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

Naz Shah Excerpts

Committee stage
Tuesday 11th February 2025 Public Bill Committees

[The Chair]

It might be helpful for the Committee to know that I was bequeathed a list by Ms McVey. I understand that those wishing to speak are the hon. Member for Bradford West, the Minister, and the promoter of the Bill, the hon. Member for Spen Valley. I shall then call the hon. Member for Richmond Park, who tabled the amendment, to wind up the debate.

If anybody else wishes to speak, please indicate in the normal fashion by rising. I will call the hon. Member for Broxtowe if she wishes to speak, but I need to know whether she wants to. If she stands up at the right time, that will be fine. Please be aware that once I have called the mover of the amendment to wind up, there will be no further debate on the subject. That really will be the end of the debate.

[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.

[Rebecca Paul (Reigate) (Con)]

A very good point has been made about looking at the Mental Capacity Act at different times during the process. However, it does not matter how many times a bad process is applied; if the process is insufficient and does not have a high enough safeguard, it will never give the right answer. We need to ensure that we have the right test. It is absolutely right that we apply it multiple times, but does the hon. Lady agree that we need to consider the quality of what we are applying in the first place?

[Naz Shah]

I completely agree.

Professor Owen also said:

“I have had over 20 years of research interest in mental capacity. When I look at the issues relating to mental capacity with the Bill…the other important point to understand is that they are very novel. We are in uncharted territory with respect to mental capacity, which is very much at the hub of the Bill.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q286.]

Like my hon. Friend the Member for Bexleyheath and Crayford, I am certainly not a doctor, although I have experience in the NHS, but I do know that we do not have psychiatric experts or experts on capacity in this Committee.

[Sean Woodcock (Banbury) (Lab)]

Earlier, the hon. Member for Solihull West and Shirley made a point about public confidence in the Bill. In oral evidence, the representatives from the Royal College of Psychiatrists—we nearly did not hear from them; we had a vote about whether we would, and they were added later—made it clear that they have severe doubts about applying the Mental Capacity Act to the Bill. Does my hon. Friend share those concerns?

[Naz Shah]

I absolutely share those concerns, which is why I pressed the issue to a vote. As I have explained to my hon. Friend the Member for Spen Valley, I am grateful that the Royal College of Psychiatrists gave evidence. It said that the Mental Capacity Act

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

In oral evidence, Professor Jamilla Hussain, an expert in palliative care and health inequalities, highlighted an inequity in assessment using the Mental Capacity Act. She said that she does not think that

“the Mental Capacity Act and safeguarding training are fit for purpose. For something like assisted dying, we need a higher bar—we need to reduce the variability in practice.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 199, Q260.]

My hon. Friend the Member for Penistone and Stocksbridge mentioned the process in the Bill being repeated eight times, but I want to bring us back to the issue of capacity in relation to coercion. The Royal College of Psychiatrists said:

“In any assessment of capacity, we must also consider whether a person is making the request because they consider that they are a burden or because they do not consider that they have access to effective treatments or good-quality palliative care. At a population level, palliative care, social care and mental health service provision may impact the demand”

for an assisted dying service. Although I appreciate that we will debate this in greater detail later, on clauses relating to coercion, it relates to the issue of capacity. In her evidence to the Committee, Chelsea Roff, a specialist in eating disorders, said:

“One thing I would like to highlight in our study is that all 60 people who died”

by assisted dying after suffering from anorexia, who were mostly young women,

“were found to have mental capacity to make the decision to end their life, so I worry that mental capacity will not be an effective safeguard to prevent people with eating disorders from qualifying under the Bill.

I also note that Oregon and California, where I am from and where we have found cases, have an additional safeguard to mental capacity. That is, if there are any indications that the person might have a mental disorder, that person must be referred for a mental health assessment.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 141, Q177.]

[Tom Gordon (Harrogate and Knaresborough) (LD)]

I completely agree with the point the hon. Lady is making about mental capacity applying to eating disorders, but would that not be better debated in relation to defining an eating disorder as a terminal illness, rather than in regard to mental capacity?

[Naz Shah]

I will be speaking to the issue in relation to terminal illness, because it relates to my amendment in another grouping. The reason I am making this point now is that it also impacts on capacity. When we are assessing capacity—again, this talks to the point—the truth is that nobody in this Bill Committee or otherwise can tell me that the Mental Capacity Act has been applied to the question, “Would you like assisted dying?”

[Dr Simon Opher (Stroud) (Lab)]

First, it is impossible to argue that, because we have never been able to have assisted dying in this country, so it is a spurious argument. However, I do not quite understand the argument here. You are suggesting—

[Dr Opher]

I am sorry. My hon. Friend is suggesting that a system that has been tried and tested in court and by clinicians throughout the country over the last 20 years is not preferrable to a new system that is completely untried. I thought this Committee was about making these things safe for patients, and I cannot see how the amendment makes them more safe.

[Naz Shah]

My hon. Friend speaks to my point and the idea that the Act has been tried and tested. When we are talking about coercion, and capacity in relation to coercion, I come back to the point that we in this House have only just, in 2015 and 2021, made legislation using the word “coercion”. It was not recognised before. On the idea that this has been tried and tested for the last 20 years, I simply beg to differ.

Coercion does come into the issue of capacity. We are looking at the Mental Capacity Act, which was introduced in 2005 and is 20 years old. These conversations were not being had in Parliament at that time; the vocabulary did not include “coercion” or “undue influence”, even at the time the Mental Capacity Act was passed by this House. Again, that speaks to my point: are we really saying that we want to test the Mental Capacity Act on something that has never been done before?

[Jake Richards (Rother Valley) (Lab)]

I am trying to understand my hon. Friend’s argument. In terms of a person choosing to ask their doctor to turn off their life support machine, as opposed to someone offering a person drugs to self-administer, I understand that there are differences in terms of public policy and that, for some, there are differences morally. However, in terms of capacity—the decision as to whether that person can make that choice themselves—why is it different?

[Naz Shah]

The hon. Member for East Wiltshire answered that question eloquently earlier. Although the outcome is the same, we are asking two different questions. The question is not about turning off and unplugging a machine; it is about whether someone will take drugs to end their life.

[Jack Abbott (Ipswich) (Lab/Co-op)]

To follow the basic premise of your argument—

[Jack Abbott]

It is not your argument, Sir Roger; it is my hon. Friend’s argument. I apologise.

To follow the basic premise of my hon. Friend’s argument, she is saying that the Mental Capacity Act is not tried and tested for what we are discussing. However, by definition, neither is this amendment; if anything, it is even worse, because words such as “ability”, which we are discussing here, have absolutely no basis, as was admitted by the hon. Member for East Wiltshire. On that basic premise, my hon. Friend will not agree with any amendment that is tabled today, because none of them is tried and tested. Is that correct?

[Naz Shah]

My hon. Friend is not wrong, in so far as there can be two truths. There is a truth, for me, that the Mental Capacity Act does not deliver what we need it to deliver, and that is the concern we have heard from people who have given us evidence. We have not talked about the word “ability”—as hon. Members have pointed out, it is not set out in law—so there is a conversation to be had.

As my hon. Friend the Member for Spen Valley, the promoter of the Bill, clearly stated, this is about strengthening the Bill and bringing the best Bill to Parliament to give people a choice. That is what this is about.

[Danny Kruger]

The hon. Member is making such an important speech, and I am very grateful to her. This is a crucial discussion. The hon. Member for Ipswich suggested that the amendment would make things worse because it would apply a new test.

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[Danny Kruger]

I will conclude my intervention very quickly. I fear that I may have mischaracterised the hon. Member for Bradford West when I said that she is opposed to the Bill in principle; in fact, I do not think that is the case. I am not sure what the difference is between opposition in principle and opposition to the detail, but I recognise that she is certainly not opposed to the Bill in principle, so I apologise to her.

Does the hon. Lady agree that the Bill would take a great leap in the dark by legalising assisted dying? At the moment, that leap lands on the uneven ground of the Mental Capacity Act. Does she agree that, if we want to do this properly, we should prepare a solid, cushioned, safe landing space that is appropriate for the Bill, rather than the inappropriate mess that the Mental Capacity Act would induce?

[Naz Shah]

I am grateful to the hon. Gentleman for his correction. To clarify, I do not think anybody in this House disagrees in principle with the idea of not letting people suffer. I am very much about principle, and I came to this Committee very much in that spirit. When I was asked to join this Committee, I had to sleep on it, and I now realise why.

I am grateful for the interventions from my hon. Friends the Members for Rother Valley and for Ipswich. There are a couple of things that are important for us to understand. The Mental Capacity Act has not been tried in any of the other jurisdictions across the world on which we are basing this law, so we cannot make a comparison.

On the issue of whether it is either/or—whether it is the Mental Capacity Act or the word “ability”—the Secretary of State has the power to change that. If we are to be true to the spirit in which we have come to this debate to make the Bill as safe as possible, given that so many psychiatrists and experts have said that they are not convinced that the Mental Capacity Act is fit for purpose in this regard, surely it is incumbent on us to make that case.

[Jack Abbott]

My hon. Friend said that the Mental Capacity Act is not tried and tested, and I was challenging the premise that we should apply a concept that is not tried and tested in this or any other country. She is saying, “I can’t support the Mental Capacity Act in its current form because it is not tried and tested,” but, following that argument, she would presumably not support this amendment or any others because what they propose is also not tried and tested.

[Naz Shah]

This amendment is an attempt to have that conversation and to strengthen the concepts that we are debating. That is the whole point of the Committee. As my hon. Friend the Member for Spen Valley said, there is no point in having witnesses if we do not listen to what they say. This is what the witnesses said.

My hon. Friend the Member for Ipswich makes a valid point. He asks whether I would, by that definition, support this amendment. I support it because it has led to a debate that we have had all morning, and that we are carrying on into the afternoon. As it is, the Bill does not give me confidence, whether it is due to the use of the Mental Capacity Act or the definition of “ability”. I feel that it needs to go much further, perhaps through the Secretary of State tabling another amendment at a later point.

[Sojan Joseph (Ashford) (Lab)]

We heard many pieces of oral evidence from expert psychiatrists, including from the Royal College of Psychiatrists, saying that the Mental Capacity Act is not fit for the Bill. Even if we use the Act, many conditions such as depression or delirium —or the effects of some medication—can impact on people’s decision making. It is worrying when someone like Dr Rachel Clarke, who has extensive experience in the Mental Capacity Act and has been training medical students and nurses, says of those mental capacity assessments that

“it is often the case that they are…poorly conducted.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 71, Q85.]

Would my hon. Friend agree that rather than use the Mental Capacity Act, the “ability” amendment tabled by the hon. Member for Richmond Park would be more suitable and make the Bill safer?

[Naz Shah]

I know that my hon. Friend comes from a mental health background and has worked as a professional in this area. I absolutely agree that we need to strengthen the Bill, which is why I will support the amendment. I feel that we must strengthen it because the Secretary of State can make some interventions.

[Kit Malthouse]

I want to clarify what the Royal College of Psychiatrists actually said, because I realise that the hon. Member is relying a lot on that evidence. In an exchange with me in their oral evidence, the doctor from the royal college said that if I were to equate the decision to refuse treatment with the decision to request a hastening of my death in extremis as qualitatively the same, and of the same seriousness and outcome, then the Mental Capacity Act may well be appropriate for the decision. The difference was information. We would be relying on the notion of informed consent, and therefore on the information that the person was being given about the consequences of that decision.

We will be debating later in Committee the information that is given to a person to form that decision, but I do not think it is quite the case that the psychiatrist said that it could not be or was not fit for purpose. Actually, they said that it may well be sufficient if we equate those two decisions—and many of us do.

[Naz Shah]

I know the right hon. Member speaks with a huge amount of experience. I am very new to the subject, but I know that the evidence from the psychiatrist was very certain—not “may well be”. The language that they used, which I referred to earlier, was very clear that it is not a good standard. They said:

“We are in uncharted territory with respect to mental capacity, which is very much at the hub of the Bill”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q286.]

and there is an inequity in assessment using the Mental Capacity Act. There were other categorical statements made—there was no “maybe” in there. For me, a “maybe” does not cut it at this level; the test should be much higher in order to take the option of assisted death.

[Kit Malthouse]

If the hon. Lady goes to column 277 of Hansard from that oral evidence session, Dr Price said:

“You are equating a refusal of treatment, in capacity terms, to hastening death by assisted dying. If those two things are equated, in terms of the gravity and the quality of the decision, the Mental Capacity Act may well be sufficient, but there are differences. There are differences in the information that the person would need and what they would need to understand.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 277, Q361.]

It is clear what Dr Price said. To be honest, the question was partly prompted as we had become a little confused, because the whole practice of psychiatry in the UK is founded on the Act at the moment. She seemed to be implying that somehow the entire practice of psychiatry in the UK was on unstable ground—and I do not think anybody is claiming that.

[Danny Kruger]

rose—

[Naz Shah]

I will take this intervention and then address both points.

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[Naz Shah]

I think that the hon. Member’s intervention responds to some of the points of the right hon. Member for North West Hampshire.

We have heard a lot about the equivalence of endings versus decisions. The example given earlier, of somebody pulling the plug because they did not want treatment any more, happens in very few cases. From my experience of working in the NHS and with disabled people, when people are at the end of life, their cases sometimes do end up in court in front of a judge. That may be because there is a difference of opinion—be it medical, between the family, to do with capacity, or whatever the issue is. We are removing that. My understanding is that the promoter of the Bill is removing the need for the judge and is proposing a panel, which is what I read in The Guardian earlier.

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

I wonder whether the hon. Lady can help me with an area of her argument that I am conflicted by. I have heard the points made by my hon. Friend the Member for East Wiltshire, drawing the distinction between those who refuse treatment for a condition that is then terminal and those actively seeking assistance in ending their life. There is a third group who choose to refuse food and nutrition. That is not a treatment in the conventional sense, to combat a disease process, that is normal sustenance that would keep someone alive. Given that the MCA applies to that decision and someone’s ability to refuse on that basis, how does that interplay with the amendment as proposed?

[Naz Shah]

I have tabled an amendment to a later clause that talks specifically to that. The word “only” needs to be removed. We have seen this in Oregon, which I will come to later. We heard in the oral evidence that 60 women assessed to have capacity died because they had anorexia.

[Kim Leadbeater]

In respect of those numbers, it is important to be really clear that the vast majority of those circumstances were in the Netherlands and in other jurisdictions that have a much broader set of eligibility criteria than the Bill. We are talking about a very small number of cases in jurisdictions with a similar set of criteria to ours. It is important to make that point.

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[Naz Shah]

My understanding, which comes from Chelsea Roff, was that that happened specifically in places such as Oregon and California, but I am happy to revisit that. Coming back to the point, we must ensure that people with an eating disorder such as anorexia or a mental health condition will be excluded from the Bill. That will be my second amendment. I do not know if that answers the question.

[Dr Shastri-Hurst]

It may well have been the way that I phrased it, but the point I was seeking to make was that the Mental Capacity Act, as it currently operates, can be used for those patients who choose to refuse food and water. My view would be that that is a distinct group of people who are refusing active treatment. Given the hon. Lady’s distinction between those who refuse treatment in the conventional sense and those who are seeking assisted dying and her view that for the latter group the MCA is not the appropriate mechanism, is she saying that for that group of individuals who refuse food and water—effectively choosing to end their life through starvation—the MCA is not an appropriate mechanism to assess their capacity?

[Naz Shah]

I thank the hon. Member for his intervention, but we are not here legislating on anorexia; we are here legislating on the option of assisted death. I am trying to understand where he is going with that argument. It genuinely does not make sense to me.

[Kim Leadbeater]

I do not think that the hon. Member for Solihull West and Shirley is saying that this is about people with eating disorders or anorexia; he is asking about people who are terminally ill who stop eating and drinking. They do that as a course of action to essentially end their own lives. It does happen on a fairly regular basis. We have had testimonies from families who have watched loved ones essentially starve themselves to death. It is different from having an eating disorder or being anorexic.

[Naz Shah]

My understanding, when it concerns eating disorders and anorexia—let me get this right: are hon. Members trying to equate new clause 1 with that condition?

[Rebecca Paul]

I think that one of the points being made is the difference between something that is active and something that is passive—for example, someone who chooses not to take that next level of chemotherapy because they have had enough, they have gone through a lot of it or it was painful, and chooses, in the example the hon. Member for Spen Valley just gave, not to eat and drink. That is one case, but it is very different from someone choosing to end their own life, which requires active participation and involves other people too. That would be the key difference, which I wonder if the Member for Bradford West agrees with.

[Naz Shah]

I do agree. I also want to push back on the idea that it happens fairly regularly. I would welcome my hon. Friend the Member for Spen Valley giving us the evidence of where it says that, because that is not my recollection of the evidence we have gone through so far. I appreciate that we have not gone through all of it; there might be more that we have not seen.

[Sojan Joseph]

On a point of clarification, under the Mental Capacity Act, if somebody decided to stop eating and drinking, we would let them do it until they became unconscious, and then their best interests would come into effect. We would take them into treatment if there were a risk to their life. Would my hon. Friend agree that that needs to be clarified?

[Naz Shah]

This whole conversation has taught me that we are not on top of the Mental Capacity Act or the conversation about ability, which is why it is so important to have these conversations, even if it is just to try to get to the nub of the issue. Amendments that I will speak to later will clarify my position, but from the evidence I have heard, I will be supporting the amendment tabled by the hon. Member for Richmond Park. That is because the test needs to be much higher than the Mental Capacity Act on its own when it concerns the issue of choosing assisted dying. For that reason, I will support the amendment.

[Juliet Campbell]

I thank the Committee for allowing me to reiterate the importance of a stand-alone approach. The use of the Mental Capacity Act must be questioned, as the Act was never intended to legislate for assisted dying. Much of what has been said in favour of using the Mental Capacity Act has been about it being tried and tested, so people understand it and to use anything else would make life complicated for professionals who use it as part of their day-to-day activities in assessing capacity.

On the surface, those reasons do seem reasonable and make the Mental Capacity Act an easy option. If, however, the Act does not pass the threshold of meeting everyone’s needs, convenience should not be the deciding factor. Convenience cannot be considered a sufficient reason to use the Mental Capacity Act, as it is a fundamental element of the Bill. The Bill is in itself enough reason to have an alternative or stand-alone approach to determine an individual’s eligibility to be considered for an assisted death.

Capacity is a complicated issue and cannot be oversimplified for convenience. The MCA may be fit for its current purpose, but it is not fit for the purpose of the assisted dying Bill. I have spent more than 20 years working on the equalities agenda, and one of the things that I have learned—this has been a consistent shortfall—is that we try to address new challenges with old solutions, rather than trying to meet the needs of the people we intend to serve. That is the reason why I will be supporting the amendment.

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[Stephen Kinnock]

The fundamental position of the Government is that the Mental Capacity Act as it stands is a known quantity. It provides the legal base for a whole range of measures and interventions, and the Government’s view is that it would be an adequate legal base to operationalise the Bill should it receive Royal Assent. Our position on it goes no further than that; it is simply a matter of fact that there is a piece of legislation that is a known quantity.

[Naz Shah]

The Minister makes an important point. I just want to understand something. He speaks on behalf of the Government and says that the Mental Capacity Act is an adequate legal base as it stands. Perhaps the issue is just that I am new to the process—I am happy to be guided, Sir Roger—but we have not had an impact assessment. Normally, Bills do have impact assessments beforehand and the Government go out to consult; they have a consultation process. None of that has happened because the Bill is a private Member’s Bill. I am just trying to understand: is what has been said still true? How do the Government come to that conclusion without all those robust mechanisms that would normally go before a Government Bill?

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[Kim Leadbeater]

That is a point worth making, and something we will look at through the amendments that my hon. Friend has proposed. I am very happy to look at those, as I have already said, but the idea of creating a whole new concept of ability seems wholly unnecessary in the context of a piece of legislation that has stood the test of time for over 20 years.

I come back to training. Although the full details of the training programme that would accompany the Bill cannot be put on the face of the Bill, I have discussed the issue at length with officials in the Department of Health and I have included amendments to that effect. Amendments 186 and 198 specifically state that training must include assessing capacity and assessing whether a person has been coerced or pressured by any other person. Further comprehensive training will be included in regulations set out by the Secretary of State, and the chief medical officer is confident that that is the correct way to proceed.

Furthermore, as has been referred to, there are multiple opportunities within the process to assess capacity by a range of professionals. I have also tabled new clause 8, which would create a duty for the Secretary of State to consult before making regulations relating to training. Within that, there would be a duty to consult not only the Equality and Human Rights Commission, which is important, but persons with expertise in matters relating to whether persons have capacity and whether persons have been coerced.

[Naz Shah]

To go back to the point about multiple opportunities and capacity, my understanding from this morning’s Guardian is that an amendment has been tabled—it was mentioned earlier; I do not know whether others have had sight of it, but I certainly have not—on potentially having a panel instead of a judge. My hon. Friend the Member for Bexleyheath and Crayford has just asked a question, and my hon. Friend the Member for Spen Valley responded by saying that she would come back to it, but my concern is that we are looking at the clause now, and once we have discussed it there will be no going back to it. I am trying to understand at what stage in the process she will come back and fix it. If we are going to address it under clause 9, clause 8 or wherever, how will that impact on clause 1? How will it address the issues that we are debating right now?

[Kim Leadbeater]

At the moment, we are addressing the fitness for purpose of the Mental Capacity Act, but there are other amendments that will take on board some of my hon. Friend’s points, particularly about people with learning disabilities. I am very happy to look at that. I am working to table an amendment before the recess, to give the Committee an opportunity to look at it in great detail. My hon. Friend the Member for Bradford West is right that that would provide another opportunity for assessment of capacity with the involvement of psychiatrists and social workers, who have said that that is their expertise and what they excel in, and who feel that they have a valuable role to play in the process.

[Naz Shah]

At what stage will we know how the amendments that my hon. Friend proposes have an impact on clause 1? If we make amendments later in the Bill, how will that have an impact on the amendments that we have discussed this morning, in particular in relation to capacity?

[Kim Leadbeater]

Clause 1 is very specifically about the Mental Capacity Act, on which we should get a chance to vote this afternoon. Other amendments can be tabled ahead of Report, but the fitness for purpose of the Mental Capacity Act is a concept on which we will get a chance to vote this afternoon. Other things can be added to the Bill that would enhance other aspects, but the point that we have discussed this afternoon is about the fitness for purpose of the Act. There are different views on the Committee, which is understandable. I believe that using the well-established legal framework of the Mental Capacity Act, introducing gold-standard training and consulting experts in assessing capacity will mean that there is no need to develop a whole new framework around the concept of ability, particularly on the points made by my hon. Friend the Member for Penistone and Stocksbridge. I therefore do not support the amendments.

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There may be people out there who think that prisoners do not deserve it. That would be the flipside of the argument. I understand my hon. Friend is not making it; he wants to protect them because they are vulnerable. To me, however, that seems like a cruel and unusual punishment for people who are already serving time in prison, to whom we should not deny the same health-related services that everybody else receives. I will therefore oppose the amendments.

[Naz Shah]

I support the amendment for a number of reasons. I have a huge amount of experience of dealing with women, domestic violence and prisons. The first time I came to this House was to lobby the then Labour Home Secretary to reduce my mother’s tariff, because she served 14 years in prison. When my mother was in prison, I was left homeless, so I have experience of that as well. I have experience of, while I was homeless, attempting suicide on two occasions, and I ended up having my stomach pumped. I therefore speak with a reasonable amount of experience in dealing with this.

From a domestic violence point of view, which is why my mother killed an abusive partner, and having been a victim of domestic abuse, I also understand the vulnerabilities concerning women in particular—less so men, although I know the hon. Member for East Wiltshire has done a lot of work on that in his adult life. The majority of women who end up in prison—we have seen this from review of the courts, time and again—are victims of abuse, whether sexual, domestic or another kind. The majority of our women prisoners are in that position.

The suicide rate among the population in England and Wales is 11.4 per 100,000, but for prisoners, that goes up to 108 per 100,000, which is nearly 10 times as high. We also know from research that one third of female prisoners in England and Wales self-harm. We know from the Home Affairs Committee report in the last Parliament on health in the English prison system that standards of health deteriorated in recent years due to budget reduction, loss of prison officers, staff shortages and overcrowding. We know that the Government have had to bring forward early releases, because the prison system is not fit for purpose after the cutbacks of the last 14 years.

All this speaks to me of vulnerability. I hear the points that both the right hon. Member for North West Hampshire and the hon. Member for East Wiltshire have made that, in an ideal world, people should absolutely have equal access to healthcare, but the problem is that we are not in an ideal world. From my perspective, we have a prison system that has had to have emergency interventions since the Labour party came into government, because it is not fit for purpose.

From a healthcare perspective, going back to what Dr Jamilla said and the numerous bits of evidence we heard about health inequalities, I know from a place such as Bradford West that people from ethnic minority backgrounds have less trust in healthcare services. I know that we do not have equity in healthcare services. As a former NHS commissioner, I know that those health inequalities impact on quality of life and that it is a postcode lottery. I am thinking about New Hall women’s prison in Wakefield and Armley prison, which is near Bradford. I am not familiar with London prisons, but I imagine the vulnerability of the women at New Hall. This comes back to the conversation about capacity: by some definition, they might have capacity.

However, we also heard from eminent psychiatrists that when someone has a diagnosis, it impacts on their mental health. In this instance, we are talking about six months, which the right hon. Member for North West Hampshire referred to a number of times. In that six months, access to visitors might not come for another few weeks. A person might not even have a member of their family next to them when they get that diagnosis. They could well be innocent; they could well have been a victim of domestic violence and ended up in prison because they killed an abusive partner after years of abuse.

They could be in a number of situations, but the one thing I concur with is the amount of vulnerability here, in particular for women, which speaks to the issues of capacity and coercion. It speaks to all the things that we are debating here, which is why I support this amendment: it would protect those who are vulnerable. If there was a diagnosis, prison systems would kick in. If someone was given less than six months to live, they would invoke compassionate grounds to leave the prison system, but I would be really uncomfortable seeing anybody in prison being given the option without that comfort.

I cannot imagine being in the position of, say, my mum. I cannot imagine—I would not dare imagine; I do not think I could handle it—the idea of being taken away from my family and being incarcerated, rightfully or wrongfully, guilty or not guilty. I would be in a place, a system and an institution where, depending on which category of prison I was in, the institutional wraparound and the interventions are very different. It depends on the stage of the sentence that somebody is in. If they are in at stage 1 at a category A prison, there are much stricter rules and regulations. Imagine a person being faced with all that and finding out that they have six months to live. As the right hon. Member for North West Hampshire said, there is no guarantee that it is six months—more than 40% of those diagnoses do not turn out to be correct, and they could live longer. What would the impact be on that person? Could they make that decision? From a capacity point of view, I am not sure that that would exist.

[Kit Malthouse]

The hon. Lady is feeling towards the point I was trying to make, perhaps slightly incoherently. The point is that in my view, whether or not those people have access to this service, it should be based on an assessment of them as themselves, including their mental capacity, particular characteristics and their settled will, just as it would be for everyone else under the Bill. The fact that they are, at that point, a prisoner impacts on the context in which their capacity is assessed, which must be the critical factor. Having a blanket ban on all prisoners, capable or otherwise, seems cruel, if I am honest.

We know that prisons have to assess capacity in difficult circumstances. There are prisoners who decide to decline food and water and starve themselves to death. They are assessed as having capacity, if that is not the case, and in certain circumstances they are force fed, if it is seen that they do not have the capacity to take that decision themselves. In fact, the reason why prisons have created hospices within prisons is to deal with exactly such end of life decisions.

If we are doing it for non-assisted dying, why would we deny people the choice and autonomy, having been assessed as capable of making the decision, to do it in prison? Worse than that, if we are going to release them on compassionate grounds, why would we give them a shorter period to access the service than anybody else?

[Naz Shah]

I appreciate where the right hon. Member is coming from—I sincerely do. It comes back to the heart of the issue around capacity. We heard from the psychiatrist—her name escapes me, but she was on the right-hand side—that, where there is an increase of vulnerability, if somebody is told they would get pain relief, they would choose an alternative path. Those were similar words, and I will find the reference.

My point is that we do not have equal healthcare access in prison. We provide prisoners with healthcare, but it is in no way equitable. The health inequalities that exist outside prison are bad enough. Palliative care is not fit for purpose in our country—it is a postcode lottery. Depending on which prison someone goes to, that will determine what kind of access they have to palliative care. It is not a level playing field.

[Dr Opher]

I have a simple question: is it not illegal to deprive people in prison and homeless people of the same care that the rest of the population receives?

[Naz Shah]

It would be if we were making treatment equitable, but if we apply the test of legality, and this is about pain—we have already seen the amendments tabled by the hon. Member for Harrogate and Knaresborough, which would widen the scope from six months to 12 months—where do we draw the line in terms of equity and legality? The Bill is open to a lot of legal challenges, and if we want to go down that route, there would be plenty of them.

[Tom Gordon]

There is a fundamental difference between trying to ensure that people have equal access to assisted dying and prohibiting a specific group or category. Does the hon. Member understand that?

[Naz Shah]

I understand that perfectly well. On the idea of not giving people assisted dying, as the Bill stands, the category also includes people who decide to stop eating or taking insulin and people who decide not to go on dialysis. It includes a whole host of illnesses. If we are talking about the legal challenges, which my hon. Friend the Member for Stroud started with, the legal challenges for the Bill are vast as it stands.

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[Kim Leadbeater]

rose—

[Naz Shah]

I give way to the hon. Gentleman first.

[Danny Kruger]

On the point of legality, of course a law could be challenged under the European convention on human rights, but Parliament is sovereign. If Parliament decides to exclude a particular category, we in this place have to take this enormous responsibility—we make the law in this country.

[Naz Shah]

I give way to my hon. Friend.

[Kim Leadbeater]

My hon. Friend has listed certain categories of people, and we will come on to the definition of terminal illness. I am confident that, given the definition of terminal illness in the Bill, some of the groups of people she has talked about will not be included in its scope.

[Naz Shah]

Where does it specify that? I know we are going to debate that subject later, but right now there is nothing that gives me assurance that those people will be excluded. Unless there is an amendment that my hon. Friend the Member for Spen Valley will support, the Bill, as drafted, would still apply to somebody if they decided not to carry on with treatment, or if they decided they did not want to take their insulin or other medication and that would lead to their death. I am happy to give way to my hon. Friend so that she can explain how she is going to deal with that.

[Kim Leadbeater]

I will. Let me read from the Bill. The definition of “terminal illness” under the Bill is that

“the person has an inevitably progressive illness, disease or medical condition which cannot be reversed by treatment”.

The conditions that my hon. Friend is describing can be reversed by treatment and are not inevitably progressive. We will come to that debate in due course, but that definition is crucial.

[Naz Shah]

I beg to differ on the wording that my hon. Friend just used. It actually makes my point. As it stands, if I were an insulin-dependent diabetic—and I have been so on three occasions, with my children— I could say that if I stopped taking that insulin, I would become terminally ill. In the Bill as it stands, and as it is drafted, I would meet the criteria.

[Kim Leadbeater]

My hon. Friend would not meet the criteria. She might be describing a condition that cannot be reversed, but it is the “inevitably progressive” part that we are talking about. Because it can be treated, it is not an

“inevitably progressive illness, disease or medical condition”.

[The Chair]

Order. A debate about the definition of “terminal illness” will come later in the Bill, and it might help us all if we were to swiftly move forward to that point.

[Naz Shah]

Absolutely—we will come back to that conversation.

[Sean Woodcock]

My hon. Friend the Member for Stroud, in his rebuttal to my hon. Friend the Member for Bradford West, described assisted dying as “medical care”. Personally, I do not regard assisted dying as medical care. Does my hon. Friend agree?

[Naz Shah]

I am still having that debate in my head, and I am not convinced. I will not digress—I will come to the point—but there is a conversation about whether it is “treatment”, “assisted suicide” or “assisted death”. Those terms have been bandied about. I genuinely think that, ultimately, we have to use the word “suicide” because we are amending the Suicide Act 1961. I appreciate the context in which the promoter of the Bill puts it forward, but the truth is that it is about taking one’s life, so that is how I respond to that question.

To come back to the amendments tabled by the hon. Member for East Wiltshire, the reason why I will support them is that I have way too much experience of people in vulnerable positions, and I have a lifetime of experience of seeing what happens. I do think there are options when somebody has a diagnosis of terminal illness. The prison systems are set up to be able to give them compassionate leave and to explore other avenues. Once they are outside that system, they can access support and have their vulnerability reduced.

[Dr Shastri-Hurst]

Will the hon. Lady help me to understand her position? Is it a fundamental disagreement with any prisoner having access to assisted dying, or is it a fundamental issue with completing the final act, as set out in clause 18, while being a prisoner? For example, the hon. Lady touched on early release on compassionate grounds. Under those circumstances, there may be a prisoner who has been given a six-month diagnosis, and their early release may not be until the last couple of weeks of their life. Should they be deprived of going through the process and the assessment, albeit not enacting the final act until they have been released?

[Naz Shah]

Yes, I think there should be a deprivation of that final act, because there are vulnerabilities with that prisoner while they are inside a prison. What they need is not an option of assisted death at that point. That speaks to the amendment that I tabled, which is about making sure that we do not have the conversation in the first four weeks in any case, because a diagnosis of terminal illness affects people’s mental capacity and mental health. We know that: we have heard it from the psychiatrists. It is common sense; it does not take a genius to work it out.

We know that people in prison have additional vulnerabilities. We are having a debate about the issue of capacity, which we have clearly not agreed on. A person-centred care package needs to be about supporting the person, removing vulnerabilities, giving autonomy, and offering choices around accessing palliative care and medication, so that they are in a much stronger position to make an informed choice.

[Kit Malthouse]

I am grateful to the hon. Lady for allowing me to intervene again. Can she not see that by supporting the hon. Gentleman’s amendment she is basically defining all prisoners as de facto vulnerable? It is not the case. Although many are vulnerable, both my hon. Friend the Member for East Wiltshire and I have met a lot of criminals and prisoners in our time, and quite a lot of them are smart, capable people who made a stupid decision. They are not vulnerable; they deeply regret what they did and go on to live perfectly functional lives.

We should be applying to prisoners exactly the same criteria of assessment—around capacity, vulnerability and settled will—at the time they are diagnosed with a terminal disease as we do to everybody else, because if we are not going to differentiate among prisoners, in many ways we are dehumanising the entire population. We are saying, “You are all vulnerable—no question—and we are excluding you completely on that basis.” As the hon. Member for Harrogate and Knaresborough said, that is in many ways a fundamental denial of a basic human right.

[Naz Shah]

The idea that it is the fundamental denial of a human right is not quite correct. We are talking about the denial of a provision in a Bill that has not come into law. It is a potential legal position; it is not necessarily a human right yet. If the Bill comes into force, at that point it becomes an option that could be denied. There are many prisoners. Prison serves many purposes, one of which is to reform. There will be many prisoners who go in there and get a degree in criminality because they are surrounded by other prisoners. There are people who make choices.

In the first four weeks we should not have the conversation around assisted death in any case. I have tabled an amendment to that effect and will speak to it when we come to it. In the meantime, a person has an added layer of pressure if they are in prison. It does not mean that everybody is necessarily vulnerable from a starting position. I agree that there may be prisoners who are not vulnerable, but there is an added pressure if somebody is homeless or in prison, not having family or security, that would no doubt compound their mental health. Whether that is a slight or a large impact is for somebody else to assess, but as it is I support the amendment.

[Tom Gordon]

I can understand where the hon. Lady is coming from, but I wonder whether she has any specific examples of groups such as people who are homeless or prisoners having other rights denied to them. That is what I am struggling with, although I can understand her point about people being vulnerable. The only other example that strikes me is that people who are incarcerated are unable to vote. I cannot think of any other instance where people would have any particular right removed from them. Does the hon. Lady have any other examples or comparable situations she can share to help us?

[Naz Shah]

I do not have any comparable situations; this is uncharted territory.

[Danny Kruger]

Prisoners are denied their liberty, not just their vote. They are treated as a single class of people who the state has specific responsibilities for, because it essentially owns them for the time that they are incarcerated. Prisoners have particular protections, but they are also denied a whole range of human rights and opportunities that the rest of society can have. It is not inappropriate to treat prisoners as a distinct class of people to whom the state has a specific responsibility.

[Naz Shah]

The hon. Gentleman clearly has more recent experience of prisons than I have—thankfully. In closing, I will be supporting his amendments to protect people who are vulnerable in prison and people who are homeless.

[Sojan Joseph]

I want to contribute to this discussion based on my experience as a mental health nurse. I worked in mental health services for 22 years, including managing a medium secure forensic unit. I have worked with many homeless people and people who were detained under the Mental Health Act by the criminal justice system in those medium secure units and who had been involved in criminal activities.

With my experience, I can categorically say that that group of people is very vulnerable. As the hon. Member for East Wiltshire said, self-harming and suicidal tendencies are very high among that group. As part of the risk assessments that we carry out in the mental health system, one of the questions is whether they are homeless. That question is asked to identify that vulnerability.

These amendments bring up the importance of a psychosocial assessment, which was highlighted in many pieces of our oral evidence. If we are looking to bring more safeguards into this Bill, that is something we should consider to safeguard this group of people.

I want to make one more point about what the right hon. Member for North West Hampshire said: not all homeless people are homeless in the same way; some people choose to sleep rough. I am not clear whether, if somebody is sleeping rough and is diagnosed with a terminal illness, we are looking to bring them back into an NHS bed to assist them to die. I do not know whether there is a provision to identify how we would manage those sorts of situations.

--- Later in debate ---

[Stephen Kinnock]

The amendments relate to the criteria that individuals would need to meet to request assistance to die under the Bill. All the amendments seek to amend the eligibility criteria in some manner. To reiterate, the Government have no view on the policy questions pertaining to the amendments, and my role here is to offer observations on the legal and practical impact of amendments tabled. The legal impact of these amendments will be the main focus of my remarks.

Amendment 353 seeks to make prisoners ineligible for assisted dying services even if they meet the definition of having a terminal illness. Amendments 354 and 355 are consequential amendments that would make it a requirement for the co-ordinating doctor in the first assessment and the court process to ascertain whether a person seeking assistance to end their own life is a prisoner.

Aside from the right to liberty, article 5 of the European convention on human rights requires that prisoners should have the same rights as those who are not prisoners. The rights engaged by the amendment are article 8 on the right to respect for private and family life and article 14 on the protection from discrimination. Making prisoners ineligible for assisted dying would, on the face of it, lead to a difference in treatment between prisoners and non-prisoners that would need to be objectively and reasonably justified. The justification test requires that the treatment in question is a proportionate means of achieving a legitimate aim.

[Naz Shah]

I note that the Minister used the word “treatment” twice, but we are not talking about a treatment; we are talking about assisted death. I think someone mentioned earlier that it is a treatment, but it is not a treatment, is it? I would welcome his clarification on that.

--- Later in debate ---

[Juliet Campbell]

I still think that it is important to add “demonstrably”. The word should be included; I do not see that it would create any additional confusion. The right hon. Member for North West Hampshire said that he had tabled some amendments later on in the Bill. However, that is later on. Putting in “demonstrably” here would strengthen his proposal.

[Naz Shah]

Does my hon. Friend share my frustration that when the Minister says, “This is the Government’s position,” he says so in the absence of an equality assessment or impact assessment? I appreciate that the Government have outlined that the process is different, but in the absence of those assessments, where do we find the weight to support those positions?

[Juliet Campbell]

I absolutely agree. The word “demonstrably” could produce that weight. It could add to every other part of the Bill that a person must be able to demonstrate to health and social care professionals that they understand what assisted dying is and understand the process that will be gone through. The person needs to be able to demonstrate to other professionals that they understand. A written report by a health or social care professional is not enough; the person themselves will have to demonstrate that they have a full and clear understanding.