Terminally Ill Adults (End of Life) Bill (Twenty-fifth sitting)

Debate between Neil Shastri-Hurst and Danny Kruger

Tuesday 18th March 2025 Public Bill Committees

[Danny Kruger (East Wiltshire) (Con)]

I am grateful to my hon. Friend. I was simply asking what causes him to object to physician-administered assistance to die. If he supports the principle of assisted suicide and believes in doctor autonomy, why does he not think that doctors should be able to administer the fatal dose?

[Dr Shastri-Hurst]

This gets to the root of how the law has operated in another jurisdiction, Switzerland, where Dignitas has managed this scenario over the past 40 years or so. The key—these are the words that its own guidance uses—is ensuring that the power of control remains with the person seeking the assisted death. That provides the individual who is making the choice with the ultimate autonomy at the end in controlling the circumstances and the manner in which they pass.

I have set out why I feel that although amendment 463 arises from good intentions, it would not achieve what is intended. There is a real risk that the constraints that adopting the amendment would create would lead to the regrettable unintended consequence of individuals being forced to have an assisted death at an earlier stage than they would otherwise have wished.

I can deal with amendments 497 and 498 in short order. They would tighten up the Bill by providing greater clarity around the circumstances in which the substance would be removed from the presence of the individual who had previously indicated a wish to have an assisted death. Amendment 497 specifies that the individual would need to set out to the co-ordinating doctor that they no longer desired to go through with the process. In my view, that is eminently sensible. Amendment 498 elaborates on the Bill to provide greater clarity to those who will be operating it. It will make it a much more workable piece of legislation. I support both amendments.

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[Danny Kruger]

I am absolutely certain that if the amendment had been in the original Bill, the Bill would not have passed Second Reading, because it would have validated the argument that many of us made that the implication of assisted suicide is euthanasia. The distinction between them, while valid in the abstract, does not apply in practice, and that distinction will be quickly overridden in time. I agree with the hon. Gentleman.

[Dr Shastri-Hurst]

Although I have certain sympathies with these amendments, I do not feel that they are necessary or desirable. They are not necessary because of the provisions that are already stipulated in clause 18(6)(b), which provides the co-ordinating doctor with the ability to prepare

“a medical device which will enable that person to self-administer the substance”.

That subsection, in effect, negates the scenario that is put forward in amendment 350 around dysphagia or the loss of a limb. It would permit, for example, the use of a nasogastric tube or a percutaneous endoscopic gastrostomy feeding tube to be used for the administration of the substance in the case of dysphagia. In the case of the functional loss of limbs, as was discussed in the debate on the previous group, a range of assisted technologies are available that would remove the barriers that that would present.

Beyond the necessity, or lack of necessity, of these amendments, I fear that they create legal uncertainty, which is clearly undesirable and, in this instance, could have a serious and significant unintended consequence through the amendments’ interaction with clause 24. Subsection (3) of that clause inserts proposed new section 2AA of the Suicide Act 1961, which is an exemption to that Act in respect of the assistance provided under this Bill. In effect, proposed new section 2AA disapplies sections 2(1) and 2A(1) of the Suicide Act where the provision of assistance is done in accordance with the Bill. Those sections specifically relate to an act

“capable of encouraging or assisting the suicide or attempted suicide of another person”.

Introducing the concept of additional assistance, as these amendments would, creates a legal uncertainty. The word “additional” creates a further concept that is beyond assistance but is, thus far, ill defined. Would it go as far as, for example, the clinician taking full control of administering the substance? It is entirely unclear. It would therefore place the clinician in an invidious position as to what it would mean for them to provide additional assistance in such circumstances. As I read the interplay between the Suicide Act and the proposed legislation, the clinician would not then be exempt by virtue of clause 24(3), leaving them open to prosecution under the Act.

[Danny Kruger]

I am grateful for that; I particularly respect my hon. Friend’s concern to protect the doctors from any confusion in the law they might be operating under. Just to take him back to the question of technology resolving what I regard as an insuperable problem—the difference between assistance and administration—is it my understanding that my hon. Friend would oppose a patient’s being able to ask a doctor to administer a lethal drug to him or her, but that he would support a patient’s being able to ask a computer to administer a lethal drug to him or her? Would he accept the computer performing the act at the patient’s request?

[Dr Shastri-Hurst]

My hon. Friend hits the nail on the head, because it is the patient who is driving the decision. They are making that act by activating the electronic device—the computer or whatever it may be in terms of assistive technology—but they have the power and control over that decision-making process, which is completely distinct from a clinician doing that act. It is distinct because it is activated by the patient—by the person making that decision—and that is why I draw the distinction. My hon. Friend may not agree, but that is my rationale for drawing a distinction between the two.

Terminally Ill Adults (End of Life) Bill (Twenty-fourth sitting)

Debate between Neil Shastri-Hurst and Danny Kruger

Committee stage
Tuesday 18th March 2025 Public Bill Committees

[Danny Kruger]

My point is that it is very difficult to draw a line here. I recognise the scenario that my hon. Friend raises: why should a nurse not be able to hold a straw for a person to drink from? I might say that should be acceptable; however, I do not think it should be acceptable for the nurse to tip the pills into the patient’s mouth. Does he think that scenario would be acceptable? Or to give another one, would it be acceptable to actively provide force on top of a patient’s finger to press a syringe? Would he regard that as acceptable assistance?

[Dr Shastri-Hurst]

That is why clause 18(7) is so important: the final act must be undertaken by the person seeking an assisted death. The example my hon. Friend gives of tipping tablets into a mouth is a final act. Pushing a syringe is a final act. There is a significant distinction between an individual or practitioner holding a cup with a straw and the person seeking an assisted death moving their mouth towards the straw, sucking from it and imbibing the substance and the passive act of a substance being raised to that individual’s lips and poured in without any movement by the individual seeking an assisted death themselves.

[Danny Kruger]

When we talk about this in future debates, it might be appropriate for this conversation to be referenced. I think my hon. Friend is suggesting that it should be acceptable, and that assisted death would be legal, as long as the patient moved their head towards the straw and cup, and that it would be illegal, according to my hon. Friend’s definition, were a doctor applying a cup to a patient’s lips and the drugs fell in by gravity. Is that right? Is that how judges in future should determine whether assistance has crossed the line?

[Dr Shastri-Hurst]

It is very clear from subsection (7) that this must be an active step taken by the individual. There is a risk that we go down a rabbit hole in terms of—[Interruption.] I am sure my hon. Friend would like me to finish my point. We risk going down a rabbit hole in drawing examples. I raised the example of a cup, but of course there are much wider assistive technologies that can be used and are used in different jurisdictions. I gave the example to illustrate the point that this is an active act, not a passive act.

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[Dr Shastri-Hurst]

My right hon. Friend makes an important and powerful point. I think there is a consensus among the Committee that there is no desire for people to take this ultimate step at an earlier stage than is absolutely necessary for them. My very real fear is that, were we to adopt this amendment, we would bring forward that point of decision.

[Danny Kruger]

The logic of that argument is to allow physician-administered suicide, because there will be a point at which people are physically unable to perform the act but have capacity, and their autonomy should be respected—

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

Debate between Neil Shastri-Hurst and Danny Kruger

Committee stage
Tuesday 11th March 2025 Public Bill Committees

[Dr Shastri-Hurst]

It is a pleasure to serve under your chairmanship, Ms McVey, and to speak to this group of amendments. Amendments 93, 305, 142 and 362 relate to clause 9(2)(b)(iv); amendment 306, tabled by the hon. Member for York Central (Rachael Maskell), relates to clause 9(2)(c).

Clause 9(2)(b)(iv) stipulates:

“The assessing doctor must…explain to and discuss with the person being assessed…the nature of the substance that might be provided to assist the person to end their own life (including how it will bring about death)”.

My amendment 93 would replace “might” with “is to”. In my view, the word “might” creates an air of possibility. The Oxford English Dictionary gives the following definition:

“A possibility as distinct from a certainty”.

The Cambridge Dictionary goes somewhat further, defining “might” as the expression of a

“possibility that something will happen or be done, or that something is true although not very likely”.

In the context of the Bill, I consider that the use of “might” would create too ill-defined a concept.

For a patient to provide informed consent, it is necessary that the healthcare professional set out the relevant information in sufficient detail to enable that person to make an educated decision. In the circumstances of providing a substance, it follows that that information must include what that substance is. In my submission, it is insufficient simply to inform a patient that they might be provided with a substance, although they are just as likely, if not more likely, to receive another substance. Changing “might” to “is to” would provide greater certainty and precision in the wording of the Bill.

I recognise the concerns that have been raised that adopting amendment 93 would overly restrict which substance can be used, which may create an issue if the substance needs to be changed, for example if it was to be taken orally but has to be administered via a different route because the individual is no longer able to ingest orally. To my mind, however, the amendment would not prohibit a clinician from setting out to the individual a range of substances that could be used to provide them with the ability to end their own life, as long as the clinician includes the substance that is used and, crucially, the person seeking an assisted death indicates that in those circumstances they are content for that particular substance to be used. For example, it would be entirely open to an individual to inform a clinician that they are happy with regimes A, B and C, but not D.

[Danny Kruger (East Wiltshire) (Con)]

I absolutely agree with what my hon. Friend is trying to do. This is a genuine question: does he think that it is possible at this stage for the Government, the Medicines and Healthcare products Regulatory Agency, the NHS or whoever to provide the information that would be required? What is needed to enable the Bill to come into effect with the amendment that he proposes, so doctors are able to say exactly what drugs will be used?

[Dr Shastri-Hurst]

In the scenario that I envisage, as we have seen in other jurisdictions, there are a variety of regimes that could be used in the given circumstances. It would be appropriate for an approved list of medications and substances to be a delegated matter for the Secretary of State. As medical and pharmacological studies progress, there may be changes to those regimes, so I do not propose putting a list on the face of the Bill. The way I envisage it operating, if the Bill comes into law, is that there would be an approved list of substances that would be open to use. There would have to be a range; we are acutely aware that there are supply chain issues at times, so limiting it to just one regime would be impracticable. I believe that amendment 93 would strengthen the wording of the Bill to provide greater certainty that the nature of the substance to be provided will be explained to and discussed with the person who is seeking an assisted death. I am grateful to my hon. Friend for indicating his broad support for the amendment.

I turn to amendment 305, tabled by the hon. Member for York Central. I appreciate the premise of the amendment, but I have some concerns about the precision of the drafting. It would require the assessing doctor to explain the effects of the provided substance, in addition to how it would bring about death. In its current form, the Bill requires the discussion with the assessing doctor to set out how the provided substance will result in death. My understanding is that the intent of amendment 305 is that they set out the side effects beyond those directly related to the mechanics of bringing about death; this would include any wider discussion around side effects.

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

Debate between Neil Shastri-Hurst and Danny Kruger

Committee stage
Tuesday 4th March 2025 Public Bill Committees

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

I rise to set out why—reluctantly—I cannot support amendments 403 and 404, which have been tabled by my hon. Friend the Member for East Wiltshire. It is not because of the principle involved, because my hon. Friend was very clear in setting out the amendments. They would not provide for a prescriptive situation where an individual must tell their family. A range of options are set out, which I anticipate that any sensible and responsible doctor or clinician would take a patient through, encouraging them to involve their family in their decision making.

The issue that I have is around the legal clarity of the wording of the amendments, because under the English and Welsh legal system there is no statutory definition of “family”. There is a concept of family, but the concept of family to me may be very different from that of my neighbour, or from that of someone who lives in another city. For example, for some people stepbrothers, stepsisters and step-parents are very much part of their family; for others, they are not. For some people, unmarried couples with children are a family; for others, they are not. For some people, unmarried couples without children are a family; for others, they are not.

[Danny Kruger]

I take that point; families are difficult to define. Nevertheless, the Bill currently refers to the opportunity for a doctor, or the suggestion that a doctor,

“in so far as the assessing doctor considers it appropriate, advise the person to consider discussing the request with their next of kin and other persons they are close to.”

That is more precise. Would my hon. Friend accept an amendment along the lines that I have proposed, prior to the first declaration, but using the language that is currently in the Bill about

“their next of kin and other persons they are close to”?

[Dr Shastri-Hurst]

That would satisfy me. The reason I say that is because at the moment the wording is too broad and ill-defined. The question is: is this about the closeness and proximity of a relationship? The suggested wording that my hon. Friend just put forward would be much closer to that and much clearer, and more akin with the language of medical registration. When someone turns up in A&E, they are asked to give the name of their next of kin. That defines the closeness, the proximity and the permanency of that relationship.

If my hon. Friend was perhaps to consider withdrawing this amendment and tabling it again in an alternative form, or rewording it, that would certainly be something that I would be open to supporting. I have outlined why, as the amendments currently stand, I cannot support them.

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

Debate between Neil Shastri-Hurst and Danny Kruger

Committee stage
Wednesday 26th February 2025 Public Bill Committees

[Danny Kruger]

I am grateful to my hon. Friend for setting it out so clearly, but I would like a little more clarity because I do not fully understand. My understanding from the Bill is that at the moment of the administration of the fatal drugs—the final act, as it is called—the administering doctor has to be confident of capacity. Were a person no longer conscious at that point, the doctor would not be able to proceed.

[Dr Shastri-Hurst]

The purpose of new clause 6 is to get clarity on that issue, because of the interplay with section 26 of the Mental Capacity Act, which states that if a patient

“has made an advance decision which is...valid, and...applicable to a treatment...the decision has effect as if he had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued.”

I am not suggesting for a moment that seeking an assisted death is conventional treatment in the normal sense, but there will be patients who seek an assisted death and have palliative care treatment along the way, so there could be a technical scenario whereby the palliative care treatment is withdrawn for the assisted death to take place.

There is an element of mischief in my probing new clause, but it is to air the matter in debate. In truth, intervention there are a variety of options with any withdrawal of treatment or any treatment. I wanted that on the record. I have had assurances from the hon. Member for Spen Valley that that is clearly not the Bill’s intention—in many ways, I am arguing against my own new clause. Of course, this is a distinct scenario from an advance statement—the much more proactive step of, “These are the treatments or options that I would like if I lose capacity at a future date”—which has no legal footing. An advance directive, in comparison, is very much concentrated on the withdrawal of care. I do not propose to divide the Committee on the new clause; I merely tabled it so that this could be discussed.

Let me turn to amendments 8 and 124. There has been much discussion and worthy debate on the position of Montgomery, which takes me back to my days as a pupil barrister grappling with issues of consent. I fear that we may be going down a rabbit hole in discussing Montgomery in this context. I agree with my hon. Friend the Member for East Wiltshire that an assisted death is not typical medical treatment in the normal sense of those words; it is a wider holistic medical intervention. Therefore, my understanding is that Montgomery would not apply in those circumstances.

However, some of the principles around Montgomery way well have justification. My concern about the amendments is that while it is quite right that there should be no requirement to instigate those discussions, it would be equally wrong not to allow the flexibility to have that conversation in appropriate circumstances. The reality of clinical practice is that there are consultations within consultations. A patient who comes to a surgery to see their doctor may not feel able to articulate what they truly feel. They may give subtle hints, which doctors pick up during the course of a long career—to put it in lay terms, doctors read between the lines.

There is interplay with the principles of Montgomery, which is clear that a doctor should discuss issues where a reasonable person in the patient’s position would attach significance to them or the doctor is, or should reasonably be aware, that that particular patient would attach significance to them. My hon. Friend the Member for East Wilshire asked for examples of that. There are scenarios where there are subtle hints from a patient who has been given a terminal diagnosis. They ask, “What is the implication of this terminal diagnosis? How am I going to die, doctor?” The doctor says, “There are variety of ways in which this may manifest itself” and goes through them. Some of them may be more tolerable to the patient than others.

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[Danny Kruger]

I am grateful to my hon. Friend for setting out the scenario so clearly. To summarise, he is suggesting that if a patient with bowel cancer says to their doctor, “How am I going to die?”, the doctor would say, “Well, one possibility is that you will die very badly, vomiting faeces,” to which the patient says, “My goodness, I’d never thought of that. What can we do about it?”, to which the doctor should say, “Well, there’s always assisted dying.” I summarise and condense the conversation, but that is the conversation that my hon. Friend is envisaging, is it not?

[Dr Shastri-Hurst]

My hon. Friend summarises a much more complicated conversation; I think he distils it down to an over-simplistic representation of how the conversation would go. A patient says, “I hadn’t envisaged that I may die while vomiting up faeces. What could we do?” The clinician would go through a variety of options that would be available in that scenario, but that would include, potentially, having a discussion about assisted death, as that would be one way of avoiding that situation coming across the hills.

This is the issue I have particular concern about. In the scenario where that conversation arises, a patient has very clearly indicated that they want to know all the options available for how they would manage their death, and the doctor feels that is a cue, quite understandably and, in my view, rightly, to have a wider conversation that involves assisted death, along with other options, because he or she believes that the patient has indicated that that is what they wish. If we say that a doctor cannot have that conversation in any circumstances, we open up the clinician to the accusation, perhaps from a relative, who says, “Hang on a minute, doctor. My relative didn’t raise that with you. You raised it with them.”

These are very subtle and carefully balanced conversations. I understand where the amendment comes from, but without trusting in the judgment of clinicians, who know their patients well, we are setting them up to fail. We are setting the system up to be more clandestine. We are going to prevent what are very genuine and important conversations from taking place, because people are too scared of the operational framework that would be imposed on them. In those circumstances, we would put forward a Bill that does not function as intended. For those reasons, I will not support amendments 8 and 124.

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

Debate between Neil Shastri-Hurst and Danny Kruger

Committee stage
Tuesday 25th February 2025 Public Bill Committees

[Dr Shastri-Hurst]

I am grateful for the hon. Member’s intervention, which leads on to the point I was going to make. We are getting bogged down in nomenclature about what speciality is involved when this is actually about training. It is about whether the individual having the conversation has the requisite skills to have a meaningful conversation. Clauses 5(3)(a) and 8(6)(a) stipulate that the co-ordinating doctor or independent doctor

“has such training, qualifications and experience as the Secretary of State may specify by regulations”.

That is the key part. This is about ensuring that people having incredibly sensitive, challenging and difficult conversations with patients about choices available to them at the end of life have the requisite skills and knowledge to do so. That may not be applicable to each and every general practitioner, but those having those conversations should have that knowledge.

[Danny Kruger]

My hon. Friend is making a thoughtful speech, but I am concerned that he suggests that the skills required are simply the skills of conversation. The skills required are the skills to understand the patient’s condition and lay out very clearly to them their prognosis and the treatment options available to them.

With all respect to my hon. Friend’s father and other GPs, I cannot accept that every GP is fully qualified to understand the dying trajectory of the patient before them—perhaps my hon. Friend will confirm his belief that that is so. If that is true, what is the point of the palliative care profession? We have GPs already and are now introducing psychiatrists and social workers into the mix; I do not understand why on earth it should be regarded as unnecessary to include professionals in palliative care—the key skill that we all recognise as so important in this space. Why not?

[Dr Shastri-Hurst]

I fear that my hon. Friend may be oversimplifying what I was saying. Perhaps I was not clear enough, so I will elucidate. I was certainly not suggesting that the required skills were merely those of being able to have a consultation and a conversation. I was talking about having the skills to have the information that needs to be imparted and the knowledge that underpins that and being able to articulate that within a consultation. It is a much wider picture than just having the communication skills—it is having the knowledge that underpins that. I am saying that that is not necessarily the domain only of someone who works in palliative care. There are a number of specialists who work within this field—it is a multidisciplinary field—and they all bring their expertise. The issue is about ensuring that anybody having these conversations has the knowledge base to conduct them properly.

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

Debate between Neil Shastri-Hurst and Danny Kruger

Committee stage
Wednesday 12th February 2025 Public Bill Committees

[Danny Kruger]

We are suggesting that an application in which the applicant has been encouraged—or coerced, unduly influenced or manipulated—would not be acceptable. The assessing doctor must confirm that there has been no encouragement. That is the purpose of the amendment. I hope that satisfies.

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

I just want to understand this, so that I can appreciate the amendment in full. I believe that my hon. Friend—he will correct me if I misheard—spoke of encouragement effectively being pressure: that there is the act of encouragement and then an individual being pressured into making a decision that is not in their best interests. We have talked much about coercion but if that is my hon. Friend’s position, can he elucidate why the words “or pressured” are not sufficient to deal with the issue that concerns him?

[Danny Kruger]

The value of the word “encouragement” is that it is broader than simply “pressure” or “coercion”. In response to the points made by the hon. Members for Spen Valley and for Rother Valley, the purpose of these amendments is not to criminalise the pressure—there are other clauses that address that question—but to ensure that somebody cannot proceed with an assisted death if the doctor concludes that that person has been subject to encouragement, manipulation or undue influence. The word “encouragement” entails that they have made their decision on the basis of that encouragement—that is the clear implication. I hope that is helpful.

[Dr Shastri-Hurst]

It may be that I am a dense former surgeon, so please help me, but could my hon. Friend the Member for East Wiltshire give an example of what, in the definition of “encouragement”, would be broader than “pressure”? If we are not saying that supporting somebody through this process is acceptable, what would be a specific example where “encouragement” comes into this that would fall outside the scope of “pressure”?

[Danny Kruger]

I am trying to ensure that there will be a sufficiently broad scope that doctors must be obliged to check that there has been no undue influence, pressure or encouragement. An example would be an elderly person who has been actively encouraged: it has been suggested in all love, and possibly with perfectly decent motives in the mind of the person applying the encouragement, that it would be best for them, their family and society as a whole if they would expedite their death—earlier than would otherwise happen in the natural course of things. “Encouragement” is a more comprehensive term and concept than “pressure” or “coercion”.

Our concern is that a doctor applying the current test in the Bill will simply look for evidence of direct, fairly forceful pressure or coercion, as it is understood in the more heinous cases, with which we are all familiar, of partners applying coercive control or direct abuse. We obviously all want to exclude that, and it is already excluded. What we are concerned about here is the more insidious, subtle and—I am afraid to say—widespread pressure that the evidence from our witnesses told us about. We are concerned that it is not possible to ensure that people will be protected if the terms currently in the Bill stand.

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[Danny Kruger]

I totally acknowledge that. I fully recognise that, as I said, morphine allergy does indeed exist, but I am told that it is very rare. I hope that the hon. Lady’s relative will confirm that there are other things that can be done for people who suffer from pain if morphine is not appropriate.

I suppose that is the point that I want to make: no palliative care professional would ever say that they cannot help somebody in terrible pain. There is always something that they would like to do and always more that they can do to assist. The simple reality is that palliative care is improving so much that there is only an infinitesimally small number of people whom palliative care professionals would confirm they cannot help. I recognise that those people exist. I am not being naive or Panglossian and suggesting that palliative care can be perfect in all cases, but if we are serious about the purpose of the Bill, which is to help those whom palliative care cannot help, I suggest that that number will be very small.

I pay tribute to the hon. Member for York Central (Rachael Maskell) and to the noble Baroness Finlay, whom I mentioned. They are leading a commission on palliative care at the moment, which is a helpful corollary to the debate we are having here. They will make a series of recommendations, which I will not go into.

I want to conclude with this obvious point. I am repeating myself, in a sense, so I will be quick. If we are going to do this, let us be honest and straightforward about what we want to achieve. We want people who are dying in extreme agony at the very end of their life to avoid the pain of death and be able to avail themselves of this service. It is either that or we say, “No, we have no interest in people’s motivation for wanting it. We simply respect their autonomy. Unless we can detect external coercion,” which is the only thing that the Bill currently seeks to exclude, “and as long as a doctor can give confirmation that they have six months to live,” which is not difficult to get, “we don’t care why they’re doing it. We respect their wish, and whoever they are and whatever is going on behind the scenes, they can go for it.” We either have a Bill based on full autonomy—I think that is what some hon. Members genuinely believe we should do—or we try to restrict it to just those people who face an agonising death at the very end.

[Dr Shastri-Hurst]

My hon. Friend makes a powerful argument, but if that is his intention, the amendment does not achieve it. It does not refer to agonising pain; it just refers to “physical pain”. On a scale of nought to 10, it could be one or two—it does not necessarily mean that it is nine or 10. While his intention is clear, can he explain how the amendment achieves that wish?

[Danny Kruger]

Well, perhaps my hon. Friend wants to come up with a further amendment, to strengthen it even more and say that we should restrict it only to agony or extreme pain. No, I am trying to be reasonable and say that the case made for the Bill, in public and I think in the public mind, is that its beneficiaries will be those who face terrible pain at the very end of their life, and if that is our intention, let us specify that. That is what the Bill does.

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

Debate between Neil Shastri-Hurst and Danny Kruger

Committee stage
Tuesday 11th February 2025 Public Bill Committees

[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.

[Danny Kruger]

My hon. Friend says that the term “ability” is not yet defined, but it is set out quite clearly in new clause 1, tabled by the hon. Member for Richmond Park. It simply says:

“The person is to be considered as having the ability to make a decision to request assistance to end their life if they can fully understand, use and weigh the relevant information”.

It uses the language of the Mental Capacity Act on understanding and weighing information. The key distinction is that it does not allow for impaired judgment; it requires somebody fully to understand the information in front of them. It is very straightforward, and I do not think that it would be difficult to apply. Does my hon. Friend recognise that the terms are pretty clearly laid out?

[Dr Shastri-Hurst]

My hon. Friend makes incisive points clearly and concisely, as always, but I cannot agree. This is a short clause that is dealing with a hugely complicated issue that is presently codified within the Mental Capacity Act, which runs to some 183 pages. I do not think that it is as simple as saying that the new clause deals with the issue.

There is also the two-stage test, which determines both the functional ability to make the decision and whether that decision is impaired in any way. It would be an oversimplification to suggest that the provision as drafted would deal with those issues in a satisfactory way that would provide confidence not only—although most importantly—to those who are making a decision around an assisted death, but to the medical practitioners who are part of the process and the courts, which will have to grapple with the issues that will inevitably arise from a new definition.

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[Dr Shastri-Hurst]

The hon. Member makes an interesting point, which I had already considered; in fact, I have tabled a new clause that would address it. It is not grouped with the amendments now before the Committee, but I will touch on it, if I may.

There is an argument that, if an individual with an advance directive has gone through the two-stage test in the Bill and then loses capacity, the advance directive should hold weight. My new clause 6 would deal with that point. Sections 27 to 29 of the Mental Capacity Act deal with exclusions from advance directives, including issues around voting rights, marriage rights and Mental Health Act implications. There may be a mechanism, for example, to exclude an advance directive that deals with assisted death, either through the Bill or through an amendment to the Mental Capacity Act. But I do not disagree with the hon. Lady; she raises an interesting point.

[Danny Kruger]

Is my hon. Friend suggesting—I think his new clause makes it clear, and I think my right hon. Friend the Member for North West Hampshire is making the same point—that it is inappropriate for an advance directive to authorise an assisted death? The Mental Capacity Act authorises somebody to decline treatment at a future point, so my hon. Friend is acknowledging that there is a difference between the principle of declining treatment and the principle of requesting an assisted death. Given his new clause, I do not imagine that my hon. Friend thinks that we should have advance directives that authorise an assisted death. If he acknowledges that, he must recognise that there is a distinction between declining treatment and requesting an assisted death.

[Dr Shastri-Hurst]

My hon. Friend makes a valid point. I have concerns about public confidence in the Bill without that additional safeguard, as this is such a consequential decision, but of course any advance directive would be predicated on having gone through those two stages first before capacity is lost. I feel that on this occasion additional tightening is necessary so that the public can be confident that a robust process has been gone through.

The MCA is a tried and tested piece of legislation used by practitioners up and down the country. The hon. Member for Stroud uses it every day in his practice; I have to say that I did not, but I was not consenting patients for surgery every day. Every time I did so, however, I had those conversations. Capacity lies on a spectrum: if I am doing major abdominal surgery, the level of capacity required to make a decision will be much greater than if I am removing a small bump or lump on an arm.

As well as having been tried and tested by medical practitioners, the MCA has been tested in the courts, as the hon. Member for Penistone and Stocksbridge said. It has been right up to the highest court in this land, it has been robustly tested and it has been found to be good legislation. The risk we now face is that it will be replaced not only with a new legal concept, but with an entirely different process for assessing capacity in this setting. Although there may be good intentions to improve the system, that will only add to the folly of it and overcomplicate the issue.

--- Later in debate ---

[Dr Shastri-Hurst]

The hon. Member is right: there is a huge spectrum of patients when dealing with these complex issues, and it would be absolute nonsense to arbitrarily say that anybody with depression is unable to make an informed decision on any issue. There are individuals who have mild depression—indeed, I suspect that most people with a terminal diagnosis would have some form of depression or reactive disorder, whether formally diagnosed or not, because of their circumstances. That does not mean that they are unable to make a rational, informed decision; we have to look at each patient individually. The Act is a tried and tested piece of legislation that doctors up and down the country use every day. Doctors over the road in St Tommy’s will be using it at this very moment, and they are adept at knowing and sensing when they need to escalate, whether by getting the opinion of a psychologist or a psychiatrist, because they have concerns about underlying issues. The Act is a robust piece of legislation, and we should be using it to enhance this Bill, not introducing further complexity, which will only put us into a quagmire of uncertainty.

[Danny Kruger]

My hon. Friend does not want uncertainty, so perhaps he could answer this question very directly: would he be content to see somebody who is depressed, and indeed suicidal, successfully apply for an assisted death?

[Dr Shastri-Hurst]

My hon. Friend puts it with his usual candour. He asked a straight question, so I will give him a straight answer: I think there is a difference between somebody who is depressed and somebody who is depressed and suicidal. I have no personal moral objections if someone who has a terminal illness, who suffers from depression and who has capacity as set out through the two-stage test in the Mental Capacity Act, ultimately wishes to end their life because of their terminal diagnosis. If they are doing it because they are suicidal as a consequence of their depression, that is a different and distinct issue. We are talking about individuals who want to end their life because of their terminal diagnosis, not because of their mental disorder.

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

Debate between Neil Shastri-Hurst and Danny Kruger

Committee stage
Thursday 30th January 2025 Public Bill Committees

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

Q I will direct this question initially to Mr Greenwich. The issue of coercion has been a significant concern to many in the debate. In line with the New South Wales legislation, the Bill as proposed does not provide a definition of coercion, either explicitly or by reference to other legislation. Have you found that to pose a difficulty in your jurisdiction?

Alex Greenwich: In New South Wales, our legislation deals with and goes through coercion in quite some detail, with pathways to assess it. It deals specifically, for example, with a situation in which someone is under coercion from a person who is a beneficiary of their will; obviously, the person seeking voluntary assisted dying then becomes ineligible. In the space of coercion, that is a key part of the training for a doctor who will be a consulting or co-ordinating practitioner. We have made it a criminal offence in New South Wales, and indeed our board will report on it and on whether eligibility for access to voluntary assisted dying has been denied to someone. Our most recent report indicates that it has.

The overwhelming experience is that having voluntary assisted dying in place is itself a safeguard from coercion for people with a terminal illness. If someone wants to end their life quickly, voluntary assisted dying through a regulated process is not the option that they are going to take. Someone engaging in voluntary assisted dying will be assessed against coercion and against decision-making capacity, and will have to make sure it is an enduring decision.

When we talk about coercion, and the concern that people may currently have in the UK about people with a terminal illness feeling in any way coerced, the experience in New South Wales and elsewhere in Australia is that voluntary assisted dying has provided a safeguard in that regard. Our legislation, the training and the reporting is very clear on that.

[Danny Kruger (East Wiltshire) (Con)]

Q Can I have one minute with Dr Furst and one minute with Mr Greenwich? Dr Furst, I have had a look at the reports of the South Australia Voluntary Assisted Dying Review Board, and I can find no data on referrals for additional assessments of eligibility or decision-making capacity, or reasons why people were considered ineligible. There is no provision for reporting on complications, the time between the administration of the drugs and loss of consciousness, or the time between the administration of the drugs and death, and as we have heard there is no requirement for a doctor to be present. I do not understand how you can say that there is no evidence of coercion, issues around capacity or complications at the death, because you clearly do not collect the evidence on those things.

Dr Furst: I do not think that is the case. We are seeking out from relatives—within a month, normally—around any complications. As I said, we are also informally speaking to the nurse practitioners who are on site, but I do not think that that has been published as part of our state report. In terms of coercion, I would say that it is much more likely that patients are being coerced into invasive and intensive treatments, like cancer treatments such as chemotherapy, than being coerced into voluntary assisted dying.