I am grateful to the hon. Lady for making that statement. That is not the assumption. As I will say later, the term “ableism” is very much grounded in a deficit model of disability, which assumes that somebody is not capable of doing something themselves—for instance, making important decisions—whereas the Mental Capacity Act starts from a different perspective: it presumes that the person will have the ability to do something until proven otherwise. That is why I feel that the concept of ability does not align well with what is needed in understanding and providing autonomy to people making very difficult decisions at the end of their lives.

[Danny Kruger]

The hon. Lady accurately quoted clause 2(3) about a person not being considered to be terminally ill “by reason only” of having a mental disorder or a disability. That word “only” is very important, as she acknowledged. Does she recognise that that explicitly allows for somebody whose judgment might be impaired by a mental disorder still to be eligible for an assisted death, because they would still be judged to have capacity under the terms of the Mental Capacity Act? That term “only” is in fact not a safeguard; it is an access to an assisted death for somebody with impaired judgment.

--- Later in debate ---

[Dr Tidball]

I appreciate the hon. Member’s intervention, but I do not agree. Taken together, the parameters around the six-month limit, clause 2(3) and the requirement for a mental capacity test cumulatively create a safeguard in the Bill.

Importantly, the MCA’s two-stage capacity test is already underpinned by robust safeguards, which address exactly the issue the hon. Gentleman raised. Stage one asks whether there is a disturbance or impairment in the person’s brain or mind, and stage two asks whether the disturbance or impairment is severe enough that the person cannot make a specific decision. That two-stage test already deals with the issue he raised. The references to the Mental Capacity Act in the relevant clauses of the Bill ensure, crucially, that we import that test too.

Elements of the language in the new concept of ability proposed by the hon. Member for Richmond Park appear to attempt to echo the second stage of the Mental Capacity Act test, as just described. That has four elements: understanding information about the decision to be made, retaining that information in the mind, using or weighing that information as part of the decision-making process, and communicating the decision by talking, using sign language or any other means. It is important to say that those core elements are built on the scaffolding of the five principles of the MCA, working in a progressive way.

Opposition Members talked about the unwise decision, but the principles in the Mental Capacity Act work collectively and cumulatively together. That is only one step, then, which is followed by the fact that decisions must be taken in the person’s best interest, and there is well-worn and well-trodden understanding of how we ascertain that. It is important that those things all work together. The issue is already addressed under the MCA; if we do away with the MCA, we lose not only the scaffolding of the five principles, but the important safeguards of the two-stage test.

[Naz Shah]

My hon. Friend made reference to that already being done, but where is the evidence that the capacity stage she talked about is actually happening? We had evidence from the Royal College of Psychiatrists and, as she said, Professor Chris Whitty. Where is the evidence that it is being done well, as things stand?

[Dr Tidball]

I do not have a list of the case law in front of me—I am sure it will be possible for that to be found for my hon. Friend—but it is done regularly. The Mental Capacity Act is used regularly in decisions about the withdrawal of life-support treatment. That is the case, and she is welcome to search for the case law.

[Sarah Olney]

The hon. Lady talks about the four tests and parts of the Mental Capacity Act; the point I was making was that we want to retain elements of the Act, although using it in its entirety is problematic in this context. The four functional tests about whether someone is capable of making a decision absolutely should be retained—as she said, that is well tested, it works well and people understand in a court of law exactly how to apply it—but some of the other elements of the Mental Capacity Act are problematic. That is why I seek to redraft “capacity” to “ability”—I accept that that might be a problematic word, but I hope the hon. Lady will take on board my earlier comments—and that is what is important. The hon. Lady is saying we should not take out those bits of the Mental Capacity Act that are valuable and important, and I agree.

[Dr Tidball]

I am pleased to hear the hon. Lady’s agreement. As someone who has worked in this space for a long time, I say that if she does not want to have the impact in law of putting in place a concept that would be ableist and take a deficit model of disability, we need those five principles that are already embedded in the Mental Capacity Act. We also need the stringent two-stage test, the second stage of which has the four elements that I set out. Only then can we be certain that we are approaching the paradigm of this complex and important decision making as one where we understand the autonomy and best interests of groups of people we all wish to best protect.

[Sojan Joseph]

Will my hon. Friend give way?

[Dr Tidball]

I will make some progress.

The concept set out by the hon. Member for Richmond Park is the bare bones of what is needed in the complex decision making required across various stages of the Bill. In such decision making, the MCA has a wide and well-used toolkit to determine capacity. That leads to my third point. The Mental Capacity Act has been applied and litigated in our court system over the past 20 years. The chief medical officer, Professor Sir Chris Whitty, said in his evidence that the Act

“has the advantage of being tested in the courts. That has gone as far as the Supreme Court, and the various ambiguities that were inevitably in the legislation have been clarified by senior judges. Therefore, to practitioners like me, it feels like a piece of robust and predictable legislation.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 33, Q7.]

He continued later:

“If there were no Mental Capacity Act, there would be an argument, which has been used for a long time, that the Bill would have to define what was meant with a fair degree of clarity.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 36, Q14.]

I do not see sufficient clarity in the hon. Lady’s concept as set out in the amendment.

At a later evidence session, Yogi Amin, a solicitor and partner at Irwin Mitchell, augmented Sir Chris Whitty’s argument by saying:

“I wholly recommend and support the idea…to defer to the Mental Capacity Act for capacity assessments. I have been working in this area for over 20 years, before and after the Mental Capacity Act came in, and I have done cases all the way up to the Supreme Court, as well as day-to-day different cases around the country. It is well understood how capacity assessments are done, and it is ingrained into the practice of practitioners generally and of legal practitioners in the courts.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 140, Q176.]

He continued:

“It is a well settled and understood approach to the law, and producing a new one would throw up a whole new conundrum, where people would be questioning how to approach it, etc. It is not broken—it works well.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 141, Q177.]

Finally, for further clarity, I will vote against the amendment because of the ableist assumption in both language and concept. Ableist language assumes that disabled people are inferior to non-disabled people and perpetuates deficit discourses about such groups. I believe that this does not take the approach that we see in the paradigm of the Mental Capacity Act, which puts disabled people’s choices, autonomy and control over their choices at the heart of this legislation.

[Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)]

I thank the hon. Member for Richmond Park for tabling the amendments. Fundamentally, I do not agree with them, but I am grateful for her good intentions. I understand the concerns that she has raised, and she makes an eloquent argument, but I fundamentally disagree.

In my view, the amendments would only lead to abandoning the well-established principles codified within the Mental Capacity Act. They would introduce a degree of woolliness and legal uncertainty by introducing of a new term that is, as yet, undefined. That would make the operability of the Bill so much harder and would move us away from the Mental Capacity Act, which has a heritage of some 20 years and is already well established in the use of advance directives around organ transplantation, the withdrawal of treatment and the decision to undergo major operations that can have life-changing or life-limiting consequences.

--- Later in debate ---

[Danny Kruger]

That is absolutely right. I do not think best interests can apply in this case. That is why the Mental Capacity Act is being abused. As the hon. Member for Penistone and Stocksbridge said, it is supposed to be cumulative. We are supposed to consider all aspects of the Mental Capacity Act, and best interests should be part of a consideration—but how on earth does one make a best interests decision about somebody deciding to commit suicide? The hon. Gentleman is right that best interests are excluded in the Bill, so the Mental Capacity Act is not being used, except for this most basic, low-level bar to cross, which is the capacity decision.

[Dr Tidball]

For clarity, I agree with my hon. Friend the Member for Sunderland Central on what would strengthen the Bill. The exceptions only apply where the right and proper Mental Capacity Act process has been gone through and the person doing that assessment has arrived at the point that that person does not have capacity. It is only in that very narrow set of circumstances where they have determined that the person before them does not have capacity to make the decision at hand that they then go to the second look at whether making such a decision would be in the individual’s best interest. The specific exclusions listed in the MCA only apply in that stage.

What my hon. Friend the Member for Sunderland Central is suggesting is that we table an amendment that would add to the list of specific exclusions; that would further strengthen the two stages. First, there would be the full Mental Capacity Act tests that may determine that the person does not have capacity. Such an amendment would give us belt and braces in circumstances where the person does not have capacity. Under the Bill currently, the person would fall out of scope and not be able to seek assistance if it had been determined that they did not have capacity. A belt-and-braces approach would make sure that there is no circumstance in which it could be determined by a medical practitioner or any other that it was in their best interests to follow this course of action.

Under the Bill as currently drafted, those people who have not got capacity as a result of the Mental Capacity Act would not be able to have access to the provisions in the Bill. My hon. Friend the Member for Sunderland Central suggests that we augment that even further so that there can be no doubt that, where it has been determined that the person does not have capacity, following the Mental Capacity Act, we should also add a very clear exception—

[The Chair]

Order.

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

Marie Tidball Excerpts

Committee stage
Tuesday 11th February 2025 Public Bill Committees

[Naz Shah (Bradford West) (Lab)]

I rise to speak in support of the amendment tabled by the hon. Member for Richmond Park.

The key word here is “capacity”. There has been much debate around the Mental Capacity Act. I will go back to the oral evidence we heard, as well as the written evidence and submissions in relation to the amendments and the clause. The psychiatrists who have advised are against it. I appreciate and recognise the contributions from my hon. Friends the Members for Penistone and Stocksbridge and for Bexleyheath and Crayford, who spoke eloquently about the word “ability” from his experience. I recognise that we have not had the opportunity to test the concept of ability.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

I appreciate my hon. Friend bringing up that point. It is important to note that all Commonwealth jurisdictions that have assisted dying use the concept of mental capacity. We are basing the utility of the Mental Capacity Act not only on 20 years of the courts and medics dealing with it, but on the learning of other jurisdictions that have put assisted dying in place. The concept of ability, however, has no basis in law.

[Naz Shah]

I absolutely concur that we are testing in regard to other jurisdictions. In Oregon, there is not just the assessment of capacity but a referral to a counsellor.

We have had lots of evidence when it comes to capacity, and I will go back to some of the key points. The Royal College of Psychiatrists stated explicitly that the Mental Capacity Act is

“not sufficient for the purposes of this Bill.”

Explaining why, the Royal College of Psychiatrists said that assessing the capacity to end one’s life is “entirely different” from assessing for the capacity to decide treatment.

Three psychiatrists who gave evidence to the Committee —Professor Allan House, Dr Annabel Price and Professor Gareth Owen—all expressed doubts about the use of the Mental Capacity Act to assess whether a person was in a fit state of mind to undertake assisted dying. When Professor Allan House was asked why some people might choose assisted dying, he said they are vulnerable. When asked what he meant by that, he said:

“They are not people asserting autonomy and pleasure in their ability to make a choice; they are people describing to you things that are negative influences on their life.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 161, Q202.]

Professor Gareth Owen said:

“I have looked at mental capacity a lot in research, and there is no experience of the decision to end one’s own life. It is outside the experience of the Mental Capacity Act, the Court of Protection, the associated research and practitioners on the ground. The reference to the Mental Capacity Act in clause 3 puts you into an area where there is no experience of the central capacity question under consideration. It is very important that Parliament be clear-eyed about that.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q287.]

[Dr Tidball]

On the hon. Lady’s point about being clear-eyed, it is important that we look closely at the drafting of the Bill and the utility of the Mental Capacity Act. There are eight occasions on which a person who might seek assistance can formally consider their decision making, and the Mental Capacity Act would come into play at each of those stages. A person with a terminal illness who wishes to seek assistance does not make a one-off decision; they make the decision eight times during the process, so we have a wide variety of opportunities to ensure that their consent is ongoing.

[Naz Shah]

I recognise that there are eight occasions, but when we debate later clauses I will talk about coercion and manipulation. Those also apply to the issue of capacity, and the Bill refers to them on numerous occasions.

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

Marie Tidball Excerpts

Committee stage
Thursday 30th January 2025 Public Bill Committees

[Rachel Hopkins (Luton South and South Bedfordshire) (Lab)]

Q My question, directed at Chloe, is about the practical application of access to doctors for patients, as suggested in the proposed legislation, and how doctors have those conversations with patients—particularly, when it comes to geriatricians, older patients. We heard from somebody yesterday who said that there were concerns around how older people were treated, and the potential risk of elder abuse. I would be interested in the practical application of those conversations, in your experience.

Dr Furst: First up, a patient has to specifically ask me about voluntary assisted dying. They have got to use words that really imply that that is what they want. I will often ask any relatives to leave so that I can have a conversation just with them, to try and reduce the risk of coercion, and then invite the family back.

One of the practical things that I often ask the patient is when they started thinking about this. Is it something that they have always considered should be a right, or is it more of a new-found belief given their current suffering? I want to understand what their current suffering is. I ask specifically whether they feel a burden on their family and friends. It is an hour-plus long conversation to really understand them and their suffering.

Again, I make sure they understand all the other treatment options available to them and what good palliative care looks like. I will often be prescribing other medications as part of that good palliative care—opiates and anxiolytics. As a geriatrician, I am also making sure that their mood is also addressed, and that this is not a reactive depression. I am really doing a holistic and comprehensive geriatric assessment as part of that voluntary assisted dying assessment as well.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

Q This question is for Dr Furst and Professor Blake. Many of us on the Committee are committed to the need to protect disabled people and to ensuring that the Bill has as many safeguards in as possible. We heard evidence yesterday that anorexia may qualify under assisted dying laws in other jurisdictions. Have there been any cases of people with anorexia accessing assisted dying in Australia, and in your view do the respective laws across Australia allow for that? Secondly, are there any lessons that we can learn on building in safeguards in relation to those with learning disabilities?

Dr Furst: All around Australia, mental health as the primary terminal illness is excluded, so anorexia by definition is excluded. I have had a patient come to me with anorexia as their terminal illness requesting voluntary assisted dying. It is a relatively easy assessment because they do not meet the standard criteria, and I was able to explain to them that they were not eligible. But it opens the opportunity to have good, in-depth conversations with them about what they are going through.

I cannot talk to the learning disabilities question, other than to say that every time a patient comes to me the assessment is directed to the patient. I saw a patient today with motor neurone disease who is on continuous bi-level positive airway pressure and is using Eyegaze. The assessment and conversations I have with her are based around what she can do for me. I have had patients who have been able to put a thumb up and down, and I have had trachy patients. I cannot necessarily talk about learning disabilities, but as a holistic practitioner you are trying to make sure that the patient in front of you understands everything and is given the full opportunity to express their wishes.

Professor Blake: I would just say—

[The Chair]

Order. I can only take one answer. I am sorry, Meredith, but we have not got time. It is one answer to one question.

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

Marie Tidball Excerpts

Committee stage
Thursday 30th January 2025 Public Bill Committees

[The Chair]

We must stick to the timing of the sittings resolution, as decided by the Committee. We have a long list of people who want to ask questions, so it will be one question with one answer; if Members could indicate who they would like to answer, that would be helpful.

Before we proceed, Dr Tidball has a declaration of interest to make.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

I just want to make sure that it is on the record that I have been taught by Professor Hoyano; indeed, well before I was elected, she was a colleague at work.

--- Later in debate ---

[Kit Malthouse]

Q My question is to Dr Richards. Obviously health service medics are dealing with end-of-life situations at the moment—they are withdrawing treatment or declining to give treatment if they think it is futile. In those circumstances there are a set of safeguards. How do those safeguards compare with the safeguards in the Bill? From your research, do you think there is any adjustment required to the safeguards we have at the moment?

Dr Richards: Assisted dying is quite categorically different from the end-of-life scenarios you are talking about there, so you would expect a very different set of safeguards. It is a misunderstanding to think that assisted dying is of a piece with other life-ending decisions. It is really something quite different and requires a different framework.

[Dr Tidball]

Q My question is to Dr Richards, although if Claire Williams has anything to add, it would be really helpful. We have heard evidence from overseas about the value of doctors being able to have holistic discussions about end-of-life choices under an assisted dying law. What research is there on patient experiences in those jurisdictions, in particular the evidence around quantifying the experience of dignity and respect in end-of-life choice making where assisted dying is available?

Dr Richards: Quantifying dignity or respect—

[Dr Tidball]

Or real-life examples?

Dr Richards: So the question is: what is the evidence on trying to find out about this interactional space where you are asking about people’s motivations? Is that right?

[Dr Tidball]

Q There are two elements to my question. The first element is talking through the available evidence on how those holistic processes work in countries that have assisted dying. Secondly, we have heard a lot about choice from witnesses across the last two days, but a lot of the consideration about choice is about enabling patients to arrive at greater dignity and respect in their death, so it would be useful if you could reflect on any evidence around that.

Dr Richards: By holistic processes, I assume you mean the multidisciplinary team conversations that we talked about in the previous session.

[Dr Tidball]

Yes.

Dr Richards: Maybe Nancy knows the evidence on that. Talking about gaps in research, I am an anthropologist, so I am interested in the discourse and the conversations that are happening, and I think there is a lack of evidence about that. We have a lot of evidence where it is tick boxes, for example, about motivations and procedure being following. We have less qualitative, in-depth, interactional evidence about that kind of holistic decision making.

Professor Preston: We have done some research where we interviewed doctors and healthcare workers who have had those conversations. The majority decide against it, but they are still having those conversations. We also heard the experience of the bereaved family, and what it was like to have those conversations. On the whole, the conversation is predominantly about palliative care—“Can we do something different? How can we meet and assess your needs?”

In some cases, the doctors in palliative care, particularly in Switzerland, certainly would never suggest assisted dying, but if the patient asks for it, they equally do not advise them how to get an assisted death. In some cases they said they sort of consciously blocked the conversation, so that the person timed out and could not have it. The emphasis is perhaps the other way in places like the Netherlands and Belgium, where it has been around longer and is much more integrated into other services, such as care homes and palliative care, as part of a holistic assessment.

I remember visiting a team in the Netherlands, and when they got a new patient they said, “We assess them for their preferences about whether they want to die, about resuscitation, about advance care planning and about euthanasia.” My jaw dropped; I was British—this was illegal. They do it in such a natural way. They said, “We need to plan that for them, because we need to understand what is right for them.” They are not suggesting it—they are just trying to take it on board. I would say that the predominance of the conversation is about palliative care, but if the patient wants the assisted death, they either might assist—which is rare—or suggest how they go to a right-to-die association. But more likely they will still tell them how palliative care can help.

[Naz Shah]

Q Professor Preston, in your written evidence to the Committee, you said that Parliament should:

“Consider whether there should be a stated exception to the usual presumption of capacity under the Mental Capacity Act 2005 in the Bill.”

What kind of standard do you think Parliament should consider adopting instead of the use of the Mental Capacity Act, and why do you think that?

Professor Preston: Again, this came from my colleague Suzanne Ost, who is a professor of law. As Naomi said, this is something very different from choosing to consent to an operation or even a research study. This is finite—it is a finite decision, so therefore the assessment should be a bit more. What I will say about mental capacity is that we had a PhD student who assessed mental capacity decisions by hospice care staff—particularly doctors, but also a lot of the nursing team who were making the decisions. She was a lawyer, and her conclusion was that it was incredibly well assessed. That was in terms of safeguarding—so, when people were going back to what we might consider unsafe homes—but that is what the person wanted, because their life was that unsafe home. I am talking about social deprivation and things like that. The people in this particular team were very good at assessing that and applying the Mental Capacity Act, according to her research.

--- Later in debate ---

[Sarah Olney]

Q Dr Price, I am really glad that we are able to have the Royal College of Psychiatrists in front of us today; thank you for making the time. I want to ask you about paragraph 11 of your written evidence, which states that it is the royal college’s view that the Mental Capacity Act

“is not sufficient for the purposes of this Bill.”

Could you expand a little on that and, if you feel able, make some recommendations as to what you think could be sufficient?

Dr Price: Thank you. In answering this, I will also refer back to Professor Gareth Owen’s oral submission, thinking about the purpose that the Mental Capacity Act was drawn up for and the fact that decisions about the ending of life were not one of the originally designed functions of it. We would need to think carefully about how that would then translate into a decision that was specifically about the capacity to end one’s life.

We also need to think about how that would work in practice. When we are thinking about capacity assessments, it is usually related to a treatment or a choice about a treatment or about somebody’s life—for example, changing residence. Psychiatrists and doctors and actually lots of professionals are very used to those sorts of decisions and have gathered a lot of knowledge, expertise and experience around it. This particular decision is something that in this country we do not have knowledge, expertise and experience in, and we therefore need to think about how that would look in practice.

As for advice to the Committee about what that might look like, I think that we need to gather what evidence we have—it is actually very thin—from other jurisdictions that think about capacity as part of this process. I am thinking about my PhD: I visited Oregon and talked to practitioners who were directly involved in these sorts of assessments. They described the process, but they are not using the Mental Capacity Act as their framework. They described a very interpersonal process, which relied on a relationship with the patient, and the better a patient was known, the more a gut feeling-type assessment was used. We need to think here about whether that would be a sufficient conversation to have.

One of the things that I have thought quite a lot about is how we can really understand the workings of a mental capacity assessment, and one of the best ways we can do that is to see who is not permitted to access assisted suicide because of a lack of capacity and what that assessment showed. We do not have data because the assessments for people who were not permitted to do it are not published; we cannot read them, so if this becomes legislation, one of the suggestions that I would have—it is supported by the Royal College of Psychiatrists—is to, with patients’ consent, record capacity assessments to see whether they meet the standard that is necessary. I think it is important to set out the standard necessary and the components needed to be confident about a mental capacity assessment. That will help with standards, but will also help with training, because this is new territory for psychiatry, for medicine, and to be able to think about consistency and reliability, training needs to actually see a transparency in capacity assessments.

[Dr Tidball]

Q This is a question for Dan Scorer. I have worked with a learning disability charity, My Life My Choice. I have done a lot of work with that charity on self-advocacy in the context of healthcare, so I am really keen to hear from you. We know there are excellent initiatives that focus on supporting people with learning disabilities to engage with advanced care planning, so that their preferences at the end of life can be respected. I just wondered whether you could share some lessons learned, particularly in relation to giving people with learning disabilities a voice and an opportunity to talk about what matters to them at the end of life, and say, as part of that, what we could incorporate into the regulations that are being developed as part of the Bill.

Dan Scorer: There are two key concerns I will touch on. One was covered just at the end of the last session, with the question about preliminary discussions, and that is certainly a key area that we have concern about, about how that initial conversation is initiated and structured. For us, that really leads into a conversation around rights to advocacy. It would be extremely concerning if people with a learning disability who were terminally ill were not fully prepared and supported for that discussion.

For us, this links into the experiences that we had during the pandemic, which were touched on in yesterday’s evidence session by Dr Griffiths and others. We had people with a learning disability who were being consulted by medical professionals about “do not resuscitate” or “do not treat” decisions, and they were not being properly prepared for or supported in those discussions. Indeed, in one of our own care services, we had someone we support who was called up by a GP and asked whether she would want the kiss of life. The GP was trying to explain it to her excessively and she said, “No, of course not. I would not want to be kissed by someone I do not know.” Potentially, a “do not attempt CPR” notice was put in place. That example just shows the importance of preparing and supporting people for such discussions, so we want to see a right to advocacy included within the Bill to support people considering their end-of-life options.

Also, building on the previous question about the adequacy of the Mental Capacity Act, there is a question about the adequacy of training, awareness and compliance with that Act now. That is a huge issue that has been addressed, for example, through the Oliver McGowan mandatory training on learning disability and autism, which is rolling out across the NHS and social care services at the moment. However, in addition to the MCA, we also need to make sure that clinicians fully understand the Equality Act and the NHS accessible information standard about rights to information and support for disabled patients.

On clause 5, on training, we want to see much more specificity about the level of training that clinicians would have around the Mental Capacity Act and to make sure that they are fully aware of their responsibilities to make reasonable adjustments for patients, and to support them with understanding their choices around end-of-life care, which could include assisted dying.

[Sojan Joseph]

Q I want to come to you, Michael. The Royal College of Psychiatrists has given a written statement, which says:

“Mental disorders, such as depression, are more common in people nearing the end of their life. Delirium is more common… Hopelessness is a common symptom of depression…And people’s capacity and consent can be affected when they are going through this condition.”

In the last few days, we have heard much evidence that expressed concern about capacity assessment and that said, as Dan mentioned, there should be an advocacy service available. Rather than having the current model of two doctors and the court, if we have a panel with experts on it who can consider psychosocial assessment and capacity, would that make the Bill stronger, with more safeguarding being introduced to it?

Dr Mulholland: Sorry—can I check whether that was a question for me at the Royal College of GPs or a question for the Royal College of Psychiatrists, because I think that statement was in their evidence?

--- Later in debate ---

[Naz Shah]

Q Under clause 4(2), doctors would be allowed to raise the issue of assisted dying with a patient, unprompted. Dr Rachel Clarke gave evidence to this Committee that, in some circumstances,

“The very act of raising assisted dying in that way will make that vulnerable patient think, ‘God, is this doctor telling me that my life is not worth living any more?’”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 75, Q93.]

We heard from Dr Jamilla Hussain yesterday. She talked about mistrust of the NHS, particularly post-covid, where people had DNRs attached to them—disabled people and people of ethnic minority backgrounds in particular. Dan, are you concerned about the potential impact on people with learning disabilities?

Dan Scorer: Yes. One of the first things that I said earlier was about how the initiation of that first conversation is potentially an extremely risky and dangerous moment for people with a learning disability who are terminally ill. Your question is absolutely spot on, from the point of view that it could be highly suggestive and push people on a course that they may not want to go down. That is why I am suggesting that that initial conversation has to be incredibly well supported and structured.

There should, in our view, be an advocate who is supporting the person and preparing them for that discussion. Under the principles of the Mental Capacity Act 2005, the person should have accessible information in advance of that discussion so that they are fully informed about all their rights in terms of treatment options at end of life. That discussion with a clinician should not be taking place until the person has been able to consider that information and have support from an advocate, so when the conversation does happen the person is fully informed and has had time to think about what their wishes might be. That would reduce the risk, which is absolutely there, that people could take the initiation of that discussion as a statement, “This is what you should do.” We absolutely do not want people to be in that position. We want strong safeguards and support in place if the Bill becomes law.

[Dr Tidball]

Q Dan, I am really keen that we ensure that if the Bill passes, the voices of disabled people are continually involved in understanding its impact, particularly on the issue that you have just raised. Earlier, we heard evidence about implementation taskforces that are used in other jurisdictions. I am considering tabling an amendment on an advisory council. How might we ensure that the voices of people with learning disabilities can be included in such a body?

Dan Scorer: There are a couple of things that I would like to say in response. One is about clause 31, on guidance from chief medical officers. Immediately, I would say that people with a learning disability should be involved in the development of that guidance from chief medical officers. That guidance will be key to many of the issues that we have discussed.

Clause 35 is about the review of the Act. The lived experience of people is absolutely vital to that. The Bill says that it will be five years until we have that review. Our view is that that is far too long. If the Bill becomes law and if there are really serious issues and discrimination taking place against people, we will want to know that a lot earlier than in five years’ time, and we will want action to be taken. Our suggestion is that review should be earlier. We would want to see strong representation from patient groups across that, as well as from people who have been involved in the process, such as family members, advocates and clinicians, to make sure that if serious issues are being raised, they can be picked up early and addressed.

[Lewis Atkinson]

Q It is late, and I am far from being an expert on Welsh devolution, but I want to ask Professor Lewis a question, not least because we have not come to him for a little while.

Although it is not my area, I absolutely note the concerns and the discussion about respecting the democratic will of the Senedd in these matters. Would you suggest any potential avenues in the Bill to incorporate an element of positive affirmation by the Senedd, or its consent? What do you suggest we look at?

Professor Lewis: Formally, there is a need in any event for a legislative consent motion in relation to the specific bits I mentioned earlier, I have suggested one potential avenue, which is that the Senedd and Welsh Government take on responsibility for whether and when the Act commences in Wales. Another option might be to do a thorough “think once, think twice, think Wales” review to see to what extent other functions of the Secretary of State might be better exercised in Wales by the Welsh Ministers. That is a non-exhaustive list, but I hope it helps.

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

Marie Tidball Excerpts

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Juliet Campbell]

Q So rather than going straight to “I have made this request, or this has been suggested to me, and this is the path we are going down,” there is something that should happen in between.

Professor Ranger: Well, you would not really want any clinician to push this view on any patient. It has to come from the person themselves. That is the key thing around capacity and autonomy. I do not think that people should ever say to a patient or an individual, “Is this something you have considered?” It has to be led by the patient.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

Q Professor Ranger, may I pick up on the points that Glyn Berry made about the different circumstances in which patients find themselves? The barriers to healthcare as a result of health inequalities, access to education and disability are well documented. How could your members help to remove the barriers for such groups in access to the provision of assisted dying?

Professor Ranger: It is vital that any of those barriers be removed and that we always maintain outstanding care at the end of someone’s life. The reality is that the majority of palliative care is given by nursing staff, whether it is in the community, in someone’s home, in a hospice or in a hospital. It is key that it be an expertise and a specialist practice in which someone has extra training and extra education. The skills of listening to patients, advocating for them and ensuring that they are pain-free at the end of their life—these are skills that nurses have now, and it is vital that our nursing members maintain them. They are often the one a patient will speak to at 3 in the morning when no one is there.

As Glyn said, it is vital that the wider team be included in the Bill. The Bill talks about the guidance and recommendations being for the chief medical officer, but I think it is absolutely vital that the chief nursing officer be a key part of the guidance and the drawing up of any care, because even in these circumstances it is nursing staff who will give the majority of the care.

[Dr Tidball]

Q To pick up on your important point about advocacy, how would your members detect coercion, undue pressure or dishonesty by family members or other supporting parties on which the patient was relying in relation to seeking assisted dying? At what point would there be a report to the police by your members?

Professor Ranger: Safeguarding is part of our professional responsibility now. Whether it is for a child, an adult or an elderly person, part of our role is to be vigilant against financial misconduct, physical abuse and mental health abuse: any of those things is a responsibility of every nurse now. It is a very good and simple process. You do not have to investigate or give a judgment; you need to refer it to be investigated. That takes the pressure off an individual clinician. Our job is to be vigilant and to refer safeguarding anywhere we think that there is any form of abuse. I think that that process would remain and could be part of how we do things now.

[Dr Tidball]

Q Just to follow up on that, because it is really important: do you think your members would have the ability to pick up on such coercion, dishonesty and pressure from other parties potentially being placed on a patient who is seeking assisted dying? What other training or support would be needed for your members?

Professor Ranger: We would want more support. I am not going to say that we always get it right. Sometimes things happen that we miss and we do not report. I cannot say that we get it right 100% of the time. When the Bill talks about education and training for medical staff, it is absolutely vital that nursing staff are included because we will need to be vigilant around anyone feeling they are a burden.

The Bill would add other skills that we want to make sure that nurses are included in. Education for medical staff is absolutely pertinent for nursing staff, so that nurses build on skills they already have. There will be a difference between the care of someone wanting assisted dying and palliative care. Those are two slightly different skills and it is really important that they are not always lumped together. Being involved in assisted dying will require a specialist skill and specialist training, and we would very much want nursing to be included within that.

[Dr Tidball]

Q But you believe that your members would be able to pick up on and identify issues such as coercion?

Professor Ranger: I do. They are professionals, and I believe they would be able to.

[Jack Abbott]

Q My question, which relates to some of the points made earlier, is for Glyn Berry. Your organisation has recommended a new role: the approved palliative care professional. To go into the detail a bit more, you make a number of recommendations on what that role would include, such as ensuring that the person has the mental capacity to make the decision. First, are you therefore saying that this new role should sit alongside the two-doctor process, which has already been outlined in terms of final decision making? If the approved palliative care professional felt, for example, that this person did not have mental capacity, should they be able to, as it were, stop the process?

Secondly, what level of training would that person need in terms of time? We have, for example, been talking about a two-year process. If this new role came into effect, how long would that person need to be trained for to fulfil it adequately? Thirdly, do you have a sense of how many of these professionals we would need to make this a functioning system? Those are three separate questions.

Glyn Berry: To answer the first question, we feel, for the reasons I outlined earlier, that the role of an approved palliative care professional would sit beside the role of clinicians, balancing clinical and social observation and assessment.

In terms of the training, we, as social workers, already have continuous training opportunities to become best interests assessors, practice educators and approved mental health practitioners, so we envisage that the training would very much be along those lines. Doing those roles currently requires a course of training at university.

Our thoughts, at the moment, are that that would be for palliative care social workers, whether they are in charities, trusts or local authorities, or are independent, because that is where things sit with us at the moment and we know our roles. We like to think that it would roll out to other professionals, however, because assessing capacity is not specifically the role of the social worker; other professionals are able to, and do, complete capacity assessments.

It is quite difficult to answer your question in terms of numbers at the moment. If we were talking specifically about palliative care social workers, we currently have around 200 members in our association, but there will be other people out there who are not members and we do not know who they are. It is a role that could expand.

One of our other recommendations is that palliative and end-of-life care, as an aside to your question, is also brought into qualifying roles for people in training, such as doctors, nurses and allied health professionals, as well as social workers. We could see that happening in the future.

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

Marie Tidball Excerpts

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Sean Woodcock (Banbury) (Lab)]

Q Coercion is one of the main issues that people who are concerned about the Bill raise in opposition to it. That would include myself. We had many distinguished witnesses this morning, and the view was that coercion is “rare” in healthcare generally. It was almost given across that we did not need to worry about it, because staff are so well trained in safeguarding and so on, and they have such a level of experience. What are the views of the panel on that? Is coercion something that we should really not be so concerned about?

Dr Clarke: Based on my clinical experience, I would push back on that in the strongest terms. I am the kind of doctor who believes there is nothing to be gained from sugar coating reality. We have to be absolutely honest with patients and the public about shortcomings, failings and areas where my profession and the rest of the NHS are getting things wrong.

It is my clinical experience that not only are the majority of doctors not necessarily trained in spotting coercion explicitly, but they are often not trained explicitly in having so-called advance care planning conversations with patients around the topic of death and dying, and how a patient would like the end of their life to proceed. It is almost impossible for me to overstate how much avoidable suffering occurs right now in the NHS not because of a lack of resources for palliative care—although that is an enormous problem—but because of a lack of confidence, skill and expertise among the medical profession writ large with these very difficult conversations.

We are all familiar with the idea of death and dying being a taboo in society. People are scared of it, and they hesitate to bring it up with their friends and family. In my experience, many medical students and doctors also suffer from that anxiety. They are scared, and they find it a taboo subject. What that means is that sometimes coercion occurs because the doctor—the consultant responsible for this person’s care—will not even bring up the fact that they think the patient is dying, because it is an uncomfortable conversation. Conversely, I have worked with senior hospital consultants in the NHS who have deliberately prevented our team from accessing their patients, because they believe that the hospital palliative care team wants to kill the patients, and that if I go and see the patient, I will give them a lethal dose of drugs.

These are the kinds of extraordinary misunderstandings and failures to prioritise patient autonomy that are happening now. That is even before we get started on conversations around whether someone would like to consider assisted dying, so it is a huge problem.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

Q My question is for Dr Ahmedzai. The Select Committee inquiry into assisted dying received evidence that there were not any indications of palliative or end-of-life care deteriorating in quality or provision following the introduction of assisted dying. Indeed, the introduction of it has been linked with an improvement in palliative care in several jurisdictions. I have two questions, if I may. What more could the Bill do to strengthen the available choice at the end of life and the regulation of these choices as set out in the codes of practice? If you could answer that one first, I will come back to my second question.

Dr Ahmedzai: I have visited many of the jurisdictions around the world—such as Oregon, where I met the original judge who brought in the law, as well as the doctors, nurses and patients involved—and it was clear to me that if patients had not accessed palliative care, they were pointed towards it. Obviously, you cannot force anybody to go and have palliative care, but they were certainly informed about it.

In the Netherlands, I commend a system for doctors called SCEN—support and consultation on euthanasia in the Netherlands. These are trained doctors working for the equivalent of the BMA, I believe, who, as Dr Clarke has referred to, are going and supporting doctors who are not familiar with things. They often come from a background of palliative care and pain medicine, so they are making options available that other doctors in the process, for instance, have not brought up. In Australia, there is clear evidence that palliative care is becoming more available.

The European Association for Palliative Care produced a report more than 10 years ago in which it examined all the countries in Europe at the time, and it found there was evidence that palliative care was improving in scope and availability alongside the forms of assisted dying that were happening there. I am reassured that bringing in some form of assisted dying, particularly the form proposed here, would be a boost to palliative care.

One of the things I would like to see is that anybody who is involved in the process is constantly asking the patient, “What about palliative care? Have you actually accessed it?” Right now, if they have not raised their hand and asked for assisted dying, no one has that conversation with them. They are in a vacuum and a bubble, and not receiving palliative care, whereas this provision would possibly make it more available.

[Dr Tidball]

I have two follow-up questions on that basis.

[The Chair]

Order. I do not want to squash any discussion, but I ask Members and the panel to bear in mind that we have until 3.15 pm for this session. I will be as lenient as I can with questions.

[Dr Tidball]

Q On the basis of your 39 years of experience and the Select Committee evidence that I mentioned earlier, do you acknowledge that improvements on both assisted dying and palliative care can run in parallel and do not need to be mutually exclusive?

Dr Ahmedzai: In the interests of brevity, yes.

[Dr Tidball]

Q You talked about the role of medical practitioners discussing this issue, which is of course in clause 4(2) of the Bill. Paragraph 4.2 in your own evidence was very helpful in discussing that, as it makes it clear that it is

“entirely consistent with current medical practice and with compassionate care”

to raise assisted dying. You also said that raising the topic did not have adverse effects. How could clause 4 be strengthened to ensure that patients are presented with a range of treatment options at the end of life and relay any concerns that others have raised about suggestibility where this is mentioned in isolation?

Dr Ahmedzai: That is a complicated question. The first point is that right now, as Dr Clarke pointed out, it is scary to patients to be told that they may actually be receiving palliative care. When it has been mentioned—by an oncologist, for example—many patients say, “I do not want that. Don’t let them come anywhere near me or anywhere near my relatives.” It is not unusual that people may have an adverse reaction to just hearing about the service, but here the difference is that the person has actually asked for it.

I personally believe that it would be advantageous if there was formal training, as Dr Clarke has mentioned, specifically to have the kinds of conversations that we now talk about, such as about psychological issues and suicidal tendencies. It used to be thought that if you mentioned suicide to somebody, it would give them the idea, but of course it does not; it saves them, because they say, “Thank you. Yes, I was having those thoughts.” Bringing up assisted dying is never going to be harmful to the person, even if they had not thought of it. They will just say, “Well, it is not for me.”

[Dr Tidball]

That is very helpful; thank you.

[Rebecca Paul (Reigate) (Con)]

Q My question is to Dr Sarah Cox. What do you think will be the impact on palliative care of introducing assisted dying?

Dr Cox: Professor Ahmedzai has talked about the evidence, which was written up to 10 years ago. There is actually more recent evidence, looking at the last 10 years, where European countries and American states have been assessed in terms of the development of palliative care services. That more recent evidence shows that although palliative care services have improved in those countries where assisted dying has been implemented, they have improved three times more in countries where assisted dying has not been implemented. The evidence from that study shows that the implementation of assisted dying is impeding the development of palliative care services.

The other thing we are really concerned about is the impact on funding. It is unclear how this is going to be funded. It looks as if it is going to be within healthcare, and if so, there will inevitably be competition with other aspects of healthcare, including palliative care, for those limited resources. There are finite numbers of doctors, nurses and side rooms in hospitals. If palliative care and assisted dying were funded from the same pot, I think there would be a massive detrimental effect on palliative care because we would be in competition for a limited resource.

I am also concerned about our palliative care workforce, which we know is already in crisis. Eighty-three per cent. of our members told the Royal College of Physicians in 2023 that they had staffing gaps, and more than 50% were unable to take leave because of those staffing gaps. Forty-three per cent. said that if assisted dying were implemented within their organisation, they would have to leave. This has a massive impact on palliative care, in terms of its potential to develop both our funding and our workforce, who are really concerned about this.

--- Later in debate ---

[Naz Shah]

Q Following up on that, in the cases in which you authorised prosecution for murder or manslaughter, were issues of coercion ever involved? What were the bold points—the top lines—of those prosecutions?

Sir Max Hill: That small handful of cases involved an elderly couple where either he—it was usually a he—or she had chosen to bring to an end the life of their lifelong partner and, once that act had been carried out, claimed that it was an assisted suicide in circumstances where the surviving partner was merely carrying out the wish of the person now dead. There are a handful of cases in which that is clearly wrong and should not be accepted and where murder should be the offence brought before the court.

The point, though, is that throughout the time that I served as DPP—and, indeed, the time served by all my predecessors—we did not have the coercion offences created by the Bill, which I suggest would be a significant advance, and nor did we have a legal system in which the investigation was taking place before the death. It was the other way around. In each of the 27 cases I considered, the deceased individual was already dead, and that is when the scrutiny started. The major advantage of the Bill, if I can put it that way, is that that will be reversed, and scrutiny will be before death. In the case of coercion, where it fits the new potential clauses, prosecutions can—and, I am sure, will—be brought.

[Dr Tidball]

Q It is extremely helpful to understand the opportunity for scrutiny before death. Building on that point, are there any safeguards around those practices that are not currently included in the Bill but should be, particularly around detecting coercion and exploring alternative care options? I also have one follow-up question, if I may.

Sir Max Hill: I think that coercion and the coercion clauses in the Bill should be read alongside the capacity clauses. What we are looking for, as required by clause 1(1) and clause 1(2), is a clear, settled and informed wish, voluntarily made without coercion or pressure. Those aspects were taken, at least in part, from the Crown Prosecution Service guidance on 1961 Act cases. Capacity involves understanding information, retaining it, using it and communicating it. If those hallmarks are not there, you may be in a situation where you should be considering coercion. I think you read the two together.

To answer your question directly, the criminal liability clauses—clause 24, and the new offences in clauses 26 and 27—are robust. As a matter for your scrutiny, they are aspects that we do not have in the law at present. There is, of course, the addition of clause 36, under which you cannot be a witness or a proxy to the procedure that is enshrined in the Bill if you are too close to the terminally ill person. That is another hallmark of the Bill that will hedge against coercion.

[Dr Tidball]

Q I want to follow up, because this is really important in strengthening the Bill. Based on your prosecutorial experience, what key elements should be present in the definitions of coercion, pressure and dishonesty? I also have a bit of a technical question, if I may. Do you think they would be better placed in clause 26 or in clause 40, under interpretation? I am asking what more you can say on the key elements of coercion, pressure and dishonesty, and I am asking about their placement in the Bill to make them as accessible as possible to medical practitioners and patients who will want to rely on it.

Sir Max Hill: My inclination is that clause 26, which is part of the full body of the Bill, is the right place for this. As with the interpretation clause, clause 40, and as with the way we interpret statute as a matter of course, there are aspects of other statutory offences or Acts of Parliament that help us when we are seeking to determine what coercion is. The creation of the offence of coercion and control, now very commonly used in domestic abuse investigations and prosecutions, has brought us into this territory. It is not beyond the wit of anybody who seeks to use and interpret this Bill to also look for other parts of statute that deal with coercion.

I make the same point about capacity. What is in the Bill is very slender, one might say, because clause 3 simply invites the reader to look across to the Mental Capacity Act 2005. But that Act is very clear on what mental capacity is and how it is defined. I think what I am saying is that it is a drafting point, and I am not a parliamentary draftsman, but I do not have a problem with the definitions of dishonesty, coercion and pressure being in clause 26, where they are. It is not the only place one would look, though; there are other sources.

[Dr Tidball]

Q You have helpfully acknowledged the link that we need to make on coercion to strengthen this, but on the other two elements—dishonesty and pressure—is there anything else that we need to look to in order to make this more robust?

Sir Max Hill: “Dishonesty” is a term of art in common use, but it is also a term of statute. Anyone investigating or, still more, prosecuting would understand what dishonesty means. I accept that there is a wider point—not so much for interpretation but for understanding—that this Committee may want to consider, of how much of that existing definition needs to be imported into the Bill. As with mental capacity, I would suggest that, beyond perhaps the odd footnote, it is not necessary for you as a Committee to define again what dishonesty means, because we have it elsewhere.

Alex Ruck Keene: On pressure, I think the Committee would be really assisted by having a look at the learning of the High Court judges exercising their jurisdiction under the inherent jurisdiction in relation to people who are said to be vulnerable. They have developed an awful lot of tools, where they are trying to look at people in complicated situations—potentially, but not necessarily, with impairments—who are caught up in what one person brilliantly described as being caught in a spider’s web. Those are the sorts of sets of tools used when judges are trying to work out what is going on, and whether it is the side of the line we consider to be acceptable or the side of the line we consider unacceptable—because “pressure” is doing a lot of work there.

[Jake Richards (Rother Valley) (Lab)]

Q Thank you all for your written evidence. Sir Nicholas, in your helpful written evidence, you adopt Sir James Munby’s criticism of the current proposal for judicial oversight, and you instead recommend what you call a “Spanish-style specialist panel”. Could you set out for the Committee what you see as the benefit of that approach compared to what might be described as the stark judicial oversight of the High Court judge?

Sir Nicholas Mostyn: One per cent would be 6,000 deaths a year. If each took two hours to process in the High Court—you have to read it and hear the evidence; one of them has to be oral and you have to write a judgment—that is 12,000 hours. Each High Court judge does 1,000 hours in court—outside court, they do lots—so you are talking about nearly three quarters of the entire family division doing nothing but this. It is impossible, in my opinion, for this to be done by the High Court. It should be done in the Spanish way by a panel that is set up. In Spain, the chairperson of the regulator sets up a panel for each case—a doctor and a lawyer. They have to agree and they check that everything has been done lawfully. They do not make any value judgment about whether it is in the person’s best interest. They check that it has all been lawfully.

Interestingly, in 2023, 10% extra denials were done by the panel. I do not know whether that was because they were concerned about voluntariness or whether they were concerned about suffering—because the criterion is suffering there—but an extra 10% was done by the panel, so the panel was not just rubber-stamping. They denied an extra 10%. I believe that an ad hoc system like that, with a doctor and a lawyer doing a check, would be the best way of doing it. The High Court—trust me, I’ve just come from there—has not got the capacity to deal with 6,000 cases of this nature.

--- Later in debate ---

[Jake Richards]

Forgive me, Mr Dowd. I meant that, in terms of the assisted dying process in the Bill, there is no automated mechanism for family members, or indeed any third parties, apart from the doctors, to have notice of this intention. Is there a concern, regarding this appeal point, that perhaps interested parties would not know?

Sir Max Hill: I would suggest that the key to this is in clause 12(5), and that is why I have recommended just striking out the words “High Court” and putting in the word “panel”, and then reading the whole of clause 12 as amended, with those situations in which there are steps that “must” be taken—and there are many—and those in which there are steps that “may” be taken.

In clause 12(5), following that logic, we would imagine that a panel, just as the High Court,

“may hear from and question, in person, the person who made the application”

but

“must hear from…the coordinating doctor”.

The appellate mechanism, which I agree there needs to be, will be looking sharply at the operation of that subsection. In other words, when the panel made its decision to refuse, on what basis did it make that decision and from whom had it heard? We can well imagine situations in which a co-ordinating doctor, having taken his or her own steps to ascertain the views of the nearest and dearest, would satisfy the panel as to what the views of the family are. The reverse of that is that there is no indication here that, having gone all the way through the panel, the family would have been made aware or considered at all. I think that that will be a rare scenario, but I am not a medical professional. I think you can cover that, perhaps with some changes here or there on what you impose on the panel as a mandatory duty and what you leave by way of discretion, subject to the rules of procedure that the panel would then adopt.

[Dr Tidball]

Q I have a question for Sir Max Hill and Alex Ruck Keene. Your insight on clause 12 has been helpful. What procedures would you recommend be adopted for testing and, if need be, challenging the evidence as part of an evidentiary process linked to the panel that you set out?

Alex Ruck Keene: This is, for the moment, predicated on the fact that we are still in the High Court, as opposed to slightly making up policy on the fly about a panel. Assuming it is the High Court, it seems to me the Court has to be discharging a properly inquisitorial jurisdiction, which means it has to be armed with the tools to do that, which includes arming it with the tools to call for its own evidence. It also seems to me that the High Court would have to be armed with its own ability to not just receive evidence from one side and have someone testing it. That then brings you to the only player in town who could possibly do that, which would be the Official Solicitor as advocate to the Court.

I do not want to emphasise too much the question of resources, because if Parliament thinks this is sufficiently important, the resources will be voted through. But it is vitally important to note that the Official Solicitor is completely overloaded, and we would be asking the Official Solicitor to act as advocate to the Court in every single one of these cases. You could not have it be optional; you cannot say that it is some and not others. If it is going to be inquisitorial, the High Court has to have the ability to say, “This is one-sided; someone needs to tease it out,” so the Official Solicitor would have to be funded to be advocate to the Court and, if necessary, instruct lawyers in every single case.

Sir Max Hill: The model that I was espousing would not necessarily involve the Official Solicitor at all. It would make no draw on the administration of the Court or any officer of the Court, still less full-time judges. It would allow the appointment of recently retired judges, as we have in a number of scenarios—surveillance commissioners, for example—and a fresh administration. With that, as with the High Court model at the moment, there is the primary set of provisions, which Parliament must impose, and it is important that that is sufficient for what Alex called an inquisitorial function. Those are in part mandatory—those things that the panel must be satisfied about, which are set out in clause 12(3). Then there are those that are discretionary, which are set out in clause 12(5).

What sits between the two is very important. That is currently expressed as “Rules of Court”, but it would be the rules of the panel, or the commission that appoints the panels. In a court scenario, we are all familiar with criminal procedure rules and civil procedure rules; that is the secondary stage that is reached once the primary legislation has been fixed. That, too, would apply to the commission or panel process, but I do not necessarily think that it would involve using existing, paid judicial resources at all.

[The Chair]

Unless there are any more pressing questions—

--- Later in debate ---

[Naz Shah]

I beg to move an amendment to amendment (a), at end insert—

“Richard Robinson, CEO of Hourglass, Cherry Henry-Leach of STADA, Standing Together Against Domestic Abuse ”.

I completely agree with my hon. Friend the Member for Spen Valley and I am grateful to her for adding Professor Jane Monckton-Smith to the witness list. I also absolutely agree that the evidence we receive is really valuable.

This is an amendment tabled yesterday by the Mother of the House, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) yesterday, to which I have added my name.

The reason for the amendment is that Hourglass focuses on domestic abuse of older people and it has particularly noted that the majority of such victims are female. Hourglass estimates that one in six elderly people are victims of coercion in the UK. This raises serious concerns that such people could be pushed into ending their lives if the Bill is enacted. Hourglass has not published a public opinion on the Bill.

Standing Together Against Domestic Abuse has said that

“We must echo concerns raised by the VAWG sector”—

the violence against women and girls sector—

“and disability activists about the bill’s current safeguards. There is insufficient clarity on what constitutes coercion and limited reflection on carer capacity to support someone terminally ill. Without robust measures, there is a real risk that assisted dying could be exploited as a tool for coercion or even femicide.

Statistics show that over 88% of unlawful ‘mercy killings’ are perpetrated by men towards women, often involving violent means. These troubling realities demand urgent consideration in shaping this legislation.

We also highlight the health sector’s role in identifying domestic abuse. With 80% of victim-survivors having their first or only point of contact in healthcare, it is critical that health professionals are equipped to identify and respond to abuse.

We call on the Government to ensure the proposed bill includes stringent safeguards and that healthcare systems are equipped to recognise and prevent the potential misuse of assisted dying. Femicide is already a crisis in the UK, and no law should inadvertently contribute to its escalation.”

All my adult life, I have had experience of dealing with domestic abuse and coercion, and I draw on that experience to speak to these amendments. Although Professor Jane Monckton-Smith is an expert, she is an academic. These two organisations work with people who have been victims of abuse.

In addition, we had an official meeting with the Clerk to discuss the proposals for Committee sittings. It was said at that meeting that we would only have witnesses who would give evidence, particularly in person, that would contribute to the deliverability and the workability of the Bill. Since then, we have had families added to the list of witnesses. That adds weight to the argument that we should have witnesses who are providing a service to victims directly.

[Dr Tidball]

I, too, support my hon. Friend the Member for Spen Valley and in particular I want to highlight the helpful addition of Kamran Mallick of Disability Rights UK. That augments an already comprehensive list of expert disabled people, which includes: Professor Tom Shakespeare, an internationally renowned disability rights academic; Dr Miro Griffiths, a Disability Studies scholar at the University of Leeds; and Chelsea Roff, the founder of Eat Breathe Thrive. On the panel, we will also have a representative of the Equality and Human Rights Commission, who will be able to give a good overview on the intersection between protected characteristics. Finally, there will be Jon Sparkes, the representative of Mencap.

I am really pleased that my hon. Friend has worked so hard to ensure that the voices of disabled people are integrated across a number of the panels that we will see over the next two days, and the addition in her amendment is really helpful. I commend her for it.

[Kit Malthouse]

I, too, support the amendment proposed by the hon. Member for Spen Valley, and in particular the addition of Jane Monckton-Smith. I have read her book; it is definitely worth a read and is pretty alarming. I will address why I do not think the Committee should support the amendment to the amendment tabled to add other witnesses.

Jane Monckton-Smith has done a huge amount of research in the area, and as well as being an academic who specialises in coercion and femicide—and the impact that coercion has on femicide—she is a former police officer, so has significant frontline experience. As part of her research she will have spoken with and interacted with many of the groups that the hon. Member for Bradford West is proposing to include—although maybe not specifically. I would prefer it if we stuck with the list that the hon. Member for Spen Valley has put forward, and not add the additional witnesses proposed.

[Naz Shah]

There is nothing in my amendment that suggests Professor Monckton-Smith is not capable in her expertise. I am asking for other expertise to be brought to the table. Yes, there is the argument that people can submit written evidence—but so could every witness we have heard from today, and that we will hear from tomorrow and the day after. If that is the yardstick, is this just a tokenistic exercise? I would argue that for women in particular, who are the victims of domestic abuse—

[Dr Tidball]

I note that Laura Hoyano, who is giving evidence on Thursday, is a domestic abuse barrister. She has also been involved in inquiries on child sexual abuse, and has a great range of experience in that area. She will bring that to the table as a practising barrister working closely on such cases.

Child Arrangements: Presumption of Parental Involvement

Marie Tidball Excerpts

Wednesday 22nd January 2025 Westminster Hall

[Matt Western (in the Chair)]

I will call Dr Marie Tidball to move the motion, and I will then call the Minister to respond. There will not be an opportunity for the Member in charge to wind up, as is the convention for 30-minute debates.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

I beg to move,

That this House has considered the presumption of parental involvement in child arrangements.

It is a pleasure to serve under your chairship, Mr Western. There must be urgent reform of the presumption of parental involvement in child arrangements, known in law as presumption of contact, on the basis of evidence and principle, and to ensure that children’s voices are at the heart of our family courts.

The de facto common law principle of presumption of contact was legislated for in the Children and Families Act 2014, which inserted sections 1(2A) and (2B) into the Children Act 1989. That legal principle means that parents should always be given contact with their children, even in circumstances where there is a known domestic abuser.

[Jim Shannon (Strangford) (DUP)]

I commend the hon. Lady for raising this massive issue—well done for bringing it forward. In the world we live in, it is always the most innocent—the children—who suffer the greatest in a family breakdown. Does she agree that we must do more to ensure that, where there are doubts about safety, we should utilise supervised parental visits? Getting this right is an essential part of the battle against violence against women and children.

[Dr Tidball]

I certainly agree. To illustrate why, I want hon. Members to imagine a school night with a child being repeatedly asked by his father if he had completed his homework. The child replied in an exasperated tone, “Yes.” His dad stepped towards him with his fists ready to punch him. The boy’s mum stepped into the space between the fist and her son, and pushed him out of its way. The full force of that fist hit her so hard that she was spun round and fell down the stairs, bruising her arms, legs and back. From the top of the stairs, the child’s father shouted to his son, “Look what you made me do.” Imagine the same boy being driven to tears after his father made his brother eat peas until he was sick. The boy’s mother left her husband, taking the children with her.

Imagine a scene, six months later, where the father barricaded a Children and Family Court Advisory and Support Service officer in her office for 15 minutes. Social services were aware that that same father had made statements that he was capable of killing. Then imagine that, despite knowing all that, a family court permitted the father of those two boys five hours’ unsupervised contact per week. Claire Throssell, my constituent, does not need to imagine that nightmare. She and her two sons, Jack and Paul Sykes, lived it.

[Steve Witherden (Montgomeryshire and Glyndŵr) (Lab)]

Women’s Aid highlights that the pro-contact culture in family courts can force children into contact with abusive parents, sometimes against their will. Does my hon. Friend agree that it is crucial that family justice agencies recognise children as victims in their own right, as outlined in the Domestic Abuse Act 2021, to prioritise their welfare and, most importantly, save lives?

[Dr Tidball]

I do indeed, and I will return to that point later, not least because Jack and Paul Sykes told their social workers that they were scared of their dad. The youngest told them that he was “pure nasty”. Their secondary school was so concerned about the domestic abuse at home that it also alerted social services. Yet, on a two-hour contact visit permitted by a family court and allowed to go ahead by that same CAFCASS officer, Jack and Paul were locked in the attic by their father. Using gasoline, their dad then set multiple fires alight across their home. Paul, aged nine, died at the scene after his elder brother tried to save him. Jack, aged just 12, died later in hospital. The father also killed himself in the blaze.

Jack and Paul Sykes were supposed to return to their mother Claire that night. Instead, the boys died at the hands of a known domestic abuser. Their voices were not heard by social services, nor by the court. CAFCASS never heard their voices either. In fact, the day that Jack was supposed to speak to CAFCASS for a welfare assessment was the same day Claire cradled him in her arms as he died. The only time Jack’s voice was heard was when he was held in the fireman’s arms as he used the last of his strength to say, “My dad did this and he did it on purpose.”

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

The hon. Member is making an immensely powerful argument; that is a tragic tale. Does she agree that, as well as domestic abuse being taken into account, perpetrators of child sexual abuse should be taken into account in relation to parental involvement? I support the campaign of my constituent, Bethan Parkinson. Amending Jade’s law to that effect, to include domestic abuse and child sexual abuse, would be a useful step forward.

[Dr Tidball]

I do agree. I will discuss further proposals later in my speech. Jack and Paul would never have been in the reach of a known domestic abuser, were it not for the presumption of contact. Although schools have a statutory responsibility to report suspected incidents of domestic abuse, in contrast the presumption does not put the children of known domestic abusers first.

Ten years on, this place must hear Jack’s and Paul’s voices reverberate loud and clear, because tragically their voices are not alone. Women’s Aid found evidence of 48 child deaths at the hands of a known domestic abuser that took place following a permitted contact visit between 1994 and 2015. The Domestic Abuse Act, as my hon. Friend the Member for Montgomeryshire and Glyndŵr (Steve Witherden) mentioned, recognises that children are victims of domestic abuse in their own right. Child contact is a known risk indicator for domestic homicide, yet we still do not know the true scale of the problem.

The vast majority of court reports are not published, with only 10% of rulings coming to light. Only last month, the sentencing of Sara Sharif’s known domestically abusive father and stepmother for her murder showed all of us that action is urgently needed to change the law. Her life must not be forgotten.

[Mr Will Forster (Woking) (LD)]

As the MP for Sara Sharif, I am very thankful that the hon. Lady has raised her case. As she knows, I called for an immediate safeguarding review, to understand the reasoning. However, it appears that the perverse incentive for parental contact, with Sara’s father being given custody, contributed to her death. Does the hon. Lady agree that family courts and that perverse incentive need to be changed?

[Dr Tidball]

I absolutely do agree and will return to my proposals for reform later.

[Helen Hayes (Dulwich and West Norwood) (Lab)]

My hon. Friend is making an immensely powerful speech. It was extremely moving yesterday for the Education Committee to hear directly from my hon. Friend’s constituent, Claire Throssell. Claire’s work, in the context of her unbearably painful experience, is deeply inspiring, and I pay tribute to her.

We heard from her how problems in the family courts, including but not limited to the presumption of contact, have knock-on consequences for the wider work of child protection. Will my hon. Friend join me in calling on the Minister to ensure that there is strong, joined-up and effective working between her Department and the Department for Education so that we make sure that everyone who has a role in the protection of children is doing the most effective work possible?

[Dr Tidball]

I agree. We have said that we will take a mission-centred approach in Government, particularly to halve violence against women and girls, and I will return to that point. As a reference for Hansard, I mention that Claire Throssell MBE is with us in this Chamber today.

[Rachael Maskell (York Central) (Lab/Co-op)]

My hon. Friend is making the most powerful of speeches. We need joining up with the police service. My constituent fears every day that her children are in contact with their father. It is really important that we look at the thresholds, particularly with the Crown Prosecution Service, for prosecuting cases.

[Dr Tidball]

I agree. As someone who has worked in criminology and criminal justice for over a decade, I think the need for us to move beyond siloed working can be no more important than it is in these sorts of cases.

Just yesterday, we learned that the man Kiena Dawes named as her killer when she committed suicide wants to launch a custody battle over their daughter, saying that

“I’m coming to get you baby girl”.

This man has been jailed for six and a half years for assault of and controlling behaviour towards Kiena. Our current law would allow this person to have unsupervised contact with their child.

[Emily Darlington (Milton Keynes Central) (Lab)]

I thank my hon. Friend for securing such an important debate and for making such a powerful speech. Does she agree that the visitation presumption, custody presumption and all these sorts of things that happen in family law courts are a continuing perpetration of the domestic abuse that the women and mothers were fleeing in the first place? I will keep this case anonymous, but in my constituency I was meant to meet a woman on Saturday. The handling of the handover of the children on Friday had been so abusive and painful for her that she had to cancel her appointment with me because she was in hospital with heart palpitations. Can my hon. Friend address how we can ensure in the future that the presumption in the court service takes into account that this is continuing domestic abuse for both the mother and the children?

[Dr Tidball]

Absolutely. I will return to this later, but the harm report makes quite clear the re-traumatisation of both children and parental victims of domestic abuse that comes with repeated attempts at contact and the presumption that is currently in place. The consequence of that is a generation of lost voices like Jack and Paul Sykes and Sara Sharif, but there is no definitive way of knowing how many parents whose partner or spouse is a known domestic abuser have been persuaded into some form of shared care because of the presumption.

The harm report, published in 2020 by the Ministry of Justice’s expert panel on harm, found that presumption of contact must be reviewed urgently, because the principle

“put a misplaced emphasis on the child’s right to a relationship with both parents…above the child’s welfare and right to be safe from abuse and its effects”.

[Alison Hume (Scarborough and Whitby) (Lab)]

I congratulate my hon. Friend on securing this important debate. I pay tribute to the incredible campaigning work of Claire Throssell MBE in the face of unimaginable grief. My hon. Friend mentioned the Ministry of Justice report, which highlighted that the culture of the family courts and professionals involved in cases showed a systematic disbelief of abuse and the acceptance of counter-allegations—for example, parental alienation—without robust scrutiny. Does she agree that the report, which was left to gather dust, must be dusted down and put into immediate effect?

[Dr Tidball]

I absolutely do. Furthermore, in response to my hon. Friend’s important point, the report specifically stated:

“To the extent that the courts’ pro-contact culture operates as a barrier to addressing domestic abuse, it serves to reinforce that culture.”

Indeed, section 6 of the report laid bare that children’s voices are being “muted or unheard” in domestic abuse cases because of the pro-contact culture.

[Jess Asato]

One of my constituents, a domestic abuse survivor, has had all contact with her children removed, as well as her domestic abuse claim rejected without evidence. She has now had to pay not just for contact visits but monthly drug tests, when her drug use was not proven at all, making it completely unaffordable for her to see her children. Does my hon. Friend agree that it is past time that we stopped our family courts from being used as a tool of abuse against survivors of domestic abuse and sexual violence?

--- Later in debate ---

[Dr Tidball]

I do agree. Our court system should be one where justice is achieved for vulnerable victims of abuse, rather than an additional and secondary means of victimising them.

[Alison Bennett (Mid Sussex) (LD)]

I thank the hon. Member for giving way—she has been very generous in doing so in this short but important debate. A constituent of mine, who will remain anonymous, has undergone domestic abuse that the family courts process not only allowed to continue as economic abuse, but facilitated. With family courts still failing to ensure the safety of child victims, and given that around 60% of cases in the family courts involve domestic abuse, does the hon. Member agree that much more needs to be done to protect families from being re-victimised and traumatised via the very process that should be delivering them justice?

[Dr Tidball]

I agree, and nowhere is that clearer than in the cases of my constituent’s sons, Jack and Paul. Not only was their father known to be abusive, but the boys did not want to see him—all while he was demanding 50:50 contact in the family courts. Claire promised her sons that she would not rest until the law was changed to prevent more children from dying like they did. When I was elected last year, I promised to help her.

Labour’s important mission to halve violence against women and girls in a decade will require a national effort, and require us to use every tool available to target perpetrators and address the root causes of abuse and violence. Last week’s Second Reading of the landmark Children’s Wellbeing and Schools Bill marked a transformative change to child protection in education, and now we need to hold family courts to the same standard by repealing section 1(2A) of the Children Act 1989.

[Dr Lauren Sullivan (Gravesham) (Lab)]

I thank my hon. Friend for securing this incredibly important debate, and I second many of the comments she has made in her incredible speech. Does she agree that the cases of children with special educational needs who cannot express their feelings and fears must be taken into account, and that the presumption of contact must be stopped in those cases where there is live domestic abuse?

[Dr Tidball]

I do agree, and those factors have a cumulative, additive effect on those young people, silencing their voices even more so than those of other victims. That is one of the reasons why the harm report was clear that

“the presumption should not remain in its present form”

and recommended that it be reviewed

“urgently in order to address its detrimental effects.”

Today we are focusing on presumption of contact, but there is much more that could be done to make the family court system child-centric. We can be bolder by changing the language in the Children Act 1989 to say explicitly that a presumption of contact should not be given to a known domestically abusive parent. Further, protections could be strengthened by incorporating practice direction 12J in primary legislation. We also need to ensure that no interim contact takes place before assessments are fully completed by CAFCASS. Additionally, we must legally recognise children as victims of financial abuse under the Domestic Abuse Act 2021. Shockingly, there is currently no definition of rape or consent in the family court system.

[Natalie Fleet (Bolsover) (Lab)]

I thank my hon. Friend for raising this very important issue. Everybody in this room wants children to be born with two loving parents, but that is not possible for everybody, and it is definitely not a luxury that every child enjoys. Currently, when a woman is raped in this country, and she gives birth as a result, the rapist can apply for access to the child throughout their life. A woman in my constituency, and women beyond, talked to me about the trauma inflicted on them not only at the point of the attack but as they raise their child. The law now acknowledges that children born from rape are victims of crime, but it is vital that perpetrators are not given access to those children, continuing their unwanted presence in the victim’s life. The harm that that access can cause must be recognised to protect the young people and their mothers from violent offenders. Does my hon. Friend agree that we need a change to the law?

[Dr Tidball]

I do agree, and I thank my hon. Friend for her powerful statement. That is why we must urgently spell this issue out in primary legislation, alongside having a more tightly drawn definition of domestic abuse towards children in section 3 of the 2021 Act.

Over four years have passed since the UK Government launched a review of the presumption, as recommended by the harm report. The Conservative Government made no response, but now there is an opportunity for our new Government to take action, look at what other countries are doing and embed child-centred approaches in the family courts. Australia has repealed a similar piece of legislation, and the US is rolling out a law to incentivise states to ensure that their child custody laws properly protect children.

We must show leadership and be a beacon of light for children’s rights around the world by changing the law so that family courts prioritise children’s welfare and safety over the privilege of parental contact rights. Our Government must do what the previous Conservative Government failed to do, by taking a child-centred approach and changing the law on presumption of contact.

No more towns such as mine should be left to grieve. No more parents should have to make the ultimate sacrifice of the life sentence of losing a child at the hands of an abusive spouse or partner. No more parents should ever have to send their child on a court-ordered visit and hold them tightly in their arms hours later as they die. This Government must now act to save lives for generations to come by ending contact at any cost.

Let us not just imagine a world where the voices of children are put at the heart of our family court system, where children such as Jack and Paul are listened to, not ignored, where children have a childhood free of fear and oppression, and where children such as Jack and Paul live the lives they deserved to live. Minister, I urge you to do all you can to make that world a reality.

Terminally Ill Adults (End of Life) Bill

Marie Tidball Excerpts

2nd reading
Friday 29th November 2024 Commons Chamber

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

Today’s decision has been one of the hardest that I have had to make. In my career in disability law and policy, I chose not to focus on debates about whether disabled people should be born or whether we should die. Instead, I focused on enabling disabled people to live better, more fulfilling lives.

Today, I find myself voting in a way that I thought I never would. I will vote in favour of moving the Bill to the next stage of the legislative process. That has been a difficult journey for me. I have arrived here by looking at the evidence, reflecting on my own lived experience and listening to the many, many constituents who have written to me in support of the Bill, sharing their compelling and tragic stories of death—death which did not come with dignity or respect.

In reflecting on my own life, one moment from my childhood stood out. When I was six years old, I had major surgery on my hips. I was in body plaster from my chest to my ankles, and in so much pain and requiring so much morphine that my skin began to itch. I remember vividly laying in a hospital bed in Sheffield Children’s hospital and saying to my parents, “I want to die. Please let me die.” I needed to escape from the body I was inhabiting. That moment has come back to me all these years later. That moment made it clear to me that if the Bill was about intolerable suffering, I would not vote for it.

I have subsequently had a good life, a fulfilling life, a life where I have worked towards ensuring disabled people are valued by our society. But that moment also gave me a glimpse of how I would want to live my death: just as I have lived my life, empowered by choices available to me; living that death with dignity and respect, and having the comfort of knowing that I might have control over that very difficult time. For so often, control is taken away from disabled people in all sorts of circumstances.

In order to ensure that there is compassionate choice at the end of life, it is right that the Bill is tightly drawn around the final stage of terminal illness for adults and includes the strongest safeguards. The choice of assisted dying as one option for adults when facing six months’ terminal illness must be set alongside the choice of receiving the best possible palliative and end of life care, or it is no choice at all.

Having analysed the Bill closely, therefore, there are changes I would want to see in Committee to strengthen those options and ensure the way that choice is presented by medical practitioners is always in the round. People deserve dignity in death, and for those who do not choose to end their lives in this way, they and their loved ones should feel reassured and safe in the knowledge they will receive the very best of care. I would also want to ensure that the final stages of the Bill properly define “dishonesty”, “coercion” and “pressure”. I think it is necessary to embed mandatory language in the Bill around the need for a code of practice on palliative care, as well as improving the regulations on training for medical practitioners. I trust my hon. Friend the Member for Spen Valley (Kim Leadbeater) to champion those amendments and to continue to diligently listen to Members, as she has throughout this process.

However people vote today in this House—a decision of conscience—it is incumbent on all of us to commit to improve palliative, end of life and adult social care. It must be the start of the work that we do in this place to ensure the very highest standards in these areas. That will be a very great legacy indeed: giving people the dignity they need in the moment of death. For many of us across the Chamber, considering these issues has been extremely hard and upsetting. We have had to go to the very depths of our selves to understand what choice we will make today. While we may enter different voting Lobbies, we leave this Chamber shoulder to shoulder. I know we will all work in our own ways to make systemic change to improve the lives of our constituents, and people up and down this country.

[Several hon. Members rose—]

Oral Answers to Questions

Marie Tidball Excerpts

Tuesday 10th September 2024 Commons Chamber

[Dan Aldridge (Weston-super-Mare) (Lab)]

7. What steps her Department is taking to support victims of rape and sexual violence.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

21. What steps her Department is taking to support victims of rape and sexual violence.

[Anna Dixon (Shipley) (Lab)]

23. What steps her Department is taking to support victims of rape and sexual violence.

--- Later in debate ---

[Alex Davies-Jones]

The case in France is truly shocking, and we have all looked on in horror as the details have unfolded. I commend the victim for her bravery in coming forward and making it public so that we can see the full aspects of the trial. Spiking is a despicable crime. We have committed to introduce a new criminal offence of spiking and we are considering how best to implement it. To be clear, in England and Wales, having sex with a person who cannot consent is rape, and spiking with intent to engage in sexual activity is a specific offence, with a maximum penalty of 10 years in prison.

[Dr Tidball]

Ten years ago, Jack and Paul Sykes, aged 12 and nine respectively, tragically lost their lives at the hands of their abusive father, who set their house on fire. Their mother, my constituent Claire Throssell, is a powerful campaigner against presumptive contact—a legal principle that allowed a known domestic abuser to access Jack and Paul. Will the Minister meet Claire and me to discuss how we can properly protect children from domestic abuse in our family court system?

[Alex Davies-Jones]

I thank my hon. Friend for that really important question. Claire’s tireless campaigning for families and children experiencing domestic abuse is inspirational, and my thoughts are with her and the whole community as the anniversary comes closer next month.

Both the criminal and family justice systems will play an essential role in delivering our commitment to halve violence against women and girls. The family court system must protect child victims of domestic abuse, and the new pathfinder courts provide more support for domestic abuse agencies and ensure that the child’s welfare and voice is at the centre of proceedings from the outset. The Government and I take the need to respond robustly to perpetrators within the family courts very seriously. The previous Government were reviewing the presumption of parental involvement. We are considering the findings and will respond in due course.