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

Sarah Olney Excerpts

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Lewis Atkinson]

Q I have one follow-up on that. At the moment, we are aware that there are instances across the NHS every day where people make decisions around refusing the treatment that would be required to prolong their life. Doctors, nurses and the healthcare team would be involved in assessing capacity and coercion around those cases. Can you tell me a bit about any learnings from that, about the levels of skill required in the current practice around refusing lifesaving treatment, and about how that might be taken into account in the Bill?

Professor Whitty: You are absolutely right: it is a completely normal part of medical and wider nursing, and other practice, but particularly medical practice, to consider issues of consent and capacity. It can be that someone says they do not want treatment that is clearly going to be lifesaving. A very well-known example is that of Jehovah’s Witnesses, who choose not to have blood products. If they are bleeding heavily, that is an issue that could lead to the end of their life. Provided they understand that and they have capacity, that has to be respected.

The alternative way—the other thing that doctors have to do—is to give people advice before they have major operations, chemotherapy or other drugs that may in themselves lead to the end of their life, but which also may lead to a benefit. Explaining to people the risks and benefits, including the fact that they may lose their life as a result of the next stage—if someone is at high anaesthetic risk, that is not a trivial risk sometimes with operations—is a very standard part of medical practice that you do from the point that you qualify. Obviously, as people get more senior, they tend to be more experienced in it—and, as with most things, if you get more experience, you generally get better at it.

[Sarah Olney (Richmond Park) (LD)]

Q Professor Whitty, the definition of “terminal illness” is attracting some attention. Some people say it is difficult to define a terminal illness. Would it improve the Bill if we had a specified list of illnesses that would apply? Is it possible to come up with a list of illnesses that are terminal that would qualify under the legislation?

Professor Whitty: If I am honest, I think it would be extremely difficult. If I may, I will explain why, because it is a really important question. Let us take cancer. For the great majority of people with the majority of cancers that are diagnosed tomorrow, the doctor who is seeing them will say, in all confidence, “You have cancer and I expect you to be alive not just next Christmas, but for many years to come.” The fact that they have cancer is not in itself a demonstration that they are going to die. In fact, the majority will not. Almost 80% of people with breast cancer diagnosed tomorrow will still be alive 10 years later, for example.

Equally, there are people who may not have a single disease that is going to lead to the path to death, but they have multiple diseases interacting, so they are highly frail; it is therefore not the one disease that is the cause, but the constellation that is clearly leading them on a path inexorably to a death at some point in the foreseeable future. Exact timings are tricky—we might want to come back to that. I therefore think it is quite difficult to specify that certain diseases are going to cause death and others are not, because in both directions that could be misleading.

[Sarah Olney]

Q Can you talk a little bit more about whether you perceive any difficulties in having a definition of terminal illness in the Act? How do you think the medical profession will interpret that?

Professor Whitty: At the extremes —most people are at the extremes—it is very clear what is going to happen. For most people, you can say with confidence, barring some extraordinary accident like being hit by a car on the way out, “You’ll be fine in a year, even though you have heart disease, cancer or whatever.” At the other extreme, there are people who are clearly dying and will die in the next two or three days, and virtually nothing will change that reality.

What we are talking about in the Bill, of course, is a point between those stages, but people will definitely reach a point where there will be an inexorable and, importantly for the Bill, unreversible slide towards a point of death. People can make a reasonable central view, if they are experienced in a particular disease, about when the death is likely to happen, accepting that there is a spread around that. I am sure that the general public and Members of Parliament fully accept that this is not a precise science. This is a central view, and there is a big academic literature around this. Some people will die significantly earlier than they are predicted to; a small number will die very significantly later; and some people will certainly die a bit later or to some degree later. The central view is usually reasonably accurate—that someone is now on a pathway from which there is not going to be a return.

[Kim Leadbeater (Spen Valley) (Lab)]

Q Thank you for coming to give evidence this morning, gentlemen. I would like to pick up on coercion and capacity, because they are two really important points in the Bill. I would like to know a little more about the work that doctors and nurses do to check for coercion and assess capacity when patients are making really important decisions and choices at the end of life, but maybe in other contexts as well. The Bill refers to the Mental Capacity Act. That Act is a big piece of legislation, but I am conscious that there is only a short reference to it in the Bill. Is there anything we could add to the Bill that would improve the robustness of the reference to mental capacity? What does it look like now, and is there anything we could add?

Professor Whitty: Duncan, why don’t you take the first bit and I will take the second?

Duncan Burton: In terms of looking for signs of coercion, all of our nursing and clinical staff have safeguarding training, which already looks at things like whether people are under financial coercion or other forms of abuse. That training is already in place and it is extensive across the NHS and social care. If the Bill is passed, we will need to look at how we strengthen that training in relation to spotting the potential signs of coercion in this space as well. Given that that mechanism is already in place, I think that would be an extension, so it is important that we factor that in. I am also mindful, given the scale of colleagues we have working across health and care, that the time between the Bill being passed and its implementation is sufficient that we enable everybody to receive that additional training, if it is required.

Professor Whitty: In terms of strengthening the Bill, as a practitioner, I was relieved that the decision was for the Bill—if it stays this way—to stick with the Mental Capacity Act, and that was for two reasons. First, that Act is used up and down the country by doctors and nurses every day; they know it and they understand it. Although, as you say, it is a large piece of legislation, it is one that people have worked through in practice multiple times. If you ask six or seven doctors, “Does this person have capacity?”, in almost all cases you will get six or seven identical answers, because people are used to using it.

It additionally has the advantage of being tested in the courts. That has gone as far as the Supreme Court, and the various ambiguities that were inevitably in the legislation have been clarified by senior judges. Therefore, to practitioners like me, it feels like a piece of robust and predictable legislation. Within the legislation, it is very important that there are some situations where you will need to call for additional assistance. For example, if someone has a co-existing mental health condition, you will probably want to ask a psychiatrist additionally whether that condition is interfering with the decision taken to the point that someone loses capacity for this very important decision. The level of capacity has to be reasonably high.

My own view is that starting this way is the sensible thing to do. That does not mean there could not be arguments for some additional points, but I cannot immediately—again, as a jobbing doctor—see ones where I think, “This is going to make a big difference.” The fact is that this is founded on a very established bit of well-used and well-recognised legislation.

--- Later in debate ---

[Dr Opher]

Q In some legal medical situations, you need to be five years post training before you can have a view. Is that something you would have in both of these practitioners, or is that not necessary?

Dr Green: We did not take a view on that. We thought that training and experience was more important.

[Sarah Olney]

Q Leading on from Dr Opher’s question about the “must refer” clause, you and Professor Whitty both stress the importance of the relationship between the doctor and the patient, yet there may be doctors who feel very strongly against mentioning assisted dying. Given the existence of clause 4(5) and the “must refer”, do you think there is a danger that there might be doctors who would be reluctant to provide a prognosis of six months or less if they thought that that would make the patient eligible for assisted dying, and that simply was not something they could support?

Dr Green: That is why it is important that doctors should be able to opt out at any stage of this. There are doctors who would find it difficult to do that, and it is important that their position is respected.

[Kim Leadbeater]

Q On the point about referral, what happens in the case of abortion? That is one of the closest parallels we can get. If we have a doctor who is not comfortable having that conversation, presumably they cannot just leave that person with nowhere to go.

Dr Green: What would happen is that the doctor would provide the patient—through their receptionist, through leaflets or through a telephone number—with somewhere they could get the information. You cannot just abandon a patient. They have to be sure that the patient has the ability to do what the patient wants to do.

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

Sarah Olney Excerpts

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[The Chair]

No. Order. We have two and a half minutes to go. One other hon. Member wants to ask a question. I want them to come in.

[Sarah Olney (Richmond Park) (LD)]

Q Thank you, Mr Dowd. I have a quick question for Dr Cox. Earlier on, in the context of multidisciplinary teams, you mentioned how important the family of the patient is. There is currently no role in the Bill, as it is currently drafted, for the next of kin or for any family member. Do you think that is a mistake? Is that something we should look to amend?

Dr Cox: I think it is a choice for the patient. It is always a choice for the patient who they want to involve from their social circle, whether that is family or friends. However, I think that if the patient wants the family involved, then they absolutely should be, and they should be part of those conversations and discussions.

[The Chair]

One last question, very quickly.

--- Later in debate ---

[The Chair]

Unless there are any more pressing questions—

[Sarah Olney]

indicated assent.

[The Chair]

We have one and a half minutes, so it will be a 10-second question and a 20-second answer; unless you can do that, I am going to call it to a close.

[Sarah Olney]

indicated dissent.

[Dr Opher]

Q Sir Nicholas, I have great sympathy with your position, but how would you frame this law so that it would cover yourself?

Sir Nicholas Mostyn: I would frame the law to define terminal illness in the way that it is defined here in clause 2(1)(a), but where the “person’s death in consequence” is referred to, I would delete clause 2(1)(b) and substitute “suffering intolerably”.

[The Chair]

Thank you. That brings us to the end of the time allotted for the Committee to ask questions. I thank our witnesses on behalf of the Committee; thank you for your forbearance.

[Sarah Olney]

On a point of order, Mr Dowd. I had my hand up at the beginning. I was really keen to ask a question in this session because it is pertinent to an amendment that I have tabled. Could you advise how best I can have the opportunity to ask my question?

[The Chair]

I am more than happy to speak to you afterwards. We have had lots of questions today and I tried to get people in as much as possible, but there has to be an element of self-discipline from the people asking the questions and interrupting. I am happy to facilitate if I possibly can, but I am afraid that there is also a responsibility on Members to look to other Members’ needs.

Examination of Witnesses

Dr Ryan Spielvogel and Dr Jessica Kaan gave evidence.

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

Sarah Olney Excerpts

Committee stage
Wednesday 29th January 2025 Public Bill Committees

[Danny Kruger]

Q Mr Robinson, I want to come back to the question of coercion. We heard from advocates of assisted dying laws elsewhere that there is hardly any evidence of cases of coercion in this service overseas, and yet you are reporting—and we absolutely believe you, because we see evidence of it—that there is a chronic problem of elder abuse in our country. Presumably there is in every country. How do we square this? Is it that elder abuse does not apply in the context of assisted suicide in other jurisdictions, or is it just not being picked up?

Richard Robinson: I think there is a fundamental misunderstanding around what the abuse of older people is, and that has been borne out by a number of research papers that we have written, some working with YouGov, for example. Likewise, as I said, it is also a question of understanding what coercion is and getting the older person to open up, to help them to understand and to trust the person they are talking to.

We fully believe that there is nowhere near enough training and understanding across the medical profession and the judiciary around understanding the signs of abuse or coercion. Even though we completely welcome the new law on coercive control in the Domestic Abuse Act 2021, we have not seen a significant change. If anything, we as a charity believe that there is an epidemic of abuse against older people at the moment. Some of it is due to the economic climate that we are in, with people just wanting to have their inheritance now, and some of it is due to the fact that older people feel like a burden. You mentioned Oregon: of course, there is also the statistic that 48% of people who went down the assisted dying route in Oregon cited being a burden as part of their decision-making process.

I think that the abuse of older people in this country is vastly underplayed. I have mentioned the 75,000 impacts that we see and the 2.6 million people affected by it, but we have to fight for headlines and for understanding in every sector of society. It is seen as a minority issue, and it is really not. It is not a niche issue, and it is growing.

That does not mean that we as a charity are against the assisted dying Bill. If anything, we are pushing towards a safer ageing society. We would like to see a safer ageing society by 2050, and we believe that older people as a demographic should have an independent choice of what they want to do. That fits within our safer ageing society viewpoint. However, safeguarding is at the very heart of this. Until society can take the safeguarding of older people more seriously and look at training around abuse in the same way as with other forms of abuse and neglect, there is a much broader question to be asked.

[Sarah Olney (Richmond Park) (LD)]

Q Professor House, concerns have been expressed in written evidence that an assisted dying Bill of this sort is incompatible with wider policy around reducing suicide or suicide prevention measures. Do you think that it is possible to implement effective policies to reduce suicide rates, while having an assisted dying Bill at the same time?

Professor House: It is a challenging question, isn’t it? A lot of it is based on interpretation of far-from-definitive evidence. A starter would be to observe that we would have to change our national suicide prevention strategy, because at the moment it includes identifying suicidal thoughts in people with severe physical illness as something that merits intervention, and the intervention is not an intervention to help people proceed to suicide. So the answer to your question, to some extent, is “Yes, it is going to change our approach to suicide prevention.”

The wider question is whether it will change both the medical approach and society’s approach to suicide prevention in general if we start saying, “We don’t like suicide and we want to do something about it, except in some groups of people.” You may know that Professor Louis Appleby in Manchester, who leads the national confidential inquiry into suicide, is concerned about that. The best I can say on the international evidence is that there is no evidence that introducing this sort of legislation reduces what we might call unassisted suicides.

[Sarah Olney]

Q There is no evidence that it reduces it, so it continues at the same rate: it does not increase, and it does not reduce. Is that what you are saying?

Professor House: Well, it increases, but there are so many factors. I will give you one example. Oregon has been widely cited as a model for this sort of thing, although people have been a bit more uncertain in recent times. At the time that Lord Falconer introduced his Bill in the Lords in 2014, Oregon was cited as a place where levels had stayed much the same—not of suicide, but of people receiving assisted dying. In the decade since then, the number of people going through the assisted dying programme has gone up 500%, and the number of suicides has gone up 20%.

[Naz Shah (Bradford West) (Lab)]

Q Professor House, you have said that people applying for assisted dying may be in a state of vulnerability. What is vulnerability and how can the Bill be amended to make sure that vulnerable people do not inappropriately choose assisted dying?

Professor House: Vulnerability is not just an inherent characteristic of individuals. It is the presence of these external factors, circumstances, and internal factors, state of mind, that influence and bias somebody’s thinking about whether their life is worth continuing with and whether they want to end their life. Its importance is that exploring those factors and considering what can be done to ameliorate them can lead to a change of mind. If we do not explore those factors and we do not attempt to ameliorate them, we are losing an opportunity to change the mind of people who may rethink their desire to end their life.

Why I think of it as a vulnerability, rather than just as factors that influence a rational decision, which feels rather like how it is considered in the Bill, is that the emotional tone of the discussion that you have with people about all those factors is negative. 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. The worry is that because there is nothing in the current medical assessment that requires a careful exploration of these factors, there is really no opportunity to change them.

--- Later in debate ---

[Tom Gordon]

Q My questions are to Dr Graham and Lord Sumption. The Bill, in its current form, has several opportunities for confirming capacity and whether the people who want to take up assisted dying have the capacity to do so; there are a number of safeguards and steps within it. That is more than is typically required for any other end-of-life decisions. I wondered whether you would comment on that. Is the Bill safe enough in its current form? If not, what other steps could be added?

Dr Graham: The only thing I would feel comfortable saying is that, yes, I agree with you that the Bill does contain further safeguards, more safeguards, than some of the other legislation in European countries. The legislation in those countries has been held to be compatible with the right to life and with other rights under the European convention. From a pure human rights perspective, which is all I feel qualified to comment on, I think you are on very safe ground.

Lord Sumption: I take exactly the same view. We must all be conscious of the fact that coercion, even when it is overtly applied, is extraordinarily difficult to detect: the kind that Baroness Falkner described a few moments ago as the subtle pressures that old and disabled people—in fact, people who are very sick generally—will feel without the need for any pressure. That spontaneous feeling of pressure is, I would have thought, practically impossible to detect. We have to live with the limitations of what human beings can do. In the end, I have come down in favour of the principle behind the Bill, but I regard it as an extremely difficult balance to draw—notably, for that reason.

[Sarah Olney]

Q Baroness Falkner, do you consider that in its current form the Bill upholds the rights of all the different groups whose rights are protected under the Equality Act 2010?

Baroness Falkner: Several human rights are engaged in the Bill: article 2 has been discussed; article 3 relates to inhumane and degrading treatment; article 8 is the right to privacy; article 9 is about freedom of thought, conscience and religion; and of course there is article 14, which has been discussed. They are all engaged at different levels of the Bill, and they are important and serious considerations. We are not clear, at this point in time, that the reservations we have about them can be resolved without further changes to the Bill.

[Sarah Olney]

Q Can you give me an example of one of your reservations?

Baroness Falkner: Yes. For example, you have just been discussing capacity, and capacity is a very serious consideration in our concern. You have been discussing coercion as well. There is evidence—coming back to the UN report I mentioned a few minutes ago—that the special rapporteurs on persons with disability and on human rights were very concerned. As Lord Sumption has said, when we have unclear law, it is very hard to understand the extent to which—when it comes to the definition of terminally ill, of coercion, of capacity—judges should have exemptions on, for example, conscientious grounds.

There is a whole host of other areas: regulations, for example. I think the Bill calls for regulations to be laid within five years—an assessment of the measures of the Act to be laid within five years. We wonder why the Government cannot even now, as the Bill is going through, do an impact assessment and a human rights conformity assessment to draw out all those concerns in a more effective manner. It is not too late for the Government to do that. We would suggest that consideration be given by the whole of Government to doing an assessment of those human rights implications, working to cover this Bill as they would cover a Bill that they had proposed themselves.

We are not entirely clear that a private Member’s Bill is a suitable vehicle for this issue, to be entirely honest. I may not be well informed enough, but I cannot remember a private Member’s Bill of such import going through since, perhaps, David Steel’s Abortion Act 1967. There may be other instances of a Bill of that import, but they do not come to mind right now. We look at the import of the Bill and at the fact that it has not been, sui generis, designed for England and Wales; it borrows quite a lot from other jurisdictions, although the number of jurisdictions that have passed similar laws is still relatively limited.

Were this a Government Bill or a Government-sponsored bill, even at this late stage, it could have a whole of Government approach to looking at the different aspects that are engaged: disability rights; older people’s rights; the fact that ethnic minorities have very differential attitudes to some of these things; cultural rights. That would be a better place for Parliament to engage with this profoundly important issue—on which, I should add, we are neutral, in the sense that we can point to the practical problems with the Bill, but we do not take a position on whether the Bill is right or wrong in what it is advocating. We are coming to it more from a process and improvement point of view.

Fazilet Hadi: Could I just add to that?

[The Chair]

I am sorry—just bear with me. Seven people wish to ask questions, and we have just half an hour. If you do answer, can it be very succinct if possible?

Fazilet Hadi: Thank you. I just wanted to support the Baroness, and also say that we believe the Bill will pose a challenge to protected characteristics, particularly of disabled people—and indeed other groups, because disabled people are LGBTQ+ and are black and minority ethnic. The equality journey for disabled people is relatively recent in this country. The Disability Discrimination Act was only passed in 1995, and the Equality Act was only 15 years ago. We are a country that is unequal—that has internalised ableism against disabled people—so I do think the Bill will have a serious and profound negative impact against the valuing of disabled people’s lives.

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

Sarah Olney Excerpts

Committee stage
Wednesday 29th January 2025 Public Bill Committees

[The Chair]

Dr Griffiths, do you want to add to that?

Dr Griffiths: This issue highlights a fundamental flaw with the Bill, which is the nonsensical division between a terminal illness and what constitutes being a disabled person. Section 6 of the Equality Act 2010 states that a disabled person is somebody who has a “physical or mental impairment” and the impairment

“has a substantial and long-term adverse effect”

on their

“ability to carry out…day-to-day activities.”

If you have a terminal illness, it is likely that you will be defined within the terms of what is outlined in section 6, so it is a fundamental flaw, because disabled people will be incorporated within this.

The issue also highlights this arbitrary nonsense about a six-month perspective. What constitutes six months left to live, particularly if you are engaging with technological devices, medical assistance and so on? For example, I have a progressive condition that continuously makes me weaker and has respiratory complications and so on. If I remove the ventilator that I use at night, if I remove my other medical devices and if I stop my engagement with therapeutic services, does that constitute me having a terminal illness, because my rapid acceleration towards death becomes more evident?

These concerns highlight fundamental flaws, but they also play into what a key issue: the campaigning that will continue after the Bill, if it is to succeed. You will get people who will say, “Why not five months, or seven? Why not other conditions that are not being highlighted in our current discourses?”

[Sarah Olney (Richmond Park) (LD)]

Q Dr Griffiths, do you think it is possible that disabled people are likely to be or potentially more at risk of being coerced or otherwise persuaded to seek assisted dying as a result of the Bill?

Dr Griffiths: I think so—I think the coercion principles outlined in the Bill are incredibly weak in terms of the scrutinising and the process of how you judge whether coercion has taken place. We know that coercion is a complex issue, but put that against the context of disabled people’s lives; we are talking about disabled people who are struggling day to day to access sufficient support and to live in participatory, accessible societies. The feeling, then, of societal coercion—the feeling that this is a tolerable idea—highlights my concerns about coercion.

It also plays into the issue of support and assistance to understand what your rights are, not just in terms of what we are talking about here but broader disabled people’s rights. There is a lack of advocacy services available to disabled people, and there is a lack of support for disabled people to have accessible information about their rights. If you feel that assisted dying is your only choice—as opposed to accessing support or calling out discriminatory practices in, say, access to social care and healthcare—that highlights, again, situations where coercion will manifest. The infrastructure to support people either to respond to coercion, or to understand that they do not have to be in that position in the first place, is non-existent.

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

Q One of the things that we have heard from other countries that have assisted dying is that this is one of the strongest and most robust laws. I wonder whether Professor Shakespeare has any more views on how we could make the Bill even tighter, and provide support and further peace of mind to people who might be worried about it?

Professor Shakespeare: When I read the Bill, I thought that it did have many safeguards. It has, for example, five opportunities for a conversation with doctors or other supporters. That is a good safeguard. I think it makes a criminal offence of dishonesty, coercion or pressure, so that would scare off people. Miro is quite right—there are people who might put influence on somebody, but I hope that they would be covered under clause 26 as having committed an offence. That would scare people who may have a particular view against assisted dying.

How can we make it stronger? We could have more of an advocate for the person who is requesting assisted dying—somebody who will support them, within the law, to make that decision or to think about their decision. We are trying to make sure that everybody who is thinking that this is for them has the opportunity to talk about it and to think about it. The time and the conversations are all about that, but maybe an advocate also would be the person who is requesting this step, who is not a beneficiary in any way of that death, and they could be a neutral party to give advice. I am not sure. However, there is a lot here. There are five conversations. I am not surprised that people thought it was strong. I think it is a strong Bill.

There is scope for doctors and other medical practitioners to act on their conscience and to withdraw from this. Miro made a useful point, which is that we do not want any disabled person frightened of their doctor or worried that their doctor, who has been supporting somebody else to die, might do that with them. In conversation, Marie, we have talked about an assisted dying service as being a part of the NHS, but I wonder whether it might be specifically around this. I think that it is worth considering whether the average doctor is the person to whom a person should take a concern or a wish to die.

So this is about advocacy and maybe having a specific service for people who want to go down that route. However, I think it is a strong Bill as it stands.

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

Sarah Olney Excerpts

Committee stage
Thursday 30th January 2025 Public Bill Committees

[Kim Leadbeater]

Thank you so much.

Pat Malone: My experience with my father was entirely different. My daughter, who was seven at the time, reminded me recently, when I was putting my thoughts together for this, that in his last weeks she had visited him, and I had taken her into a side room and told her not to expect to see the grandpa that she knew, because he was very, very ill and he did not look anything like she would expect. She said she was very thankful that I did that, because she was stunned and shocked when she saw him. He was like a 1,000-year-old corpse, he was moving, and his eyes were yellow, and that is how she remembers him—she does not remember any of the good times. My sister, who lived close by, was with him most of the time, and she just sat by his bed and prayed for his heart to stop.

We were all shell-shocked when he did finally die. As I say, that informed the decisions that were made about suicide by my sister and brother. Had he been a farm animal, we would have been prosecuted for causing unnecessary suffering, but he was a man so he was not entitled to that sort of consideration. I remember him in that horrible ward breathing his last. The only time he moved in the last days was to cough up blood. For a man who had asked to be relieved of that burden, who had asked for an act of mercy, a week before, and it had been denied him—I cannot understand how anybody would deny a dying man a deliverance.

When my brother died, he and my sister-in-law had been together since they were 11 years old. He was only 53, so they had already known each other for 40 years. She had shared his suffering while he was being driven around the country looking for diagnoses and, ultimately, looking for doctors who would help him commit suicide. His weight had gone from 18 stone to 8 stone, and he was bright yellow as well. He was suffering all the time and she was suffering with him. She was relieved as well as grieving when he actually died—and then the police were at the door. The investigation went on until his inquest eight months later. The police were as helpful and sensitive as they could possibly be. Vicky got the impression that they wanted her to give the wrong answer—when they said, “Did you know what he was going to do?” she said, “Yes, I did”; to “Could you have stopped him?” she said, “Yes, he was weak as a kitten”; and to “Could you have resuscitated him?” she said “Yes,” because she had had some nursing training, and so on—and with every answer they just collapsed a little bit more.

Ultimately, at the inquest there was an anomaly in his suicide note. It was written in two different colours of ink, and the police investigated whether it could have been written at different times, possibly by different people. Giving evidence at his inquest, the police said that they thought his pen had run out—there was a squiggle at the top where it changed from black to blue—and they said that they were not proceeding with any idea that there had been positive involvement in his suicide.

I have a note of the transcript of what the coroner said, which reads: “I don’t want to make any more of this than I absolutely have to. I simply record therefore that Michael Malone took his own life. He did so quite deliberately and having made appropriate preparations, and so it’s not a case of my saying that he did so while the balance of his mind was disturbed, because it clearly was not. It was a decision that he took and I have every sympathy with that decision in so far as a coroner is allowed to say that.”

The police were very sympathetic. The coroner was very sympathetic. Danny Kruger is very sympathetic. But sympathy only goes so far, and I am glad that this Committee is now looking at exactly the people who matter first in this issue, who cannot be here to talk for themselves.

Liz Reed: In answer to the first point, about anything we would change or do differently, I think actually my brother’s case was dealt with really well and there were checks and balances along the whole way: “Does he meet the eligibility criteria?”—obviously—“but also, does he want to?” His wife was involved in the process with him, and he was checked constantly. A doctor administered for him, and he had met him already. He knew him and had a rapport with him. He had a few jokes with him at the end. So from that perspective, I do not think so. It is slightly different in Australia, in that it does not have to have a High Court judge, so the process feels a bit more streamlined than it is here, and maybe the access would be slightly different because of that.

In terms of the grief, I think anyone that knows someone who has been through a terminal illness knows that there is a level of anticipatory grief that comes with that—the waking up every morning thinking, “Has it been tonight? What happens next? What’s today?” Because when someone is in the final stages of their life, which my brother was, there is always something every day: “Oh, he’s got to have fluid drained from his heart today,” or, “Oh, this has happened.” There is always something, so that grief starts coming on before the person has even died.

The day my brother died we sat outside in the courtyard and had a glass of champagne. He chose a Bob Dylan song that he wanted to die to. It was extremely peaceful. It was seconds. And he got to say all the things, have all the conversations, speak to our parents—that sort of real American “closure”. That is what he got, and we were not sitting around thinking, “I wish I’d said this. I missed it,” or, “I was off doing something with the kids.” We were all there: my mum, my dad, me, his wife. We sat there and held his hand—and what a gift.

[Sarah Olney (Richmond Park) (LD)]

Q Thank you all for coming today and for sharing these really personal recollections. I have one question, but to both Liz and Julie, if that is okay. According to the notes that I have here—apologies if I have got this wrong—in both your brother’s situation and your husband’s situation, it was administered by the doctor. The Bill proposes that the person who has made the choice about ending their life should self-administer a solution. I am really sorry if this causes you any distress, but, on reflection, do you think that a self-administration regime would have made a difference?

Liz Reed: I do not think so, no. I do not think it would have changed his mind. I am someone who is real squeamish, so I probably would not want to, because of how I feel about all that kind of stuff, but it would not have changed anything for him—no, absolutely not. But I think there is a comfort in having a doctor there administering that, “This is going to go as it should,” and there is a calm that comes with that.

Julie Thienpont: Guy being intensely private, as I mentioned before, he would have preferred less people around him at the time. There were two nurses, the family doctor and the administering doctor. They prepared the scene and put the drips in—they had to put one in each arm—and they had to be there in order to witness the whole thing. He would have preferred to have been able to do it himself, but I do not think the fact that it was administered by somebody else impacted in a negative way for him.

[The Chair]

Pat, I think you wanted to say something.

Pat Malone: Yes. My sister died under the Swiss method, which meant self-administering a cup. She had motor neurone disease, and she was slowly losing the use of her limbs. She went earlier than she needed to because she wanted to be sure that she would be able to swallow and lift her arm. She could probably have put it off for some months—an indeterminate period—but she died before she needed to in order to be sure that she could self-administer.

[Sarah Olney]

Q The Chair has given me permission to ask a very quick follow-up, Pat, since you mentioned that. I am really sorry to ask this, but do you think that if it had been administered by a doctor, she would have chosen to live for a little longer?

Pat Malone: I cannot speak for her, but there were many, many problems. Bizarrely, the last package of documents that she sent to Dignitas got caught up in the postal strike, and they were all irreplaceable original documents. I do not know if you remember, but around that time—this was the winter of 2022-23—there was a postal strike, and it particularly affected international mail. For nine weeks, the documents were held up in a sorting office, and they could not find them. She was getting more and more concerned, because her horror was that she would miss that deadline. In actual fact, Dignitas agreed that in the final analysis she could hand carry the last of the documents she needed when she came to Switzerland, and she was still able, but her horror when she thought she was going to miss the bus was quite palpable. Yes, if a doctor had been able to do it, she might well have chosen that option.

[Sarah Olney]

Thank you for answering that.

[Dr Opher]

Q I have been fascinated by this discussion, so thank you all. It strikes me that we have spent a number of days looking at the other end of this, if you like—coercion and capacity and that sort of thing—but I am concerned that we had a judge with Parkinson’s who would not be allowed through this, like your sister with MND. I just think we should consider as a Committee whether we need to make any amendments on these things, and also on self-administration. I wondered whether you thought we should widen the Act. I presume you have read some of it, at least.

Pat Malone: As I mentioned to Mr Kruger, I am loath to meddle in any way with the Bill. I think that as it is the Bill is the best we can do at this time.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Sarah Sackman)]

Q To be clear, I am here as a Government Minister on this Committee, and the Government are entirely neutral on the Bill, so we do not take a position on the substance of the issues you have raised. Clearly, the draft Bill is intended to apply in both England and Wales, as you say, and your note is extremely helpful in highlighting some of those issues that will need to be worked out. As a Government, we will work closely with the Welsh Government to assess the legalities and practicalities of any potential changes to the law.

You have highlighted in particular the distinctions between health law, which is a devolved matter, and the law on suicide, which currently is not devolved. On the first page of your written evidence, you draw out clauses 32, 31, 33 and 34 in particular as issues that we should focus on in ironing out those legalities. Is there anything else you want to add to that that you think that we as a Government should focus on in our work consulting with the Senedd?

Professor Lewis: I think it is important that both Governments understand how the implementation of what will be a pretty radical change in the law will happen on the ground within the health service and among those who are responsible for delivering social services. I am thinking of issues such as adult safeguarding, which in Wales has its own specific law and is slightly different from the arrangements in England. There are those kinds of nuances between the two territories, and I think it would be prudent to focus on them.

I also think it is wise to bear in mind that Wales has certain statutory bodies whose interests might extend to the Bill. For example, there is the Older People’s Commissioner for Wales, in particular; there is the Future Generations Commissioner for Wales as well. I think it is important that there is some forum, some scope, for those people also to be involved in how this is shaped.

[Sarah Olney]

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

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

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

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

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

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

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

[Dr Tidball]

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

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

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

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

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

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

Sarah Olney Excerpts

Committee stage
Tuesday 11th February 2025 Public Bill Committees

[Stephen Kinnock]

I am on the Committee as a Member of Parliament and I vote as such. When I speak on the Committee, I speak as a Government Minister in order to provide factual and technical explanations. As the Bill is a matter of conscience, I will be voting with my conscience on all the amendments as they come forward.

The amendments that we are now debating have been tabled by my hon. Friend the Member for Spen Valley in consultation with the Government. They relate to the location of the person seeking assistance under the Bill and are designed to ensure that the service can only be accessed by an individual present in England and Wales, with a view to preventing medical tourism.

I will take the amendments in turn. Amendments 178 and 193 would ensure that only a terminally ill person in England or Wales may be provided with assistance in accordance with the Bill. Further to that, a requirement is placed on the co-ordinating doctor to ascertain whether, in their opinion, the person who made the first declaration is in England and Wales as part of their first assessment. Amendment 179 would limit the assistance that may be provided in accordance with the Bill to assistance in England or Wales only. Amendment 180 would require the steps taken under clauses 5, 7, 8 and 13 that relate to both declarations and both doctors’ assessments to be taken by persons in England or Wales.

Amendment 182 would limit the provision of clause 4(3), where a person indicates to a registered medical practitioner their wish to seek assistance to end their own life, to cases where the person is physically present in England or Wales. It would prevent people who are outside of England or Wales from accessing assistance in accordance with the Act—for example, by online consultations from abroad.

As I said earlier, the Government will continue to remain neutral on the substantive policy questions relevant to how the law in this area could be changed. That is, as I have made clear, a matter for the Committee and for Parliament as a whole. However, I hope that these observations are helpful to Members in considering the Bill and the amendments tabled by my hon. Friend the Member for Spen Valley.

Amendment 178 agreed to.

[Sarah Olney (Richmond Park) (LD)]

I beg to move amendment 34, in clause 1, page 1, line 4, leave out “capacity” and insert “ability”.

This replaces the concept of capacity based on the Mental Capacity Act and replaces it with a new concept of ability which is defined in NC1.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 36, in clause 7, page 4, line 7, leave out “capacity” and insert “the ability”.

This amendment is consequential on Amendment 34 and NC1.

Amendment 37, in clause 8, page 4, line 34, leave out “capacity” and insert “the ability”.

This amendment is consequential on Amendment 34 and NC1.

Amendment 38, in clause 9, page 6, line 27, leave out “capacity” and insert “ability”.

This amendment is consequential on Amendment 34 and NC1.

Amendment 202, in clause 9, page 6, line 31, leave out “capability” and insert “capacity”.

This amendment corrects a typographical error.

Amendment 39, in clause 9, page 6, line 31, leave out “capability” and insert “ability”.

This amendment is consequential on Amendment 34 and NC1.

Amendment 40, in clause 12, page 8, line 2, leave out “capacity” and insert “the ability”.

This amendment is consequential on Amendment 34 and NC1.

Amendment 41, in clause 13, page 9, line 31, leave out “capacity” and insert “ability”.

This amendment is consequential on Amendment 34 and NC1.

Amendment 42, in clause 18, page 12, line 23, leave out “capacity” and insert “the ability”.

This amendment is consequential on Amendment 34 and NC1.

Amendment 43, in clause 30, page 18, line 16, leave out “capacity” and insert “the ability”.

This amendment is consequential on Amendment 34 and NC1.

Amendment 44, in clause 40, page 23, line 26, leave out from “capacity” and insert “ability”.

This amendment is consequential on Amendment 34 and NC1.

New clause 1—Ability to make decision—

“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 in accordance with regulations made by the Secretary of State under affirmative resolution.”

This new clause defines the concept of ability which is intended to replace the concept of capacity. This new clause is intended to replace clause 3.

Amendment 45, to schedule 2, page 26, line 36, leave out “capacity” and insert “the ability to make a decision”.

Amendment 46, to schedule 3, page 28, line 1, leave out “capacity” and insert “the ability to make a decision”.

Amendment 47, to schedule 5, page 30, line 14, leave out “capacity” and insert “the ability to make a decision”.

[Sarah Olney]

It is a pleasure to serve under your chairmanship, Ms McVey. I thank the hon. Member for Spen Valley for her opening remarks. I am grateful to be called so early in proceedings, because I believe this is one of the really important issues before us. It is about whether or not somebody

“has the capacity to make a decision to end their own life”

as is stated in clause 1(1)(a). I believe that the word “capacity” in this context is potentially difficult to define. I note that in clause 3, all reference to mental capacity is assumed to refer to the Mental Capacity Act 2005, but I do not believe that that is sufficient for the purposes of the Bill. We heard plenty of voices to support my point of view during the oral evidence, so I want to reflect on that.

I think there are four separate concerns about using the Mental Capacity Act 2005 to judge capacity. The Royal College of Psychiatrists submitted its original written evidence in January, which we have all had sight of, and it said:

“Under the Bill as introduced, a person with a co-occurring mental disorder that is impacting their wish to end their own life would not necessarily be deemed ineligible; only those whose mental disorder was deemed to impair their capacity to make a decision to end their own life would be excluded.”

That means that an individual could have a terminal illness and also separately have a mental illness, such as depression; that would affect their ability to make a decision as to whether that terminal illness was sufficient for them to ask for assistance with dying.

--- Later in debate ---

[Daniel Francis]

The Mental Capacity Act is written to enable people to carry out day-to-day scenarios, such as buying a coffee or doing their banking, so that they are not challenged in every transaction in their life. It is therefore a very low bar to be deemed to have capacity. Does the hon. Member believe that it was written for this kind of scenario?

[Sarah Olney]

That is an absolutely relevant point. The Mental Capacity Act was not drafted in anticipation of it ever being used for this kind of scenario. Therefore, it is really incumbent upon us to weigh very carefully whether the Mental Capacity Act is the right way of assessing people’s ability to make this decision. As I was saying, it includes the presumption of capacity, and for a decision to end one’s life, an assumption of capacity to make that decision is a low bar, and we have lots of evidence.

[Danny Kruger]

I am interested in that point about the Mental Capacity Act not having been written with the Bill in mind. That is absolutely true for the minds of its framers and the Parliament that passed it at the time. It is worth noting, however, that we can see from the accounts and records of the Voluntary Euthanasia Society, which became Dignity in Dying a few years later, that it was lobbying at the time covertly—or behind the scenes—for the Mental Capacity Act to be framed in exactly that way. The Voluntary Euthanasia Society was very conscious that, when the time came to pass the law for assisted suicide, it would be very helpful to have a capacity Act on the statute book that had this very low bar. The society was delighted when the Act was passed in the way that it was, and it boasted at the time of the influence it had had on the Act.

[Sarah Olney]

That is a very interesting intervention. I cannot comment on that because I have no knowledge of how the Mental Capacity Act was drafted or the evidence that was taken.

[Dr Simon Opher (Stroud) (Lab)]

I do believe that the Mental Capacity Act enables people to make very serious decisions, such as stopping cancer treatment, so I would absolutely dispute the hon. Lady’s interpretation of it.

--- Later in debate ---

[Sarah Olney]

The hon. Gentleman puts his finger on the exact point: it allows people to make a decision about whether or not they want to continue treatment; it has not been used in this way before, and it was not intended to be used for that purpose. I understand the hon. Gentleman’s point: he was trying to say that to stop treatment is akin to making a proactive decision to end one’s life, but I would argue that it is not, and that is why the Mental Capacity Act is unsuitable for this purpose.

It was interesting to reflect on the oral and written evidence we received on this issue. Professor Sir Chris Whitty, the chief medical officer, stated in his oral evidence:

“Issues…around mental capacity…are dealt with every day…every doctor and nurse above a certain level of seniority should be able to do that normally. It may require some slight adjustment.”

He acknowledged that

“the more serious the decision, the greater the level of capacity that someone needs to have.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 30, Q13.]

However, the Royal College of Psychiatrists said that

“an assessment of a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding.”

[Sean Woodcock]

During the oral evidence, we heard from three sets of psychiatrists who all cast doubt on the suitability of the Mental Capacity Act for decisions such as assisted dying. Is the hon. Lady’ s amendment an attempt to alleviate those doubts and put that right in the Bill?

[Sarah Olney]

Yes, that is exactly what I am aiming to do. The hon. Member makes an excellent point. There is a wide variety of views on this, but in actual fact, much as I do not wish to question Professor Sir Chris Whitty, and I acknowledge his seniority as the chief medical officer, he was very much the outlier on this. Everybody else who gave evidence on the sufficiency of the Mental Capacity Act to determine someone’s capability to make this decision for themselves cast doubt on the idea that the Mental Capacity Act was the right way of doing it.

[Kim Leadbeater]

That is not quite accurate. I think we did have other witnesses who absolutely said that they had confidence in the Mental Capacity Act, and I will speak about them in this debate.

[Sarah Olney]

I look forward to the hon. Lady’s further comments, but as I said, the psychiatrists were very clear that they did not believe that this was a sufficient safeguard, and we should acknowledge that.

I was unable to put my question to Alex Ruck Keene KC during the oral evidence session, but he kindly agreed to give further evidence in writing in response to a letter I sent to him later that day. That exchange of letters has been published as written evidence. It was his position that, in actual fact, Professor Sir Chris Whitty misinterpreted the Mental Capacity Act when he gave evidence. There is no such requirement in the Mental Capacity Act that states that the more serious the decision, the greater the level of capacity that someone needs to have. Mr Ruck Keene’s view is that that was the common law prior to the Mental Capacity Act coming into force, whereas in actual fact the Mental Capacity Act does not require that the more serious the decision, the more capacity someone needs to be judged to have.

[Jake Richards (Rother Valley) (Lab)]

I am sympathetic to the problem the hon. Lady has identified of people who have a terminal illness as well as other mental health conditions. Instead of rewriting the Mental Capacity Act for this new context, would it not be better to secure safeguards through clause 9, through which further assessments are potentially going to be mandated, if the amendment from the hon. Member for St Albans (Daisy Cooper) is agreed to, for those cases where there is doubt as to capacity? That would add a further safeguard rather than rewriting the established Mental Capacity Act and case law.

[Sarah Olney]

I have no intention of rewriting the Mental Capacity Act. It should stand exactly as it is and be used for the purpose for which it is intended. That is not the intention behind my amendment, which merely proposes that we should assess people’s ability to make the decision and not just their capacity. Many of those who provided evidence demonstrated that merely testing somebody’s capacity to make a decision is insufficient in this case.

[Dr Opher]

We also heard evidence that if we make this more complicated and introduce more terms into the Bill, then there will be less safeguarding for patients. That is why we are all here: we are trying to make this Bill safe for patients seeking assisted dying. Changing it from the Mental Capacity Act will make it less safe.

[Sarah Olney]

I heard Sir Chris Whitty in particular say that it would be preferable to have a more straightforward Bill that did not have too many bureaucratic hurdles for people to overcome. That was why he was keen for the Mental Capacity Act to be retained. However, I tabled the amendment precisely because, when people are thinking about whether assisted dying is an appropriate decision for them, I do not think that it is safe for them to be judged merely on the basis of their capacity. It is by no means my intention to increase bureaucracy; I am merely proposing that the Act is not sufficient in this case.

[Naz Shah]

Three psychiatrists gave evidence to the Committee in person: Professor Allan House, Dr Annabel Price, of the Royal College of Psychiatrists, 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. Does the hon. Lady agree that we should place great weight on the opinion of psychiatrists when assessing whether the Act should be used to assess applicants for assisted dying? It is a horse before the cart scenario, because the Act was not made for this context; when it was passed, we were not talking about the ability to choose to die.

[Sarah Olney]

I agree exactly with the hon. Lady’s point. The Act was not designed for this purpose, and it is essential that we carefully scrutinise whether it should be used in this way.

[Rebecca Paul]

Will the hon. Lady give way?

--- Later in debate ---

[Rebecca Paul]

I welcome the hon. Member’s attempt to improve safeguarding in the Bill, which I agree is currently not at the right level. Does she agree that the Mental Capacity Act assumes in the first instance that, if there is no evidence to the contrary, a person has capacity, and that whether a person lacks capacity must be decided on the balance of probabilities? Unwise decision making does not indicate a lack of capacity, and supported decision making is considered to be acceptable. We need all to be clear that that is what the Act says.

[Sarah Olney]

The hon. Member is absolutely right. That would be another weakness of the Mental Capacity Act being used in this context: if someone is judged to have capacity, they are free to make an unwise decision, yet there is nothing in the Bill to provide a safeguard against people who might have capacity and make an unwise decision because their thinking has been obscured by mental illness, depression or something else.

[Jake Richards]

I have a few questions for the hon. Member. Who does she propose will decide whether a decision by someone who has capacity is wise or unwise? Does she also propose changing the law around patients’ refusing life-saving treatment? Should that be handled under the Mental Capacity Act, as it is at the moment?

[Sarah Olney]

I am grateful to the hon. Member for his intervention, but I am not proposing to change any legislation other than the Bill before us. All the other legislation to which he refers should remain precisely as it is, and for the purpose for which it was intended. He asks who is to say whether someone is making a wise or unwise decision; that is the job of the people who are instructed to provide assessments under the Mental Capacity Act. As was clear from my response to the hon. Member for Reigate, if someone has been assessed as having capacity, there must not be any further interference in their decision-making process, even if there are distinct concerns that that person may be deciding to end their life not purely because of their terminal illness but because they are suffering from depression. There is no other mechanism in the Bill to enable that further safeguard.

[Dr Opher]

I use the Mental Capacity Act almost every week in my work. As Chris Whitty said, in the majority of cases, whether someone has capacity is clear and indisputable. For a narrow proportion of people, it is more difficult to decide. The Bill takes account of that by using a panel to decide on those difficult cases of capacity. I would insist that most cases are very straightforward.

[Sarah Olney]

I have to ask the hon. Gentleman to clarify that. When he says he uses a panel, is he referring to the new amendment that has been proposed? I have not seen it yet and cannot comment on it, and have no idea if it will be adopted.

[Dr Opher]

If we are not sure about capacity, we must refer to psychiatry, so that a specialist organisation can make a more detailed assessment. However, most people do not fit into that category. Most people clearly have not got capacity or have got capacity, so this is a very narrow cohort.

[Sarah Olney]

If I may say so, the hon. Gentleman’s intervention precisely illustrates what other hon. Members were raising as points of order earlier. How can we properly scrutinise the legislation when new amendments are being tabled at the last minute that potentially change the entire nature of the legislation that we are attempting to scrutinise? It is very difficult then to speak about the amendments that have already been tabled.

[Danny Kruger]

Further to that point, the hon. Lady responded to the hon. Member for Stroud, who suggested that a doctor must refer to a psychiatrist in the event of concern over capacity. There is no such obligation in the Bill. There is the opportunity to do so—the second doctor may do so, if they choose—but there is no such obligation. That is something that we could definitely improve.

The hon. Member for Stroud, who is a GP, says that it is always obvious to him when there are issues about capacity. I assume he might think the same about coercion. I wonder if the hon. Lady is aware that one in six older people are subject to abuse—elder abuse. Does she think that the hon. Member for Stroud always spots the one in six of his older patients who are subject to abuse?

[The Chair]

Order. I remind everybody to stay within the scope of what we are talking about, which is capacity.

[Sarah Olney]

On that note, I will probably not respond to the hon. Gentleman’s comments about coercion, but I will pick up on what the hon. Member for Stroud said about using the Mental Capacity Act every week. I think that probably makes him unusual among MPs, if not GPs. I personally have no experience of using the Mental Capacity Act, which is precisely what gives rise to my anxiety. We in this room need to properly understand what the Mental Capacity Act means, yet most of us do not have the experience that he has in applying it. However, we are all collectively responsible for ensuring that the legislation is framed properly. I can only go on the oral and written evidence that we have received, and I am paying serious attention to all those who have said that they do not think that the Mental Capacity Act is sufficient. I lack the direct experience that the hon. Member for Stroud has of those matters, and that is the best that I can do.

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

We are discussing the balance of autonomy against considerations such as capacity and coercion. The Mental Capacity Act 2005 has been in existence for 20 years, so it has the advantage of being familiar. Would the hon. Lady agree that if we were to bring in clinical views from different professions, such as from doctors, social workers and psychiatrists, we would have different definitions in place, which would address some of the concerns about different applications?

[Sarah Olney]

That is an extremely wise observation. I regret enormously that there was not more opportunity, before the legislation was drafted, to have those discussions between experts, advisers and others who really know what the Mental Capacity Act means and whether it is sufficient for this purpose. The best that we can do now is reflect on the evidence that we have received. In many ways, that is what I am hoping to address with my amendment: to redefine “capacity” as “ability”, to transfer the responsibility for defining how ability should be assessed under the Act to the Secretary of State for further analysis and consultation, and then for that to be laid out properly.

When assessing people’s ability to make the decision, we want to take into account their ability to understand, retain, use and weigh information, and to communicate the decision. That will still be at the heart of an assessment of whether an individual is making the decision for the right reasons. A whole range of things might affect a person’s ability to make the decision. I have mentioned many times mental disorders such as depression, which is more common in people nearing the end of their life. Delirium, which is common in people with advanced illnesses, needs to be assessed. There is the complexity of people who have a physical terminal illness alongside a mental disorder; I think particularly of people suffering from an eating disorder, which is primarily a mental health condition but clearly has physical health implications. If the mental health condition is not treated or is resistant to treatment, the physical manifestation of the eating disorder can quickly become a terminal illness. That is a really important point that we need to reflect on.

The feelings of hopelessness that may come alongside a diagnosis of terminal illness may affect a person’s ability to weigh information. Anxiety can amplify their fears of future suffering, and types and doses of medication can affect capacity. All sorts of people can suffer vulnerabilities from external factors such as the lack of realistic alternatives like palliative care services; overt or implicit coercion; personal losses including bereavement; poor housing; financial hardship; and loneliness and social isolation. Understanding and responding to those vulnerabilities is at the centre of suicide prevention, but absent from the Bill.

We have to remember that the Bill would apply to people who are said to be within months of death but may not be, to those who may die within months but otherwise have a very good quality of life, and to people whose trajectories to death vary greatly. In his written evidence, Professor Allan House states that

“careful inquiry is justified because a statement about wanting to end one’s life cannot be simply taken as the result of a straightforward rational decision to choose one type of end of life care over others. Simply checking mental capacity and asking about coercion is not adequate.”

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

I understand the concerns my hon. Friend is raising about assessing mental capacity. Does she acknowledge that throughout this process mental capacity will be assessed not once but multiple times? What does she say to that?

[Sarah Olney]

I say to that what I have been saying throughout: a test of mental capacity is not sufficient for this Bill. For example, the Royal College of Psychiatrists states that the Mental Capacity Act

“is not sufficient for the purposes of this Bill. Extensive consideration needs to be given to what an assessment of mental capacity should consist of”

for decisions relating to assisted dying or assisted suicide—

“and, indeed, whether a determination through such an assessment can be reliably arrived at in this novel context.”

I believe that what the Royal College of Psychiatrists means by “novel context” is that no legislation of this type has been framed before and we do not have any precedent to guide us in terms of what an appropriate determination of capacity might be.

[Dr Opher]

I apologise to the hon. Lady for my continued interruptions, but I want to put across some important points. In our medical system, the Mental Capacity Act is currently used to test capacity in cases of withdrawing life support. Does the hon. Lady not agree that that is on the same level as assisted dying?

[Sarah Olney]

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

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

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

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

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

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

[Sarah Olney]

Will the hon. Lady give way?

--- Later in debate ---

[Dr Tidball]

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

[Sarah Olney]

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

[Dr Tidball]

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

--- Later in debate ---

[Dr Tidball]

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

[Sarah Olney]

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

[Dr Tidball]

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

--- Later in debate ---

[Dr Shastri-Hurst]

As always, my right hon. Friend makes a very good point. The Mental Capacity Act allows for advance directives on a whole variety of choices, including withdrawal of treatment, decisions on care or financial elements, and decisions on having treatment as opposed to not having treatment. It creates that ability and it is deemed robust enough for those purposes. It must therefore follow that it is robust enough for the purposes of the Bill.

[Sarah Olney]

I just want to probe the hon. Member on the capacity to make a future directive. Is he saying that, under the terms of the Bill as drafted and its reference to the Mental Capacity Act, it would be possible to say, “I may not be eligible now—I may not even be suffering from a terminal illness—but at some future point, because I have capacity today to make this decision, I should like to choose assisted dying”? Would that decision then be honoured at that future date, without any further intervention or assessment?

[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.

--- Later in debate ---

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

rose—

[Sarah Olney]

rose—

[Dr Shastri-Hurst]

I give way to the hon. Member for Richmond Park.

[Sarah Olney]

I am conscious that the hon. Member for Ipswich sought to intervene before me, but may I press the hon. Member for Solihull West and Shirley slightly on his point? When I asked Professor Sir Chris Whitty during oral evidence whether there could ever be a defined list of conditions that he would define as terminal, he was very clear that there could not be. Someone may suffer from a range of conditions. Most people who develop cancer survive, so cancer is a terminal illness, but not for everybody.

The question of what is and is not a terminal illness is quite contested; it is not clearcut. As the hon. Member for Bradford West says, it is quite possible that diabetes could be a terminal illness if someone refuses treatment for it. I am not entirely clear why the hon. Member for Solihull West and Shirley is saying that it is clear from the legislation what is and is not a terminal illness. As we heard in oral evidence, it is not clear.

[The Chair]

Order. I remind Members that the Committee will discuss terminal illnesses, and extending the list relating to terminal illnesses, under a later clause. Let us remain in scope this morning and continue the debate on the amendments before the Committee.

[Dr Shastri-Hurst]

I will keep my answer very brief by saying that I will return to hon. Lady’s point when we come to the clause on terminal illness, when perhaps I can elucidate, improve and work on my responses in a way that is conducive to understanding.

[Sarah Olney]

I look forward to it.

[Dr Shastri-Hurst]

I am aware that the hon. Member for Ipswich is waiting to intervene.

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

Sarah Olney Excerpts

Committee stage
Tuesday 11th February 2025 Public Bill Committees

[Stephen Kinnock]

The Government choose when to bring forward an impact assessment based on the passage of the Bill through the House. We have had reports today about a very substantial amendment to clause 12 that may well be brought forward by my hon. Friend the Member for Spen Valley, for example. It is not possible for the Government to conduct and publish an impact assessment when quite significant changes are being made.

I also gently point out to the hon. Member for East Wiltshire that this is not a Government Bill; it is a private Member’s Bill. It is also worth noting that it is unprecedented, as far as I know, to have oral evidence sessions for a private Member’s Bill, so we are already on relatively uncharted territory. It is also relatively uncharted territory to have, on a Bill Committee, Ministers who are neutral because the position of the Government is neutral. But that reflects the fact that this is indeed uncharted territory, so that is where we stand.

The hon. Gentleman made a point about our own positions on the subject; I speak also for the Minister of State, Ministry of Justice, my hon. and learned Friend the Member for Finchley and Golders Green. It is a matter of public record that I supported the Bill on Second Reading. It is also the case that we vote, as members of the Committee, on the basis of our conscience because this is a matter of conscience; that is why the Government are neutral on it. There is no whipping from the usual channels.

At the same time, we are articulating the position of the Government. The hon. Member for East Wiltshire asked how we come to that position. It is through the usual process of engaging with officials and experts in the field, and through taking into account all the considerations that the Government need to take into account for the operationalisation of the Bill. The Government then come to a view, and that is the view that I express when I am on the Committee.

[Sarah Olney (Richmond Park) (LD)]

The Minister says that the Government have made their own choice about when to do the impact assessment on the Bill. Does he not accept that it would have made sense to have done it before the Committee stage? Then, any evidence that the assessment threw up could have given rise to amendments tabled during the Committee stage—that would have made it an appropriate time to have done the impact assessment. The impact assessment could then always have been updated depending on how the Bill was then amended during Committee.

[Stephen Kinnock]

The hon. Member makes an interesting point. I simply reiterate that this is a very dynamic Bill Committee; I believe that 362 amendments have been tabled. Given the Government’s focus on establishing the Bill’s implementability, the coherence of the statute, the legal dimensions and the complexity of what we are dealing with, we took the position that it was better to wait for the Bill to clear Committee stage before producing an impact assessment. To do otherwise could have involved a large amount of second-guessing based on radical changes that might well have come out of the Bill Committee. I reiterate the logic of that sequencing.

On the point about the established legal framework, which clinicians have been applying since 2007, “capacity” would still be used for other decisions about care and treatment.

I turn to amendment 202, tabled by my hon. Friend the Member for Spen Valley on the advice of the Government. It ensures that the assessment of “capacity” is utilised by the assessing doctor, and corrects a typographical error in clause 9 to ensure that an assessment of capacity will apply consistently throughout the Bill. As I said earlier, how and whether the law on assisted dying should change is a matter for this Committee and for Parliament as a whole. However, I hope that these observations are helpful to the Committee when considering potential changes put forward.

--- Later in debate ---

[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.

[Sarah Olney]

The hon. Member for Solihull West and Shirley used an arresting phrase this morning: he said that to abandon the Mental Capacity Act would take us “into tiger country”. The concept appeals greatly to me, but what I would say to him and other Committee members is that it is the Bill itself that takes us into tiger country. It is unprecedented, and this is very new territory for legislation in this country. That is the tiger country, right there. If we are going to let those tigers out into the wild, we need to ensure that the British public, and particularly the most vulnerable members of it, have the right protections. That is what the amendment seeks.

There was not a consensus among those who gave oral or written evidence that the Mental Capacity Act is a sufficient safeguard for the purpose proposed in the Bill. I am grateful to the hon. Member for Bexleyheath and Crayford for his speech this morning, which illustrated vividly for all of us how the Mental Capacity Act is used in practice. I particularly thank him for his personal reflection.

Let me reiterate what the amendment seeks. The Bill proposes to judge mental capacity for a decision to request assisted dying in relation to the Mental Capacity Act 2005. There are elements of the Mental Capacity Act that are tried and tested, and should be retained in assessments of capacity in relation to this legislation, but as per the written evidence of the Royal College of Psychiatrists, the Mental Capacity Act is not sufficient for the purposes of assisted dying, because it cannot distinguish between those who suffer from a mental disorder and those who do not. It needs to be adapted for the purposes of the Bill.

My amendment 34 would therefore substitute “capacity” with “ability” and reserve to the Secretary of State the power to define ability for the purposes of the Bill. To me, that is a pragmatic response. The debate in the Committee Room today reflects the lack of consensus among the experts who gave witness. That is why I think the matter is better resolved by those experts giving advice to the Secretary of the State, so the definition of ability can be expertly decided on.

The difference between choosing assisting dying and choosing to end treatment was a big topic of debate both this morning and this afternoon. It goes to the heart of the different approaches that people take towards the Bill. I support the observation from the hon. Member for East Wiltshire that the difference is between dying of an illness itself, or dying of the effects of the approved substance, as laid out in the Bill. To me, that is a substantial and material difference, so our approach to establishing capacity should reflect that.

The hon. Member for Reigate made an important point about the difference between a passive and an active choice. That very much reflects what I am trying to achieve through the amendment, which would allow us to strengthen the safeguards around the assessment of capacity. Given that there was not a consensus, among the experts who gave evidence, on whether the Mental Capacity Act is sufficient for the purpose, the pragmatic step is to allow the amendment to create the conditions under which a stronger safeguard can be adopted if necessary.

Question put, That the amendment be made.

--- Later in debate ---

[Stephen Kinnock]

I thank my hon. Friend for that intervention. My understanding is that it is termed as a treatment under the law. The Government do not take a view on the semantics of the word; my understanding is that that is how it is classified under the law.

[Sarah Olney]

It is really important that we establish whether this will be defined as a treatment or indeed as something quite distinct in law. My understanding is that the word “treatment” should never apply to assisted dying. I would be grateful for the Minister’s clarification.

[Stephen Kinnock]

I apologise; I think I misunderstood the intervention of my hon. Friend the Member for Bradford West, so my comments were not clear. I meant the treatment of this matter under the law. As I said, the justification test requires that the treatment in question is a proportionate means of achieving a legitimate aim. That means the way in which the matter is treated under the law. That is what I meant; I think we got our wires crossed.

Finally, let me address amendments 356, 357 and 358, whose purpose is to exclude those who are homeless within the meaning of section 175 of the Housing Act 1996 from the definition of a “terminally ill person”. The effect of amendment 356 would be to amend the definition of a “terminally ill person”, as set out in clause 1 of the Bill, to expressly exclude a person who, notwithstanding that they met all the other requirements set out in paragraphs (a) to (d) of subsection (1), was homeless within the meaning of section 175 of the Housing Act 1996.

Amendments 357 and 358 seek to make consequential amendments to clause 7 on the first doctor’s assessment and clause 12 on court approval. These amendments would require the co-ordinating doctor and the court to be satisfied that, in their opinion, the person was not homeless within the meaning of section 175 of the Housing Act 1996 before making their statement or declaration to allow the person to proceed to the next stage of the assisted dying process.

Article 14 states that the rights set out in the ECHR should be secured for everyone without discrimination on any ground. This amendment engages article 8 on the right to respect for private and family life. Making those who are homeless ineligible for assisted dying would lead to a difference in treatment that will 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.

I hope these observations may be helpful to Members in considering these amendments and making a determination about who should be eligible for accessing assisted dying services, should the Bill pass.

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

Sarah Olney Excerpts

Committee stage
Wednesday 12th February 2025 Public Bill Committees

[Rebecca Paul]

Not yet; I am finishing my point. It has a clear legal meaning, and we must not put the blinkers on. I would suggest to Members that if they have an issue with the word “suicide”, they remember that this will actually result in the end of someone’s life. We must not be squeamish about using correct and accurate terminology in what we describe.

The second point made by my right hon. Friend the Member for North West Hampshire is a really good point: it is a fine line and it is really difficult. I have proposed this amendment not because I want “encouragement” specifically to be in the Bill, but because the encouragement of suicide is already a crime. I am being logical and taking what is already a criminal offence under the Suicide Act. If we do not include it in the Bill, it means that someone can commit a criminal offence against a victim, and that does not preclude the victim from being eligible for assisted dying, so I am suggesting a very logical amendment. My right hon. Friend makes a great point, but if we have an issue with the word “encouragement”, we need to take that up with the drafters of the Suicide Act, which was long before my time in 1961.

[Sarah Olney (Richmond Park) (LD)]

Does the hon. Lady agree on the value of her amendment, and the value of introducing the word “encouraged” into the Bill? Reflecting on what has been said about the “fine line” argument by the right hon. Member for North West Hampshire and the hon. Member for Harrogate and Knaresborough, the value of inserting this amendment is that, where it can be proven beyond doubt that someone has encouraged or actively sought to influence someone else to choose assisted death, that is a crime encoded in the law.

To the point made by the right hon. Member for North West Hampshire, in discussions among families about this possibility, and where spouses are supporting each other in this decision, it will never be demonstrated beyond reasonable doubt that a crime of encouragement has taken place. By putting it in law, where encouragement can be proven—and it must be proven—it can be prosecuted as the criminal offence that it would be.

[Rebecca Paul]

As ever, the hon. Lady so eloquently makes her point and I completely agree. I am not a lawyer but, given that the Suicide Act made the encouragement of suicide a criminal offence back in 1961, I imagine there is quite a lot of case law that would help define where that line is drawn on encouragement, but I would refer to better qualified people than myself.

--- Later in debate ---

[Rebecca Paul]

I thank my hon. Friend for that intervention. The point that I would make is about an example that we talked about a lot yesterday, so I know that it resonates for many on the Committee. If someone is making a decision and a treatment is being withdrawn, or life support is being turned off, undue influence is already one of the things they consider, so when we are considering assisted death, surely, in order to be consistent, we would apply undue influence to that as well, rather than having a lower level. Why would we have a lower threshold for assisted dying compared with withdrawal of treatment?

[Sarah Olney]

The hon. Members for Sunderland Central and for Penistone and Stocksbridge said of existing concepts in law, “This is how they have always been used.” It was reminiscent of the conversation we had yesterday about the Mental Capacity Act 2005, and mental capacity being an established concept in law, and “This is the way that it is always applied.” Does the hon. Lady agree that although precedent and established usage are extremely important, the Bill is quite a novel piece of legislation, and it is really incumbent on us as a Committee to ask ourselves whether we need to approach this piece of legislation in a different way, compared with other pieces of legislation that have gone before; and whether, just because something has always been used in a particular way, it is still appropriate for it to be used in that way for this legislation, as a general principle?

[Rebecca Paul]

I completely agree. If we do not incorporate undue influence, we are at a lower threshold compared with withdrawal of life-sustaining treatment. That does not feel to me like the right position, but equally, this is a novel bit of legislation and we need to increase the safeguards further. Obviously, we shall be debating numerous amendments whose purpose is to raise that threshold. It is always very hard—how long is a piece of string?—to know exactly where to set a threshold. Different people have different views. My personal view is that in this Bill the threshold is too low, so we need to raise it by agreeing some of these amendments. So far, none of the amendments that have been suggested has been accepted. I really hope that during this Committee stage we will increase the safeguards.

--- Later in debate ---

[Rebecca Paul]

I completely agree with the hon. Lady. We should not make the mistake of assuming that certain amendments will be accepted. Until there is a Division, we do not know what the Bill is going to look like. It is incredibly difficult to table amendments early on when we do not know whether other fundamental things are going to change. That is why it is important that we are really thorough and improve the safeguards as much as we can, clause by clause. I do not want to get to the end of this process without our having accepted any of the improved safeguards, only for the Bill to be turned on its head at the end when there is a Division on something fundamental. As the hon. Lady rightly says, we do not get the opportunity to come back and review the decisions we have made on the back of that.

[Sarah Olney]

Further to the point made by the hon. Member for Bradford West, is it not a further complication that if a question is put in Committee and considered settled, it cannot be revisited on Report by any other Member outside the Committee? It may well be the case that amendments that are accepted further down the line fundamentally change the nature of the Bill, and Members who are not on this Committee will be prevented from revisiting questions in respect of the early clauses because the matter has been discussed in Committee, is considered settled and cannot be revisited on Report.

[Rebecca Paul]

As a new MP—there are many in the room today—I am still very much learning the process; we have to contend with not quite understanding how the full process works. In two years’ time, I think that I and many other new colleagues would be in a different position and would fully understand all the interactions and the subtleties of the legislative process. But it is a challenge I have, which is why, right now, I will always table the most robust amendments that I think will safeguard the most vulnerable in our society.

--- Later in debate ---

[Naz Shah]

I would like to hope that that would never happen; I have a huge love of the NHS and of the people I know in it who make decisions every day, particularly given all the cuts—even more so, post covid. But there is that risk; I would like to hope that it is very small.

When it comes to mental health, the debate is similar to the one about capacity: it is the same conversation about whether something is fit for purpose. Just because something already exists does not mean that it will necessarily suit what we are doing here.

On International Women’s Day, the Minister for Safeguarding and Violence against Women and Girls, my hon. Friend the Member for Birmingham Yardley (Jess Phillips), eloquently reads out a list of victims of domestic violence who have been murdered. There are two a week—I make no apologies for keeping coming back to this. Only yesterday, there was an article about women’s charities that support victims of domestic abuse citing their concerns. The amendment speaks to those concerns. How could it not be supportive?

I am not convinced by the idea that the amendment would introduce an element of jeopardy. People make decisions with their families every day. We sit and have conversations. I speak from a position of privilege—as we all do in this place, frankly. We speak from positions of privilege about how we could have these conversations with our families. But we know that inequalities exist and that some people do not have those privileges. We know that society is unequal. We know that domestic abuse, elder abuse and mental health issues exist.

In my constituency, it takes 14 months just to get a child and adolescent mental health services referral for a young person; I appreciate that we are not talking about young people. My point is that there is a real backlog in the NHS—in terms of waiting times and pain medication, for example. Palliative care is not equal, as I said yesterday. I am genuinely asking Committee members: which bit of the amendment can we not support?

[Sarah Olney]

The hon. Lady is making a powerful speech. She referred to an article she read yesterday about domestic violence in relation to the Bill; it may have been the article by Sarah Ditum in the New Statesman, which I also read yesterday. It cited two cases in which people had been on trial for murder and had pleaded mercy killing, or said that they had carried out the killing of their spouse or partner on the basis that that person was suffering greatly at the end of their life. In both cases, when the evidence was examined, the men were found guilty of murder, because it was very clear that that was what had actually happened.

The article had a profound impact on me, because it demonstrated the risk that we are running: that people will be able to use the Bill in instances of domestic violence. We have to take that very seriously and consider the implications.

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

Sarah Olney Excerpts

Committee stage
Wednesday 12th February 2025 Public Bill Committees

[Kit Malthouse]

I will make two points in response to my hon. Friend. First, I am not sure that it is entirely accurate that burden is the primary purpose. It is certainly the case that when people going through this process in other jurisdictions are surveyed and rank their reasons, burden may be one. We heard that in some of the evidence that we had from overseas, but as I said at the start of my remarks, it depends what we mean by “burden”. Personally, I think it is perfectly legitimate for me to want to spare my children from witnessing, knowing or even learning that I may have died in a particularly unpleasant way. I may therefore wish to go a few weeks before that eventuality and say goodbye to them, gathering them around my deathbed—we heard very movingly about this from one of the witnesses—to say farewell while I still can, before my body is ravaged by the final stages of the disease that is destroying me. I do not think that relieving them from a traumatic burden is anything negative.

[Sarah Olney (Richmond Park) (LD)]

Does the right hon. Gentleman not accept that “burden” here encompasses many different types of burden. One that weighs heavily on many of my constituents is financial burden—in particular, the cost of care at the end of life. That is very directly something that they would wish to relieve their children and descendants of. Does he not accept that the word “burden”, while I hear what he says about it being imprecise, nevertheless contains many different examples, rather than just the one to which he referred?

[Kit Malthouse]

The hon. Lady is quite right, and she makes my point very neatly for me: the language here is so wide-ranging that it could be anything. Other provisions in the Bill deal with exactly the concerns she expresses. A specific part of the Bill talks about people benefiting financially and how they may not participate. We had a long discussion about coercion and pressure.

--- Later in debate ---

[Kit Malthouse]

I am grateful to the hon. Lady, who has made the case much more eloquently than I could have done. She is quite right. We have heard endlessly from witnesses and others that simplicity is best, and that by inserting this kind of complexity, we create yet more difficulty.

I have two other things to say. From the point of view of autonomy, the amendments are trying to police the thoughts of the individual who comes forward in a way that, as I said, may mean that they become guarded in conversations with their physicians. One of the things that I have learned over the past 10 years or so, and that we have heard from witnesses, is that many people who are in extremis at their end are very determined that they will achieve a death other than what nature has laid out before them. That determination comes through from those who go to Switzerland, often in the teeth of the wishes of their family. They will go in secrecy, not telling anyone, because they do not want to put anyone else under threat of criminal prosecution.

We have heard lots of stories over the years—some were mentioned on Second Reading—of people who have killed themselves in terrible circumstances, again, secretly determined that they will not go through that end. My concern is that if we insert such amendments into the Bill, we start to police the conversation in a way that means that people determined to achieve an assisted death will do other than have a free and frank exchange in a sensitive way with their physician. Instead, they will try to tread the path to get what they want.

For example, if the issue was physical pain, the conversation might go: “Why do you want an assisted death?” “Well, of course it is just the pain. It’s all the pain. That is all I want—I’m just frightened about the pain.” “Are you doing it for the benefit of others?” “No—absolutely not! I am doing it completely for myself.” We can see how people might start to modify their conversation, rather than having what should be a sympathetic, empathetic, conversation between doctor and patient about where they should go.

My concern is that, as with a previous grouping, this attempt to micromanage and police the conversation, at the same time as attempting to police the way people should be thinking, threatens the whole concept of assessment and relationship, which we have heard about from many physicians—that is done on a daily basis in not dissimilar circumstances, where life and death is at stake. That complexity and those extra layers, in my view, start to make the Bill less safe.

[Sarah Olney]

I want to pick up on the right hon. Gentleman’s point about wanting patients to be able to have a free and frank conversation with their doctors. In a hypothetical scenario, someone suffering from a terminal illness and in the last six months of their life might say to their doctor, “I would like to explore an assisted dying option.” The doctor asks, “Why is that?” They say, to hark back to my previous example, “Because I want to save my children the cost of my end-of-life care bills.” How does the right hon. Gentleman think the doctor should react in that circumstance, given that that is a free and frank explanation of the person’s reasons?

[Kit Malthouse]

The Bill makes it quite obvious that the doctor would not regard that as a legitimate reason to give people an assisted death, if that was their only purpose. As we said before, however, most people have a range of purposes for seeking an assisted death. In my view—certainly in my experience—the primary one is always having the option of control at the end.

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

Sarah Olney Excerpts

Committee stage
Tuesday 25th February 2025 Public Bill Committees

[Naz Shah]

My hon. Friend comes from a mental health background, and I appreciate his expertise. We have talked a great deal about coercion—we have debated it for hours and hours—and I agree palliative care specialists, who deal with such issues as their day job, can provide that intervention and support the patient by establishing a much stronger relationship with them. I added my name to this amendment because I feel very strongly that palliative care must be a central part of the Bill if it is to provide patients a real choice at end of life. There should not be an assumption, as there is in the Bill as drafted, that assisted death is the predominant option once a person embarks on this pathway.

Let me return to the matter of minoritised voices. Dr Jamilla submitted written evidence, and spoke passionately, about the options available to people from black and minority ethnic communities. She said that they feel very much ignored. As I have said previously, palliative care is not fit for purpose because there is postcode lottery: provision depends on where a person lives, whether they have a hospice nearby, what the hospital options are and so on. There is a fear among ethnic minority communities of being pushed towards assisted death.

[Sarah Olney (Richmond Park) (LD)]

Does the hon. Lady agree that the purpose of this amendment is to ensure the Bill delivers for the people for whom it is intended, such as the person the hon. Member for Spen Valley spoke about? It would put in place protections for the people for whom there is a choice, and that where those choices exits, they are laid out in full and properly examined before a final decision is made.

[Naz Shah]

I completely agree. It is imperative that those options—pain options and care options, including with the family—are explored in detail. The last time that I spent time in a hospice was when my brother-in-law was dying of cancer, and I remember that, as a family, we were very much involved in those conversations. Having such expertise empowers not just the patient but the family. Losing somebody who has a life-threatening condition is a difficult time for families and loved ones. When the wraparound model of palliative care, with specialist nurses and doctors, is good, it can be amazing. I have heard plenty of stories about when it is good. Last week, I mentioned a friend of mine who lost her husband last year, and she said that the palliative care nurses and doctors could not do enough. That gives the family confidence to explore the options. In that instance, that person would have benefited from this Bill—she encouraged me to support it.

As Dr Jamilla said, some people would absolutely benefit from the Bill, and they cannot be dismissed, but how do we legislate to cover people who do not have equal access to palliative care or to healthcare? There is discrimination. The covid experience that we went through recently showed the impact of inequalities. Disabled people, people with mental health conditions, elderly people, and people from black and minority ethnic communities, say that they were DNR-ed—subject to “do not resuscitate” orders. There is already a lack of trust in services, so we need to strengthen palliative care.

There is a fear among these communities that they will be pushed towards assisted dying. A consultation with participants from Pakistani, Roma, Nigerian, black Caribbean and Indian backgrounds revealed overwhelming mistrust, which is deeply rooted in the experience of discrimination and the disproportionate impact of covid-19. As one participant put it,

“They are doing this to save money…to kill us off.”

To get confidence among communities back, we need specialists people can rely on. That is what the amendment speaks to, and I hope that the Committee will support it.

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

Sarah Olney Excerpts

Committee stage
Tuesday 25th February 2025 Public Bill Committees

[Naz Shah]

I accept that the majority of those 60 cases are in such jurisdictions, but to me it does not matter whether it is the majority or one—one death is too many, as I am sure my hon. Friend will agree. In Oregon, the evidence was that it was two, but it is also important to reflect on the fact that Oregon does not record these things. There is no record of the people who had anorexia—by and large, it is women—and who felt that they fit the criteria for assisted death, or that they were on a trajectory to fit it, because they had decided not to eat. So we cannot exactly rely on the two cases that have been found—and those were found only because of the research that was carried out. That does not quite satisfy the question.

[Sarah Olney (Richmond Park) (LD)]

Does the hon. Lady agree that it really does not matter what happens in other jurisdictions? The question is, does this legislation prevent people who are currently suffering from anorexia from seeking an assisted death or not?

[Naz Shah]

I completely agree with the hon. Member.

Coming back to the physicians who justified eligibility by citing the physical complications of anorexia, not just the mental disorder itself, we know that in all 60 of the cases that have been cited, the person did not have a terminal illness other than the one that was caused by anorexia, because that then fit the definition. Under the Bill, the same could happen here. I say in response to the hon. Member for Richmond Park that eating disorders or substance use disorders could still qualify if a doctor determines that the resulting physical deterioration meets the criteria for terminal illness. I will speak to anorexia in much more detail when we debate a further amendment that I have tabled.

Amendment 181 would also remove references to the Equality Act and the Mental Health Act, and the Bill would not define disability or mental disorder. That raises serious concerns, so I will not support the amendment. I encourage Committee members to strengthen the Bill in this regard and not weaken it. The Acts define mental illness and disability as taking a clear medical model, and again it is not clear whether my hon. Friend the Member for Spen Valley is further suggesting that a new definition should be used—but I am going over ground that I have already been over.

--- Later in debate ---

[Naz Shah]

I thank the right hon. Member for his intervention. I have talked about that case, and the court concluded:

“The prospects of her recovery overall approach zero… Given that it is extremely unlikely that Ms L will recover from her anorexia it is…in her best interests to”

move to palliative care, as it was considered a terminal illness. In some ways, that makes my point for me: she was diagnosed as terminally ill. The purpose of the amendment is to close that loophole. The majority of these cases are young girls and young women. I do not want them to get to a stage where they qualify under the Bill because they have a terminal illness due to refusing food, because that can be treated. That is the point that I am trying to make.

Let us say that only one or two people with anorexia have an assisted death if the Bill becomes law without my amendment. I hope that every member of the Committee would agree that even one such death would be unacceptable. Some might say, “Oh, but we must not make the perfect the enemy of the good.” That has been said in the debate, or sentiments have been expressed that reflect that sentence.

That is a good argument to make when we are trying to persuade our teenagers to finish their homework for school and so on. It does not wash for me when we are trying to create a Bill with the strongest possible safeguards for vulnerable adults, and it is too close to the arguments made in favour of brutal actions across the globe. We say things like, “To make an omelette, you’ve got to crack a few eggs.” If we want to make the Bill the best it can be, we cannot use such arguments. Perfection is not the enemy of the good—perfection is absolutely what we should be pursuing in this Committee.

Reference was made to one of the witnesses who gave oral evidence. I remember being aghast at the idea that these two people who died in Oregon were somehow a red herring and that there had been only two. It was really disappointing, and I was extremely angry at that comment. That is not something we should be doing or the standard we should be setting. We cannot be saying that.

There is nothing good about letting people who have sadly reached an advanced state of malnutrition be given assisted dying. Surely we can agree on that. If this Bill does not include my safeguard, it will do two things. First, it will increase the dangers of anorexia. People already develop anorexia to such a degree that they perish of malnutrition. Allowing such people to apply for assisted dying will mean that more severe anorexics die. If we do not adopt my safeguard, we run the further risk that those who are not anorexic, but wish to hasten death, stop eating in order to qualify for an assisted death. Both of those would be truly malign. I would hope all Members of the Committee will accept my amendment to protect those who would otherwise be at risk of starving themselves to an assisted death.

I also want to bring to the Committee’s attention a public letter that has been released this afternoon by nearly 40 individuals who work in the field of eating disorders. They have said, on the amendment to which I am speaking:

“This amendment states that mental illness alone does not qualify as a terminal illness, but as the legal text (“Nothing in this subsection…”) makes clear it has no effect beyond restating that the condition must meet the requirements of clause 2(1). If a doctor holds that a mental illness meets the test in clause 2(1) for terminal illness, this amendment will do nothing to prevent that.”

They further say:

“Eating disorders are treatable. They are life-threatening when left untreated or poorly treated, but this risk is preventable, and deaths from eating disorders are not inevitable. As campaigners, clinicians, charities, and organisations working with those affected, we urge the committee to take these concerns seriously and ensure this bill does not put people with eating disorders at risk of premature death under the guise of assisted dying.”

On my amendment 402, they say:

“Amendment 402: Explicitly states that a person cannot be deemed terminally ill because they have stopped eating or drinking.”

On amendment 48, they say:

“Amendment 48: Clarifies that a person is only considered terminally ill if their death is reasonably certain within six months, even with all recommended treatment.”

They are supporting those amendments, 9, 10, 48, 402 and 11. On that note, I will finish.

[Sarah Olney]

I rise briefly to speak against amendment 234 in the name of my good and hon. Friend the Member for Harrogate and Knaresborough. I will keep it brief as I know he is not going to press to a vote.

First, the Bill that was voted on on Second Reading was a Bill for terminally ill adults in the last six months of their lives. I do not believe attempting to amend the scope of the Bill in Committee is what the House has asked us to do. I think the House voted for a Bill that was specifically for people within the last six months of their lives and that to be amending it—although I accept he is not putting it to a vote—is not in order.

Secondly, I want to reflect on Professor Sir Chris Whitty’s oral evidence to the Committee about how difficult it is to determine when somebody is within six months of the end of their life and how much more difficult it would be to determine whether someone is within the last 12 months of their life, notwithstanding that we are talking about a very specific category of people. For me, that really does give rise to the fear that we would not be able to make a specific determination on whether somebody was in the last 12 months of their life. There would be a risk that people actually have many years left to live. In the case of motor neurone disease, for example, we have seen prognoses of between two and five years, so we risk shortening people’s lives unduly. Furthermore, people might not want to make the prognosis, and therefore people who would like to have the right to end their life in their final 12 months because they have a neurodegenerative disorder might be denied that right, because it is impossible to come to such a determination.

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

Sarah Olney Excerpts

Committee stage
Wednesday 26th February 2025 Public Bill Committees

[Dr Opher]

I agree that the threshold is the same: does the patient have capacity or not? That is the single threshold. We often do mental capacity assessments for inheritance, control of bank accounts and that sort of thing; sometimes we do a very quick mental capacity assessment about the refusal of treatment. How long we take depends on how important the decision is. I suggest that a doctor assessing someone’s capacity to make a decision to end their life would have a serious, long discussion—up to 90 minutes, or possibly even two hours—to make sure that the doctor is convinced that the patient has capacity. The threshold is the same—it is about whether they have capacity—but that does not mean that the conversation is the same. In clinical terms, it is very clear that a conversation on those grounds would be much more involved than, for example, whether a person sees a dentist or not, or other conversations like that.

I totally understand the concerns that the amendment has been tabled to cover; however, my main point is that if we accept the amendment, it will make the Bill less safe. The reason for that is that, as I have said before, if we change something that is well used, and repeatedly used, it will make the interpretation much more complicated. We will have to re-train all the doctors and, I think, it will not protect patients.

[Sarah Olney (Richmond Park) (LD)]

At risk of repeating something said in a previous sitting, does the hon. Gentleman accept that the amendment is not trying to amend the Mental Capacity Act itself, and it is not trying to change how the Mental Capacity Act is used in the majority of situations in which it is already used? All it is trying to say is that in this particular circumstance the Act needs to be applied in a different way. We are not trying to rewrite the Act in itself or any aspect of the way in which it is currently used.

[Dr Opher]

I understand what the amendment is trying to do; my argument is that it will not achieve that because it will muddy the waters of a mental capacity assessment, which will make how we do it less safe. I would also like to return to Professor Whitty’s comments and to say that in the majority of cases mental capacity is very clear. It does not actually take very long to assess whether someone has mental capacity.

--- Later in debate ---

[Dr Opher]

It does reassure me, and I think it should reassure other Committee members. Having eight different people doing a capacity assessment is a very thorough safeguard for capacity. We have gone through the arguments many times in this Committee, but I do not feel that changing the polarity of mental capacity will do anything to make patients in this situation any safer. That is why I do not agree with the amendment. For fear of being interrupted any more, I think I will leave it at that.

[Sarah Olney]

I apologise for arriving late; thank you for calling me to speak anyway, Mr Dowd. I rise to speak in favour of amendment 50, which stands in the name of the hon. Member for Runnymede and Weybridge (Dr Spencer) and to which I have also put my name. I am conscious that we have been through many of the arguments about the Mental Capacity Act today and at an earlier sitting, but I am keen to press the amendment to a vote, because I think it would address some of the issues that have arisen.

The point of dispute appears to be whether the Mental Capacity Act, as it is currently operated for all the purposes for which it is used—I have no doubt that it is a very effective piece of legislation that is widely used and understood by clinicians everywhere, as the hon. Member for Stroud says—is the appropriate measure and tool to use for the Bill. This decision that people are embarking on is like no other, so I think it right and proper to consider whether the Act is the appropriate way to measure whether people are able to make it.

It is useful to reflect on the experience of the hon. Member for Runnymede and Weybridge, who drafted the amendment. I am conscious of the comments that the hon. Member for Ipswich made yesterday about poorly drafted amendments. My understanding is that the hon. Member for Runnymede and Weybridge has extensive expertise in the area; he is an expert in mental capacity assessment, and I dare say that if he were in the room he would have many useful and interesting things to say. That is why I think his amendment bears greater weight, to the extent that one Member’s amendment should be regarded as any better than another’s.

Key to the Mental Capacity Act is the capacity test, which is about the ability to understand, retain, use and weigh the relevant information. The amendment attempts to address what it means to make an informed decision. Dr Annabel Price, who gave oral evidence to the Committee in her role with the Royal College of Psychiatrists, said that people planning to make the decision of seeking an assisted death

“would need to be able to understand the impact of the substance they are taking and what the likely positives and negatives of that are…The informed consent process is different from a refusal of treatment, and the informed consent process feeds into the capacity assessment.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 277, Q361.]

The point, which has come up in previous debates, is whether an informed decision to refuse treatment can be regarded as the same as an informed decision to end one’s life. My personal view is that the two things are quite different, and that a different standard of capacity should therefore be brought to bear on the decision.

I support amendment 50 because it sets out in detail how the Mental Capacity Act should be used specifically in relation to this decision. As I said in an intervention on the hon. Member for Stroud, it would not change the Act or tamper in any way with how it is currently used; it would merely specify the particular ways in which it should be used in relation to the decision.

I hear what the hon. Member said about doctors’ use of the Act, as well as what the chief medical officer said. I am also conscious of what the hon. Member for Bexleyheath and Crayford has said about the variety of experience that he has, as a parent, with professionals’ understanding of the Act. That came across in a lot of the oral evidence. As the hon. Member for East Wiltshire said, the chief medical officer himself had to clarify the remarks that he made to the Committee in oral evidence. The chief medical officer implied that there were different ways of applying the Act depending on the decision to be made, but there are not—that was a very clear clarification. That implies that there is a difference in the way doctors approach the use of the Act. We cannot have a difference of approach when it comes to a decision of such momentous importance as the decision whether someone has the capacity to choose to end their life.

The amendment reflects the fact that there is value in attempting to standardise how the Mental Capacity Act should be used in relation to the decision. That is why we should agree to it: it is important that Members of this House make a clear statement in the Bill about what we expect doctors to do as they approach an assessment of capacity. We should specify the minimum understanding of capacity to choose an assisted death, which includes an understanding of the likely process of all treatment options, including non-treatment and prognostic uncertainty.

In her evidence, Dr Rachel Clarke said:

“I would not be the first person to make the observation that sometimes doctors can be very pleased with their own abilities at a particular practice, and that practice might be having a conversation where you are assessing someone’s capacity.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 80, Q103.]

Doctors have different assessments of their own ability to assess capacity. That is why a standardised approach, as set out in amendment 50, is so important. I stress how important it is that Parliament be the place where the standards for what MPs expect as an assessment of mental capacity are set. We should be the ones to determine them, rather than leaving them to the vagaries of individual clinicians.

The assessment of capacity and the explanation of treatment options to the person considering an assisted death need to include the extent of prognostic certainty about their illness or condition. We spoke yesterday about the difficulty of knowing whether someone has six or 12 months left to live, and of knowing the extent to which they are going to deteriorate. We also covered in detail the relevant and available care and treatment, including palliative care, hospice care or other care. That needs to be part of the conversation about somebody’s capacity to make the decision.

Amendment 50 states that

“a decision to proceed under this Act does not prevent or make unavailable any care and treatment provision that would normally be provided.”

It would therefore be clear that somebody had assessed the full range of their options. The amendment makes clear a fundamental issue that I do not think is otherwise covered by the Mental Capacity Act, or at least not to this level of specificity, which is that

“the person’s decision to proceed…must be theirs alone and not bound or directed by the views or decisions of others.”

We have talked about the importance of that issue in relation to the Bill as a whole, but it would be valuable to include it in the clause as a specific requirement for assessing somebody’s capability.

Doubts have been expressed across the Committee about whether the Bill goes far enough in assessing the extent to which somebody might be under duress or coercion. Putting such a provision in the Bill, as part of the capacity assessment, would be an important and essential safeguard. Once someone has made the decision to seek an assisted death, is the doctor or assessing person confident that the person could unmake the decision or change their mind at any stage?

[Dr Opher]

As my hon. Friend the Member for Spen Valley said, there are eight different opportunities for assessing capacity in the process, the last of which is before the patient takes the medicine that will end their life. At all those stages, it is possible to stop the process, and the patient is in total control.

I do not disagree with anything in amendment 50, but I believe that everything in it is already in the Bill, under other clauses. I do not think that the amendment would add anything to the Bill; it would actually make assessing capacity more confusing, from a legal perspective.

[Sarah Olney]

What I would say in reply to the first part of the hon. Member’s intervention is that there are plenty of opportunities for the person to change their mind—although I might slightly indelicately point out that there will eventually not be a further opportunity; that is the point of what we are trying to do—but that does not necessarily mean that the person has the capacity to make the right decision at each of those opportunities. That is what the doctors will need to assess.

I return to my earlier point: it is important that Parliament specify, by way of this amendment, precisely what it means by assessing capacity. In the context of all the evidence we heard that there is not necessarily a standardised approach across the medical profession, it is important that the standardised approach be specified in the legislation. Clause 3 is the appropriate place to specify it.

The other major point is that patients need to understand the process by which the assisted death will be enabled. The Bill states elsewhere that it will be by the ingestion of an “approved substance”. It is important that we understand exactly what that means, or what it might mean. We will doubtless get on to talking about the approved substance and the proper legislation around its use.

We did not speak much during the oral evidence sessions about the use of the approved substance, but it is important that people understand that any medical procedure can fail, including with an approved substance, and we do not know how long the substance will take to be effective. Nor do we know what the patient’s experience will be after taking the approved substance. It is important that they understand, to the extent that it is possible for a doctor to give them the information, what they are undertaking.

In his evidence, Professor House said:

“It is a striking feature of the Bill that informed consent is not really specified properly. The doctor is required to ask the person what they want to happen in the event of complications without having previously explained to them what all the complications might be…There is no standard informed consent form related to the Bill, for example—of the sort that you would expect to sign if you were having a serious intervention in the NHS.”––[Official Report, Terminally Ill Adults (End of Life) Private Member’s Bill Committee, 29 January 2025; c. 169, Q216.]

He said that informed consent was very underspecified in the Bill. The amendment could start to address that. It is important that people have the capacity to understand what they are undertaking—not just that they are choosing an assisted death, but all the potential attendant risks and complications.

I return to my opening point, which is that it is important that Parliament specify a standard by which mental capacity can be assessed in relation to this specific decision. I feel that I have made the point a number of times, but I will make it once more: we are not proposing to rewrite the Mental Capacity Act or tamper in any way with how it is currently used. We are merely setting a higher bar—a higher standard for how it should be applied in this particular case, because of the very specific nature of the decision that patients are being asked to make in this particular circumstance.

--- Later in debate ---

[Sarah Olney]

I want to pick up on a point that the hon. Member made before the previous intervention about the rights of the doctors themselves. This is an important point that we do not consider enough. We talk a lot about the rights of the patient, quite rightly, but this Bill will provide the means by which another person can get involved in someone’s death. It is really important that the legislation protects the rights of that person—the doctor involved—as well. Does he agree that providing greater clarity about the standard required to assess capacity will help the doctor to protect their own rights, perhaps in response to legal challenge from families, and that it is important that we consider the rights of the doctor as well as the patient?

[Danny Kruger]

The hon. Lady is absolutely right. It is an interesting irony of the Bill that it is presented as the free choice of individuals, but actually it imposes all sorts of obligations and repercussions on other people—the very term “assisted” conveys that. Many other people will be affected by the decision to take an assisted death. She is right that it would be very helpful for the doctors to be confident that they have done their job properly because they have a clear list of communications they are expected to make.

My understanding is that doctors are indemnified against legal challenge in consequence of decisions they make around this; that is an interesting point and one that I am uncomfortable with, but we will come to that later in the Bill. Leaving lawsuits out of it, from the point of view of the doctor’s professional conduct and their peace of mind, it would be very helpful for them to have it clearly specified what information they are required to convey.

I am grateful for Members’ interventions, and I appreciate the good faith and good sense that has been spoken, but I have not yet heard any reason for objecting to this amendment, other than the possible question of its being otiose and not necessary. That is not a sufficient reason to object to an amendment. We should not be objecting simply on drafting grounds. There can be tidying-up exercises later if there is repetition. I have not heard objections to the content of the amendment, and I would very much welcome Members’ support.

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

Sarah Olney Excerpts

Committee stage
Wednesday 26th February 2025 Public Bill Committees

[Dr Tidball]

It is a pleasure to serve under your chairship, Mrs Harris. I will be supporting amendments 319 and 320 tabled by my hon. Friend the Member for Bexleyheath and Crayford. I am a great admirer of my hon. Friend’s work in championing people with learning disabilities, and his mission to give them a strong voice in this Bill. It is an area very close to my heart, having spent over a decade and a half working with people with learning disabilities and the advocacy organisations that support them.

I will, however, not be supporting my hon. Friend’s amendment 339, merely because I am drafting something to strengthen those measures even further. My amendments will go beyond amendment 339 and amend the code of practice so that seeking advocacy and access to an appropriate adult applies across the pathway to those seeking assistance, not merely in relation to the content of clause 4, as in that amendment.

I want to ensure that access to an independent advocate or appropriate adult is expanded to cover those with autism, a learning disability or a mental disorder, which is not currently covered by amendment 339. That will enable those people to engage with any of the provisions under this Bill through the support that they would receive from an independent advocate or appropriate adult.

As I say, I am also seeking to strengthen access to such advocacy across the pathway, through seeking assistance at each stage. I have huge respect for my hon. Friend, but I want to make sure that we specifically include the language of “mental disorder”, to make sure that that particular group of people with mental health problems is able to access independent advocates, as well as those with learning disabilities and autism.

I am also looking at whether we need a consequential amendment or new clause that would make the Secretary of State put in place provisions for regulations as to the appointment of persons as independent advocates in order to ensure that those seeking assistance under the legislation who have a learning disability, autism or a mental disorder can have proper access to such advocates. That would strengthen the resource provision and access for that group.

I have worked closely with Mencap on the amendments that I am drawing up and will continue to do so, and I would welcome input from my hon. Friend the Member for Bexleyheath and Crayford. Although I support his intent in principle, I will be tabling amendments to cover a broader group of individuals to access such appropriate adults and independent advocates, so that they can seek and access advocacy across the pathway and period of seeking assistance. My amendments would put access to appropriate adults and independent mental health advocates on a much firmer footing in the Bill.

[Sarah Olney (Richmond Park) (LD)]

I wish to speak briefly to amendment 270, in the name of the right hon. Member for South West Wiltshire, to which I have put my name. It is about the really important issue of assessing suicidal intent as part of the assessment as to whether somebody has capacity to seek an assisted death. It is a really important point. The Bill expressly sets out that the person seeking an assisted death should have

“a clear, settled and informed wish to end their own life,”.

Amendment 270 seeks to establish that the wish cannot be clear or settled if there is any doubt about whether the person has a suicidal intention instead of seeking an assisted death on the basis that they have a terminal illness. In its current form, the Bill does not require a structured assessment of whether a patient is experiencing remediable suicidal risk factors, such as treatable depression, external pressures or suicidal ideation, before assisted dying is discussed.

In the oral evidence, Dr Mulholland said that most people with depression, anxiety and other mental health problems “would have capacity” under the Mental Capacity Act because it would be presumed. It is not necessarily an obstruction to people being referred for anything. It is an important point that someone can have depression and that it can lead them to have suicidal thoughts, but under the Mental Capacity Act they would still be assessed as having capacity to decide that they wanted an assisted death.

What is really important is that we have, over some years in this country, developed a suicide prevention strategy. I am sure that every Member in this room has had constituents approach them, as I certainly have, about family members who have committed suicide, where they were able to identify factors that made that suicide preventable. That is why it is so important that the suicide prevention strategy has been developed and continues to be developed, and why leading figures associated with that strategy—and with suicide prevention more widely—are concerned that a Bill for assisted dying may undermine suicide prevention strategies. We should take every care to prevent that in this Bill.

The current UK suicide prevention strategy cites early intervention as a priority to implement tangible actions aiming to reduce the risk factors of suicide. In line with that strategy, amendment 270 provides early intervention that aims to identify the symptoms of suicidality in a patient before the initial discussion about assisted dying can take place. At the bare minimum, someone who is severely suicidal will not be allowed to enter into conversations about receiving an assisted death.

It is important to reflect that suicidal ideation is not the same as a settled wish to die. Evidence shows that when mental health issues are treated, many patients no longer seek to end their life by suicide. Dr Price, in the oral evidence, said that 20% of terminally ill patients experienced depression, which is strongly associated with the wish to hasten death. When depression is identified and treated, the wish to die often diminishes. It is so important to distinguish and make provision for those people who are experiencing a wish to die as suicidal ideation, as opposed to the

“clear, settled and informed wish”

specified in the Bill.

Research from the Office for National Statistics, King’s College London and the University of Manchester suggests that people diagnosed with a physical terminal illness are at an elevated risk of death by suicide, because of an increase in the psychological distress that can lead to severe depression in many patients, but data from the study shows that it is a more pronounced risk of suicide in the first six months after diagnosis or first treatment and, on average, suicide rates in the first year after a terminal diagnosis were 21.6%. Of course, it is important to reflect on the fact that a diagnosis of a terminal illness can take place some years in advance of the actual prognosis that the person’s death may occur. We are looking at a group of people who are within six months of their death as far as can be established by what is, as we know, uncertain prognosis—yet the incidence of suicide among those with a terminal illness is much more weighted towards those who have just received a diagnosis. These, of course, are not the same group of people; there may well be overlap, but they are definitively not the same.

Evidence on the gov.uk website suggests that

“over half of men aged 40 to 54 who died by suicide had a physical health condition.”

We know that having a physical health condition or any kind of terminal illness has an impact, and that evidence demonstrates the impact that poor physical health has on mental wellbeing. We know that thereDr Louis Appleby, a psychiatrist who leads the national suicide prevention strategy for England and directs the national confidential inquiry into suicide, has expressed concerns that the Bill fundamentally undermines the basis of the suicide prevention strategy. Identifying and diagnosing capacity and mental disorders are easy to put down in writing, but in practice it is much harder for professionals to make a correct judgment straightaway. Where we do not want someone to die, we intervene by offering mental health support, crisis services and what we hope is a comprehensive suicide prevention strategy, but for those who qualify under this Bill, instead of that suite of support, we allow them to progress straight into discussion to end their life.

It is really important that we have had a debate today about how the discussion should be initiated and the appropriate way to do that, but what is important about amendment 270 is that it takes into account the specific factor of suicidal ideation. It would mean that whatever the outcome of the decision about how the conversation should be initiated, the possibility that the person wishes to commit suicide is nevertheless taken into account.

[Danny Kruger]

The hon. Lady has just made a very important point. Does she agree that there will be profound awkwardness for a medic? In a hospital, when somebody says they want to die, they are at the moment referred to the mental health team—basically to be put on suicide watch—but under the Bill, without this provision, the obligation would be to say, “Well, maybe that’s the right thing to do,” and refer them to the assisted suicide team. What is being proposed through this amendment, as I understand it, is more or less to do both.

[Sarah Olney]

That is absolutely right. I think it becomes quite challenging for medical professionals when they are presented with a patient who expresses a wish to die: is this a suicidal intent or is it a clear, settled and informed wish to end their life under the provisions of the Bill? That is why it is really, really important that the possibility of suicidal intent is ruled out, as set out in amendment 270, which I support.

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

Sarah Olney Excerpts

Committee stage
Tuesday 4th March 2025 Public Bill Committees

[Daniel Francis]

Thank you for letting me speak, Mr Dowd. I will be brief.

As we reach the end of our debate on clause 4, I regret some of the decisions that we have made. I welcome the fact that in due course we will discuss amendment 418, in the name of my hon. Friend the Member for Spen Valley, which also relates to the preliminary conversation. My concern remains that it is “a” preliminary conversation, not, in my determination, “the” preliminary conversation. My amendments would have meant that “the” preliminary conversation could not be held before someone is 18. As I read amendment 418, someone could have preliminary conversations before they are 18; it is just that it will be recorded that there was a preliminary conversation after they turned 18. I regret that, as clause 4 now stands, the paperwork and initial discussion must be completed after someone is 18, but that will not necessarily apply to a preliminary conversation.

Equally, I have some regrets in relation to learning disability issues. I welcome the commitment from my hon. Friend the Member for Penistone and Stocksbridge on the amendment that she aims to bring forward, but I am conscious that it is not on the amendment paper for everybody to see. Just as she committed to work with me, I will continue to work with her on bringing it forward.

We have debated clause 4 long and hard, but I do believe that we have a clause that has loopholes in relation to people under 18 and to people with learning disabilities and autism. I will not press it to a Division, but I regret the fact that we have reached this place.

Question put and agreed to.

Clause 4, as amended, accordingly ordered to stand part of the Bill.

Clause 5

Initial request for assistance: first declaration

[Sarah Olney (Richmond Park) (LD)]

I beg to move amendment 271, in clause 5, page 3, line 5, at end insert—

“(1A) A person may not sign a first declaration within six months of being diagnosed with a condition which meets the requirements of section (2)(1)(a) unless they have received a psychosocial intervention in relation to their diagnosis with that condition.

(1B) The Secretary of State may, by regulations, create exceptions to the provisions of subsection (1A).

(1C) Regulations under subsection (1B) are subject to the affirmative procedure.”

This amendment would create a requirement that the person must have received a psychosocial intervention if a terminal diagnosis was received less than six months ago. The Secretary of State would be given a delegated power to create exceptions to such a requirement with regulations subject to the affirmative procedure.

[The Chair]

With this it will be convenient to discuss amendment 272, in clause 30, page 18, line 32, at end insert—

“(f) the form of the psychosocial intervention required under section 5(1A).”

This amendment is consequential on amendment 271, and would allow the Secretary of State to issue a code of practice in connection with the requirement for a psychosocial intervention.

[Sarah Olney]

I will not take up a huge amount of time, because a lot of what I wanted to say has been said in previous sittings, but I return to the issue of people who may request an assisted death who may also be suffering from a mental health condition. Amendment 271 was tabled by the right hon. Member for South West Wiltshire (Dr Murrison), and specifically concerns people who have received their terminal illness diagnosis less than six months ago and whose prognosis is less than 6 months in the future. The amendment specifically addresses the fact that the risk of suicide for people who are suffering from a terminal illness increases when the diagnosis has been made less than six months before.

Professor Louis Appleby is a key academic in the area of suicide prevention and advises the Government on it. Research by him and Professor Sleeman found:

“Diagnosis of severe conditions was associated with an increased risk of dying by suicide”.

In particular, they found:

“The increase in risk was more pronounced in the first six months after diagnosis or first treatment.”

They concluded that:

“A diagnosis of severe physical illness is associated with higher suicide risk. The interaction of physical and mental illness emphasises the importance of collaborative physical and mental health care in these patients.”

We talked at length in an earlier sitting about the risk that bringing in an assisted dying law would undermine suicide prevention strategies and efforts to address the issue of suicide. It is important that we return to this issue, and that we look seriously at the amendment in the name of the right hon. Member for South West Wiltshire, because it addresses the specific concern around those people who have had their diagnosis of terminal illness for less than six months and are therefore at a heightened risk of suicide.

NICE guidelines say that if someone is at risk of self-harm or suicide, a clinician must ensure that a psychosocial assessment has been carried out either by a mental health specialist or by a trained person in primary care. That should cover the person’s living arrangements, relationships, social support network, mental health disorders, risk factors, safeguarding concerns and so on. Professor Allan House told the Committee in oral evidence that this should be part of the assessment for assisted dying. He said the current assessment only answers the question:

“‘Is this person able to make decisions?’…it does not cover the psychological and social assessment.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 165, Q210.]

We have discussed at length the lack of the psychosocial assessment in relation to everybody who makes a request for an assisted death, but the amendment seeks to identify those who are at heightened risk of suicide—those who have received their diagnosis of terminal illness within the last six months—and specifically requires psychosocial assessments for those people.

Depression is common among those with terminal illness. Dr Price from the Royal College of Psychiatrists told the Committee that among

“people nearing the end of life…depression is…at around 20%—much more common than in the general population. We know that depression is strongly associated with a wish to hasten death”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 275, Q359.]

and that that wish is significantly alleviated if depression is treated, which is an extremely important point for the Committee to consider.

The Pathfinders Neuromuscular Alliance, which is a user-led charity for those with muscle-weakening conditions such as muscular dystrophy, have stated in written evidence:

“Pathfinders members have outlined how important it is to ensure psychological assessments are part of the process in order to ensure that the individual is in a position to make an informed decision. One member outlined:

‘I’ve been there, I’ve wanted to die, and I’ve been in the position where I would take that option if it was given to me, but looking back I can see I was depressed and now I’m so glad that I didn’t take that option.’”

Currently, the Bill does not require anyone to explore any psychosocial factors in respect of someone’s situation. Although the person can be referred to a psychiatrist under clause 9(3), that only covers a capacity assessment. Again, it only answers the question of whether the person is able to make decisions, and addresses none of the other relevant factors. In Oregon, there is more room to explore those factors—the doctor may refer a patient for counselling if the patient may be suffering from a psychiatric or psychological disorder or depression, causing impaired judgment.

On addressing the risk of social pressure and internalised feelings of burden, the British Geriatrics Society warned in its written evidence:

“There is an established link between frailty and feeling a burden to others, meaning many older people with treatable clinical frailty may choose an assisted death to avoid burdening their family, which we view as unacceptable.”

The Committee has already discussed at length the issue of older people or people with a terminal illness wishing to choose an assisted death motivated by the wish to save their family money. Dr Jerram, Dr Wagland and Dr Davis found that attitudes towards assisted dying changed over time. Patients closest to death were least likely to want assisted dying, suggesting that fear of suffering was the driving cause and that it may lessen as end of life care improves.

Psychosocial care is fundamental to good end-of-life care. Committee members and witnesses from other jurisdictions have said that palliative care and assisted dying can complement each other, and that assessment should be part of the picture. Glyn Berry told the Committee about the importance of

“the psychosocial aspect of palliative and end-of-life care”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 53, Q58.]

In its written evidence, the British Association of Social Workers said that

“good health care is not just about clinical interventions”,

but also about

“the wider social context in which a person lives their life…This is particularly pertinent with assisted dying.”

That needs to come before the first declaration, because once somebody has signed that declaration, they are already on a pathway. The amendment would provide an opportunity for people’s needs to be met at the first opportunity.

In conclusion, I emphasise the importance of a psychosocial intervention, which was stressed by a number of witnesses giving oral evidence to the Committee. We have discussed this issue at length. Earlier amendments have been voted down, but I stress the particular importance of the amendment 271 for that group of people who are in the first months of their diagnosis of a terminal illness and the raised level of risk of suicide that they present.

[Sojan Joseph]

As the hon. Member for Richmond Park says, we have repeatedly debated people’s mental health and how, once somebody has had a diagnosis of a terminal illness, it can have an impact on their decision making. Amendment 425, which we discussed earlier, is about having access to a multidisciplinary team. That team could have on it a social worker or a psychiatrist who would make a comprehensive assessment, which would cover amendment 271.

The amendment is an opportunity for the Committee to look into this issue, to make the Bill stronger, and to bring in safeguards for vulnerable people who may feel suicidal, and may feel a burden to society or to the healthcare system, and may choose this way. Those people who are vulnerable would have a psychosocial and mental health assessment, which would make the Bill stronger and safer.

[Lewis Atkinson]

I rise to speak against the amendment; there are significant issues with it both in practice and in principle. In terms of practice, I draw Members’ attention to the fact that the amendment does not mention a psychosocial assessment; it mentions mandating “a psychosocial intervention”. As defined by the World Health Organisation, a psychosocial intervention can be as brief as five minutes. I know that it is a brief intervention: I used to manage services delivering psychosocial interventions. Nowhere in the amendment is the type of psychosocial intervention or its purpose specified. If Members hope that the amendment will lead to a psychosocial assessment—

[Sarah Olney]

For clarity, if the amendment specified a psychosocial assessment, would the hon. Gentleman be minded to support it?

[Lewis Atkinson]

The holistic assessment is already set out elsewhere in the Bill, so the amendment is not required. Amendment 275, which we made to clause 4, requires “all appropriate” psychological support to have been discussed with an individual in advance of the first declaration. I clearly supported that amendment, and I am very grateful that the Committee did.

From a practical point of view, amendment 271 talks about six months from the point of diagnosis, but if I had prostate cancer, I might have had prostate cancer for absolutely years—so is it six months from the point of being diagnosed with prostate cancer or six months from the point of being told that that is terminal? There are a huge range of practical issues with the amendment as currently written, but there are also issues regarding the principle as well.

Fundamentally the amendment starts with the assumption that there is something psychologically wrong with a person if they have received a terminal diagnosis, and that they need to be persuaded of the fact that exploring their options is not the right thing to do. That is fundamentally wrong. There are genuine issues and concerns around the tragedy of suicide in all cases where it occurs. But in the instance following terminal diagnosis, as the hon. Lady set out, a prevention strategy should not start by assuming that everyone requires a psychosocial intervention regardless of screening, risk factors or any assessment.

[Sarah Olney]

Would the hon. Gentleman not accept that a terminal illness in itself is a risk factor for an increased risk of suicide, and also that that risk is increased in the first six months following the diagnosis? That is the thinking behind the amendment.

[Lewis Atkinson]

I accept that that is a risk factor, but it is by no means determinative. Therefore, that risk factor has to be considered in the round with other risk factors such as levels of family and social support. As set out, the amendment does not distinguish between someone receiving a terminal diagnosis by themselves without any support network, and someone who expects to receive a terminal diagnosis at the end of a very long illness. As a point of principle I do not accept that we should mandate psychosocial interventions or that people must receive a level of healthcare in order for them to access other options related to their care—let alone the practicalities, which I have laid out, about when the provision would apply in relation to diagnosis and the fact that it is an intervention, which is in no way an assessment or any such thing.

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

Sarah Olney Excerpts

Committee stage
Wednesday 5th March 2025 Public Bill Committees

On resuming—

[Sarah Olney (Richmond Park) (LD)]

I beg to move amendment 363, in clause 7, page 4, line 7, at end insert—

“(ba) is not seeking assistance to end their own life because of an impairment of judgment arising from a mental disorder or other condition,”.

This amendment would require that the coordinating doctor is satisfied that a person is not seeking assistance to end their own life due to an impairment of judgement arising from a mental disorder or other condition. It is linked to Amendments 364, 365, 366 and 367.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 364, in clause 8, page 4, line 34, at end insert—

“(ba) is not seeking assistance to end their own life because of an impairment of judgment arising from a mental disorder or other condition,”.

This amendment would require that the independent doctor is satisfied that a person is not seeking assistance to end their own life due to an impairment of judgement arising from a mental disorder or other condition. It is linked to Amendments 363, 365, 366 and 367.

Amendment 365, in clause 9, page 6, line 31, at end insert—

“(ba) must, if they think a person may be seeking assistance to end their own life due to an impairment of judgment arising from a mental disorder or other condition, refer the person for assessment by a registered medical practitioner who is registered in the specialism of psychiatry in the Specialist Register kept by the General Medical Council.”

This amendment would require that the assessing doctor to, if they think a person may be seeking assistance because of an impairment of judgment refer them for an assessment. It is linked to Amendments 363, 364, 366 and 367.

Amendment 366, in clause 9, page 6, line 32, after “(b)” insert “or (ba)”.

This is consequential on Amendment 365.

Amendment 367, in clause 12, page 8, line 2, at end insert—

“(ca) the person is not seeking assistance to end their own life due to an impairment of judgment arising from a mental disorder or other condition.”

This amendment would require that a court is satisfied that a person is not seeking assistance to end their own life due to an impairment of judgment. It is linked to Amendments 363, 364, 365 and 366.

[Sarah Olney]

Although this is not specified in any of the amendments—which are in the name of my good friend, my hon. Friend the Member for Bath (Wera Hobhouse) —they are very much informed by the work she has done over a number of years as the chair of the eating disorders all-party parliamentary group. This is a subject about which she has a great deal of knowledge, and that is what has prompted this group of amendments, which follow on from the debate we had just before the break.

It is important to remember that although amendment 6 —in the name of another good friend, my hon. Friend the Member for St Albans (Daisy Cooper)—talked specifically about people’s capacity, this group of amendments very much returns to a topic I have spoken on at length in previous sittings: how a person’s capacity to request an assisted death might well be impacted if they are suffering from mental health difficulties.

Amendment 363 would require a mental health assessment if there is any indication that a person’s judgment may be impaired by a mental disorder or other conditions. We have debated this topic at length—[Interruption.] I see the right hon. Member for North West Hampshire nodding, but it is worth returning to the issue, because a principal concern of mine is that we have not yet dealt adequately with this risk in the Bill. We have talked about how the Mental Capacity Act might be applied and about psychosocial interventions, but I am keen to see amendment 363 agreed to, because it would deal with many of the objections raised in those other debates. It is an important safeguard that still needs to be included in the Bill.

The Bill has been described as having the strongest safeguards in the world, but it lacks this critical safeguard, which is seen in many similar laws around the world, including Oregon and California, which require that in addition to establishing mental capacity, doctors must ensure that a person’s judgment is not impaired by mental illness. In fact, in the American state of Hawaii, every patient who requests an assisted death is required to see a mental health professional, who can determine whether the patient is capable and appears not to be suffering from under-treatment or non-treatment of depression or other conditions that may interfere with their ability to make an informed decision.

It is provided for specifically and clearly in the legislation that governs assisted dying in other jurisdictions that assessments of the state of people’s mental health—and not just their capacity—must be made properly. The absence of any such safeguard in the Bill represents a clear risk. We know that mental health conditions can impair decision making and lead to suicidal ideation, particularly when a person lacks adequate social support. Without this provision, individuals experiencing a treatable mental health crisis may be given life-ending medication instead of the care and treatment that could alleviate their suffering.

Professor Allan House made the importance of that clear in his written evidence. He wrote:

“Simply checking mental capacity and asking about coercion is not adequate.”

He emphasised that National Institute for Health and Care Excellence guidelines in other areas already require a comprehensive psychosocial assessment that explores

“thoughts about life not being worth living”

and considers

“current and recent personal and social circumstances, recent adversities, psychological state beyond merely assessing mental capacity and the presence of severe mental illness.”

Professor Louis Appleby, the Government’s adviser on suicide prevention—I have referenced him on many occasions in previous sittings—has also raised concerns that the Bill could undermine suicide prevention efforts. Speaking to The Guardian, he said:

“You have a number of potentially remediable risk factors like isolation, for example. Do something about isolation. Depression, treat depression. It should be the offer of supporting people through the remediable elements of a sense of despair.”

That highlights why a safeguard is necessary to ensure that individuals receive proper assessment and treatment, if needed, before making an irreversible decision. If a person qualifies for assisted dying but is also experiencing impaired judgment due to a psychiatric condition, how can we be confident that their decision is truly autonomous?

Amendment 363 would require the co-ordinating doctor to assess whether a person’s request for assisted dying is influenced by a mental health condition. If there is any concern that impaired judgment due to a mental disorder is a factor, the doctor must refer the individual for a psychiatric assessment. The amendment would explicitly protect individuals with mental health disorders, including eating disorders, from accessing assisted dying when their desire to die is a symptom of their illness rather than a rational decision deriving from a terminal illness.

Do not ask me how I know this, but eating disorders really scramble a person’s brain. They leave them entirely incapable of making any kind of rational decision. The lack of nutrition really affects the brain: it has a physical impact that means the brain simply cannot function as it is supposed to. That is a direct cause of a person not ingesting the nutrients they need. When that happens to somebody, their behaviour completely changes: they become anxious, fearful, irrational and aggressive. It is not just that they believe their life is not worth living; the entire span of their life has shrunk down entirely to the question of how they can avoid eating. What is the next meal? What is the next stage in their life when someone is going to try to get them to eat, and how can they avoid that? What tactics can they employ?

When a person is in the grip of that kind of eating disorder, if someone comes along and offers them the possibility of an assisted death, there is every chance that they will choose that as a way of avoiding eating. As I say, do not ask me how I know this, but I have seen it, and for me it is beyond comprehension that we could possibly allow young people, and young women in particular, to put themselves in the position where they are being offered an assisted death and no one is taking those extra steps to treat their eating disorders—and eating disorders are always treatable. That is why I want to press the amendment.

[Kim Leadbeater]

The hon. Lady is making a powerful speech, and I understand that the amendments come from a very good place, and a very strong and experienced one, but she just made the point that eating disorders are treatable. That is the whole point: they would not fall under the criteria in the Bill.

[Sarah Olney]

That is why we need to ensure that people with eating disorders get the treatment they need, instead of being offered an assisted death. That is why we need the amendment.

[Kim Leadbeater]

rose—

[Sarah Olney]

Let me just reply to the hon. Member’s original point. It is so important—and this is why we need the amendment in the Bill—that if there is any doubt at all that someone is suffering from a treatable mental health condition, they are not allowed to proceed with their request for an assisted death until all avenues of treatment for that condition have been explored. Eating disorders are treatable: people can recover and can, in the fullness of time, recover their zest for life. They can move beyond the stage where their decision whether to eat or not is their entire world. They can rediscover their friends, their employment and their education, and they can look forward to a full life again. But it is imperative that while they are in the grip of that eating disorder, they are not offered the option of an assisted death.

[Kim Leadbeater]

I agree with every word the hon. Lady said, and—possibly like her—I have experience of working with people with eating disorders. However, clause 2 defines terminal illness as “an inevitably progressive” illness or disease

“which cannot be reversed by treatment”.

Eating disorders can be reversed by treatment, and therefore I am not willing to support the amendment.

[Sarah Olney]

We need to consider the possibility that somebody is suffering from a terminal illness as a comorbidity with an eating disorder; they may be suffering from an eating disorder alongside something that can be considered a terminal illness—there are such cases. However, it is not unknown—and Chelsea Roff, an expert on eating disorders, who has given evidence to the Committee both orally and in writing, has uncovered a number of occasions in jurisdictions where assisted dying is already legal—for an eating disorder to be defined as a terminal illness. It is really important that we understand that there remains a risk that an eating disorder could be a terminal illness.

[Danny Kruger]

I am afraid that that is a risk in our own country too. Does the hon. Lady acknowledge that some young women have been put on palliative care pathways in the NHS? They have been diagnosed as having terminal anorexia.

[Sarah Olney]

The hon. Member is absolutely right. The Court of Protection has described eating disorders using language typically reserved for terminal illnesses. It has described an eating disorder as being in “the terminal stage”, talked of “all treatment options” having “been exhausted” and used words such as “incurable”. It is immensely regrettable, but nevertheless the case—even though eating disorders are always treatable—that if a person suffering from an eating disorder is deemed to have capacity and is refusing treatment, there may well be nothing that can be done to stop them choosing that path, which may ultimately lead to their death.

[Naz Shah]

Is the hon. Member aware that in nine of the 10 cases that went before the Court of Protection, the young ladies were deemed not to have capacity, but the judge still decided that it would not be in their best interests to feed them, and they were put on palliative care pathways?

[Kit Malthouse]

They did not have capacity.

[Sarah Olney]

I am grateful for that intervention and, dare I say it, for the one from the right hon. Gentleman. That is the whole point about eating disorders: there is a very fine line to be trod between people who have capacity, people who lack capacity and people who have capacity but who can still be allowed to make an unwise choice, which is obviously a huge risk for people with eating disorders. I find that risk very much magnified in the Bill as it is currently drafted, which is why it is of the utmost importance that it provides specifically for the possibility that somebody is suffering from any kind of mental health illness, and particularly from an eating disorder—but I do not see such a provision at the moment. I heard the arguments that were made when I raised this issue in earlier sittings, and I very much welcome amendment 6, but it deals only with capacity; it does not talk about mental illness.

To conclude, amendment 363 is a crucial safeguard that would prevent assisted dying from becoming an unintended route for people suffering from mental health conditions, such as eating disorders, to end their lives prematurely. It would ensure that requests for assisted death are based on genuine, rational decisions, rather than symptoms of a treatable disorder. By aligning with best practice from other jurisdictions and addressing a critical gap in the UK’s current approach, it would strengthen the ethical foundations of the assisted dying Bill and better protect vulnerable individuals.

[Lewis Atkinson]

I welcome the hon. Lady’s speech, which she made with her customary dignity and force. I feel we are repeating some of the discussions we had on earlier clauses regarding capacity, and it is for the reasons I articulated then that I believe we need to stand by the Mental Capacity Act—and not deviate from it by introducing language such as that proposed in the amendment—because that is where safety lies.

--- Later in debate ---

[Sarah Olney]

I believe I repeated several times in my speech that this is not about capacity; it is about mental illness.

[Lewis Atkinson]

I take the hon. Lady’s point, and I was about to come to that. The Mental Capacity Act already explicitly states that

“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

The language around an impairment in respect of the mind or brain is already set out in that Act.

As has been acknowledged, the Court of Protection has repeatedly found that people lack capacity, and such people would therefore not be eligible under the Bill in some of the circumstances the hon. Lady set out. By introducing a new, undefined concept of “impaired judgment”, which as I understand it is not a term that exists anywhere else on the statute book, we would be clouding the Mental Capacity Act.

[Sarah Olney]

Does the hon. Gentleman assert that it is therefore impossible for anybody with a mental illness that might affect their ability to make a decision about an assisted death to be judged to have capacity?

[Lewis Atkinson]

As I am sure the hon. Lady knows, there are gradients of mental health issues, from low mood to suicidality and so on. We should not prevent anyone from accessing an option merely because of a mild element of, for example, depression, which they have lived with for their entire lives, if they have then been diagnosed with a terminal condition.

The key point, as my hon. Friend the Member for Spen Valley made out, is that the idea that eligibility will be conferred as a result of mental health illnesses is not correct. As we have discussed, the definition of “inevitably progressive” in clause 2, which is at the heart of the Bill, clearly protects against such instances. I also highlight the amendments we have made that help to clarify some of this. Members have pointed out the amendment from the hon. Member for East Wiltshire on removing medical conditions from the Bill, which was very helpful in this regard.

I do not want to fall foul of Standing Order No. 42 on repetition, but I feel like with this issue we are repeating some of our discussions on capacity. In particular, my hon. Friend the Member for Penistone and Stocksbridge highlighted significant elements of the relevant legal framework in her speech at that point. In my view, setting out a test that is separate to the Mental Capacity Act, particularly in respect of the impairment of judgment, which is not then defined in any way, would undermine that Act, which has to be the cornerstone of the Bill.

--- Later in debate ---

[Lewis Atkinson]

My hon. Friend is absolutely correct. There are clearly further safeguards in those provisions, and also in the training provisions that we have already discussed. When the Secretary of State makes provision on training and assessment in respect of capacity and related matters, it is clear to me that they will do so with reference to some of the mental health conditions that the hon. Member for Richmond Park and others have referred to. Yesterday we agreed to amendment 275—which I was honoured to move—to ensure that people have had discussed with them “all appropriate” care, including psychological support, which further covers capacity. I would be absolutely horrified if there was any suggestion that people with mental health conditions should not have full access to all the support that may be beneficial.

[Sarah Olney]

Will the hon. Gentleman address the point that the requirement to refer for specialist psychiatric support is a requirement in similar legislation in other parts of the world—in Oregon, in California, in the state of Victoria in Australia, and in other jurisdictions that we heard evidence from? It is written into their legislation and provides a crucial extra safeguard, which is separate from the judgment about capacity because it is deemed to be so important.

[Lewis Atkinson]

Indeed, and that is why I support amendment 6, which we have just debated, to mandate referral for psychiatric assessment in cases where there is any doubt whatever. I think we have incorporated those safeguards and more but, fundamentally, as Chris Whitty said in evidence, for this legislation to be as secure as possible, we have to base it on the Mental Capacity Act, which has been tried and tested through the courts for more than 20 years.

The insertion of language talking about impairments of judgment clearly deviates from that Act, where an impairment test is already set out. I do not feel that is appropriate. I absolutely applaud the sentiments behind the amendment, but I feel we have sufficiently strengthened the Bill elsewhere and that the MCA and other provisions give the safeguards and the reassurance that we need on these issues.

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

Sarah Olney Excerpts

Committee stage
Tuesday 11th March 2025 Public Bill Committees

[Danny Kruger]

The hon. Lady is absolutely right. We will address in later debates the point that insufficient attention will be given to the reasons why an application has been refused. If an application has been refused on the grounds of coercion, a future doctor will not necessarily know that that was the reason. As the hon. Lady says, in cases of coercive control there is a very real danger that if a person has been unduly influenced to seek an assisted death and the doctor declines their application, possibly because they detected coercive control, the patient can then be coerced, or influenced, into starting again with a new doctor. There is nothing to stop that in the Bill. We have a real problem, and I hope the Committee will consider the amendments.

[Sarah Olney (Richmond Park) (LD)]

It is a pleasure to serve under your chairmanship, Sir Roger. I will speak to my amendments 458 to 460, which would tighten the process around seeking a determination from a second independent doctor if the first has refused to say that the criteria are met. The amendments relate to clause 10, which I will say more about when we come to it, but they have been selected for debate in this group.

The risks of abuse in seeking a second independent doctor’s opinion are well illustrated by the evidence we have received from Dr Sharon Quick, the president of the Physicians for Compassionate Care Education Foundation, who tells us about the experience of Dr Charles Bentz, who refused to provide a second opinion for a physician-assisted suicide for a patient he had referred to an oncologist for cancer treatment. The co-ordinating doctor persisted and clearly found a compliant second opinion, as two weeks later his patient was dead.

Dr Charles Bentz said in his testimony:

“I was caring for a 76 year-old man who came in with a sore on his arm. The sore was ultimately diagnosed as a malignant melanoma, and I referred him to two cancer specialists for evaluation and therapy. I had known this patient and his wife for over a decade. He was an avid hiker, a popular hobby here in Oregon. As he went through his therapy, he became less able to do this activity, becoming depressed, which was documented in his chart.

During this time, my patient expressed a wish for doctor-assisted suicide to one of the cancer specialists. Rather than taking the time and effort to address the question of depression, or ask me to talk with him as his primary care physician and as someone who knew him, the medical oncologist called me and asked me to be the ‘second opinion’ for his suicide. She told me that barbiturate overdoses ‘work very well’ for patients like this, and that she had done this many times before.

I told her that assisted-suicide was not appropriate for this patient and that I did not concur. I was very concerned about my patient’s mental state, and I told her that addressing his underlying issues would be better than simply giving him a lethal prescription. Unfortunately, my concerns were ignored, and approximately two weeks later my patient was dead from an overdose prescribed by this doctor. His death certificate, filled out by this doctor, listed the cause of death as melanoma. When I reviewed his chart, the radiation oncologist documented a clear diagnosis of depression.

My patient did not die from his cancer, but at the hands of a once-trusted colleague who failed to recognize and treat his depression. This experience has affected me, my practice, and my understanding of what it means to be a physician. What happened to this patient, who was weak and vulnerable, raises several questions that I have had to answer.”

I appreciate that, under the Bill, Dr Bentz could not have been the independent doctor as he already knew the patient and was treating him, but in that case that contributed to enhanced safety. Dr Bentz’s example illustrates the real risks of abuse in a person being able to seek the opinion of a second independent doctor. The starting point is that the task of the independent doctor is not that of a normal doctor. It is not to cure the patient or to provide advice about medical treatments: it is to check whether the eligibility requirements are met. It is a decision-making function, not a medical one—albeit, of course, a decision-making function that is informed by medical expertise.

In the light of that function, it is not appropriate for someone to seek another decision simply because they do not like the answer that has been given. The independent doctor is asked to apply an objective set of criteria against the evidence in front of them in order to make an assessment. It is not the case—or it should not be—that a different doctor would come to a different assessment based on the same criteria and the same evidence. If we are doing our job properly in the Committee, we should not expect that a second opinion could be arrived at.

I have no objection to provision being made for a person to see a second independent doctor if the first did not manage to finish the task. Nor do I object in respect of cases in which there is a change of circumstances—for example, if the patient’s condition deteriorates to such a degree that although the first independent doctor thought the six-month prognosis test was not met, it becomes clear that it is met—which is the point of my amendment 458. In such circumstances, it would make sense to allow the patient to go to a second independent doctor. Although my preference in such a situation would be to go back to the original independent doctor and ask them to reconsider in the light of the change of circumstances, that may not always be possible. Amendment 458 is an attempt to find a middle ground.

Amendment 459 seeks to reduce the possibility of abuse by ensuring that the second independent doctor has available the reasons why the first independent doctor concluded that the person was not eligible. That would allow the second independent doctor to approach the assessment with open eyes. Such a report would be particularly useful when it comes to the detection of coercion or pressure, as the first independent doctor might have spotted something that the second independent doctor might not easily see.

Let us consider the evidence of Dr Tim Howard, who has been deeply involved in end-of-life palliative care and assisted dying for many years. He has been a non-exec director of a health authority, a member of an ethics committee, a postgraduate teacher and, finally, chair of the General Medical Council fitness to practise tribunals, dealing with complex medico-legal principles and decisions in public. He also helped to set up the Medical Practitioners Tribunal Service, which separated medical standard setting and investigation from adjudication.

Dr Howard says:

“I remain uncomfortable that when either doctor, the assessing doctor or the independent doctor, declines to agree with a request for”

assisted dying,

“they take no further action. I feel that the reasons for their refusal should, as well as being given to the patient, be recorded in the patient’s notes, and given to any ‘second opinion’ independent doctor. This is not an attempt to bias; it is a value judgement that criteria are not being met, and as such, is sharing an early warning to be extra careful.”

The Committee should note that he has, in his own words,

“been a strong proponent of medical assistance in dying…and a member of Dignity in Dying for many years.”

[Danny Kruger]

It does seem an extraordinary gap in the Bill, but I am afraid it is not unique to this Bill. In countries where assisted dying in some form is legal, there are remarkable failures to insist on the proper recording of applications that are declined or about which there are concerns. This speaks to the general cloud of unknowing that we are operating in. Does the hon. Lady agree that were we to pass the Bill, it would be great if, at least in this country, we kept proper records?

[Sarah Olney]

The hon. Member is exactly right. An assessment of whether somebody should qualify for assisted dying needs to be based on objective criteria. If those are not met, the only way that a second independent doctor should have a role is if either the circumstances have changed or, for whatever reason, the first doctor is unable to reach a conclusion. There must not be a situation in which the first doctor has made one decision and a second doctor arrives at a different decision, because that would imply a variability in the way the objective assessments are made. Not tightening this loophole would imply that we are prepared to allow such a variability across the medical profession, and I do not think we should allow that.

My final amendment in this group is amendment 460. I am concerned that the word “particular” in clause 10(3) negates the subsection’s purpose of ensuring that only one second opinion from the co-ordinating doctor can be sought, because a person could withdraw their first declaration, make a new one and start the process afresh; that declaration would then not be the “particular” first declaration. By removing “particular”, the loophole would be closed, and the safeguard would be made more effective. This concern was brought out well in Disability Labour’s written evidence:

“We are concerned that whilst 10(3) only allows for one second opinion to be sought, there appears to be nothing in the bill that stipulates a waiting period before a new application can be made. This risks applications being repeated until a supporting opinion can be obtained, thus negating the purpose of 10(3).”

I hope the Committee will accept my amendments.

[Dr Simon Opher (Stroud) (Lab)]

I thank the hon. Member for Richmond Park for her considered amendments. I would like to go through all the amendments in the group.

Amendment 348 is about the doctor communicating the outcome of the assessment, but I understand that that is already covered in clause 8(5)(b), which states that, having carried out the second assessment, the independent doctor will

“provide each of the coordinating doctor and the person who was assessed with a copy of the statement.”

I therefore do not think the amendment is necessary—it would be doubling up.

--- Later in debate ---

On the idea of doctor shopping, one of the provisions in the Bill is specifically concerned with that: it allows one, and only one, second opinion to the independent doctor. In medical practice, it is normal and fair that a patient has one second opinion on any assessment, so it is fair to the patient that they can go back to the co-ordinating doctor and get referred for a second opinion from another person.

[Sarah Olney]

Will the hon. Gentleman give way?

[Danny Kruger]

Will the hon. Gentleman give way?

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

Sarah Olney Excerpts

Committee stage
Tuesday 11th March 2025 Public Bill Committees

[Stephen Kinnock]

This is one of the amendments on which the Government have worked with my hon. Friend the Member for Spen Valley to ensure that the Bill is legally robust and workable. As the Bill is currently drafted, in clause 11 there is provision to replace a registered medical practitioner acting as the co-ordinating doctor if they become ill or die. However, there is no similar provision to replace a registered medical practitioner acting as the independent doctor should they be unable to complete their role.

Amendment 205 makes provision under clause 10 that a further referral may be made by the co-ordinating doctor to another independent doctor if the second independent doctor becomes unable or unwilling to continue to make a report of their assessment due to their death or illness, provided that the second independent doctor has not prepared a report. It would thereby ensure internal consistency in the Bill in relation to this matter.

[Sarah Olney (Richmond Park) (LD)]

I reiterate the concern I raised when speaking to my amendments this morning: as far as I can see, seeking the second opinion of a second independent doctor allows the person seeking assisted suicide to have a second bite at the cherry if their first independent doctor has not granted permission. I do not think anyone has an objection to going to a second independent doctor if the first independent doctor has been unable, through either death or illness, to complete the task; nor is there any objection if there has been a material change of circumstances, which my amendment 458 sought to add.

However, the possibility of seeking the view of another doctor simply because the first one did not give the desired answer is a troubling one. There is no objection to patients seeking a second, third or even fourth opinion in medicine when it is about what different treatment pathways might be available, but there is a crucial difference between seeking different appropriate treatment options and what is being proposed in the Bill. In the Bill, the function of the two doctors is not primarily diagnostic or advisory; it is a safeguarding role.

The doctors will have been entrusted by Parliament to make sure that the criteria for assisted dying are met. Their determination makes the difference between a lawful act and the commission of an act that, as per clause 24, Parliament would still regard as sufficiently serious to be a crime. Their role is therefore that of a decision maker, and in no other setting can someone go to a different decision maker if they do not like the answer given by the first. Even in appeals before our courts, an appellate judge would not interfere with a decision simply because they would have reached a different conclusion; the appellate judge must consider that the decision was in some way incorrectly reached.

It is also true that in some settings one can ask a decision maker to reconsider a matter, but that is not what is being proposed in clause 10 either. Instead, the clause allows the person to try again with a different referee if the first one did not give the desired answer. It is true that there is an added layer of protection from the High Court or the possibility of a panel, but under the Bill as it currently is there is no procedure whereby the High Court or the panel will hear from the first independent doctor. That is concerning. They would have to go simply on the basis of the second independent doctor, without any awareness of why the two disagreed.

[Lewis Atkinson]

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

[Sarah Olney]

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

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

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

that is, assisted dying. He goes on:

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

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

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

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

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

[Rebecca Paul]

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

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

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

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

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

--- Later in debate ---

Replacing the coordinating doctor on death etc

[Sarah Olney (Richmond Park) (LD)]

I beg to move amendment 461, in clause 11, page 7, line 15, leave out “or otherwise”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 310, in clause 11, page 7, line 23, at end insert

“and

(c) to ensure the High Court is notified of the substitution of the coordinating doctor and the reason for the substitution.”

This amendment would include ensuring the High Court is notified of substitutions of the coordinating doctor in the list of matters the Secretary of State may by regulations make provision for.

Amendment 309, in clause 11, page 7, line 23, at end insert—

“(3) Regulations under subsection (1) must include provision to require the reassessment of the patient under section 7.”

This amendment would require a regulations covering the replacement of the coordinating doctor to include a reassessment of the person by the new coordinating doctor.

Clause stand part.

[Sarah Olney]

The amendment would remove the phrase “or otherwise” in the clause. All I am proposing is for the wording to be consistent with amendment 205 to clause 10, which has just been agreed. It does not specify “or otherwise”, but simply uses the words,

“the practitioner dies or through illness is unable or unwilling”.

What might “otherwise” incorporate? It indicates that there might be a range of reasons beyond death or illness why the co-ordinating doctor would drop out. In many ways, I am trying to probe what the other reasons might be. If there are no other reasons, and consistent with amendment 205 that we have just agreed, we should drop the phrase “or otherwise”.

--- Later in debate ---

[Kim Leadbeater]

I will speak briefly about amendment 461. A co-ordinating doctor is central to the whole process set out in the Bill, from start to finish. If a co-ordinating doctor becomes unavailable, a replacement would need to be found. There may be a number of reasons, not restricted to the doctor’s own death or illness, why that could happen. We have already heard a few examples—it could be retirement, maternity leave or anything going on in that doctor’s personal life. A close family member might fall ill or die, or something else might happen in the doctor’s life that forces them to withdraw. We have talked a lot about patient autonomy, quite rightly, but we need to think about the autonomy of the doctors involved in the process as well. It is therefore important that they have the ability to step away, as set out in clause 11. Additionally, I associate myself with the Minister’s comments about amendments 309 and 310. It feels as though those amendments do not necessarily do what was intended.

[Sarah Olney]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 206, in clause 11, page 7, line 24, leave out subsection (3).—(Kim Leadbeater.)

See the statement for Amendment 188.

Clause 11, as amended, ordered to stand part of the Bill.

--- Later in debate ---

[The Chair]

I should let the hon. Member know that I am happy for her to make five speeches, as she has indicated, but each one needs to be specific to the clause and not replicating the previous speech.

[Sarah Olney]

I will speak briefly about an important point that the hon. Member for Spen Valley made. I want to get it on the record that I disagreed with something that she said. We heard a lot in the evidence sessions about the desirability of a multidisciplinary approach or a multi-professional team, and I listened particularly carefully to Dr Sarah Cox, who gave oral evidence to the Committee on 28 January on behalf of the Association for Palliative Medicine of Great Britain and Ireland. She made important and interesting points regarding the desirability of the involvement of multidisciplinary teams in relation to her area of expertise: palliative care.

I am anxious that the panel that the hon. Member for Spen Valley is now proposing is being presented as a response to the comments of Dr Sarah Cox in relation to multi-professional teams, when it is clear that she meant something quite different. My interpretation of what she said was that the initial assessment should be done by a multi-professional team; what is being proposed here is something that happens much later in the process.

[Kim Leadbeater]

To be clear, the point I have tried to make with regard to the evidence that we received was just that there is a need for a multidisciplinary approach, wherever it happens.

[Sarah Olney]

I am glad to have had that clarification; however, it is really important to reflect on the fact that Dr Sarah Cox said that it would be considerably preferable to have the input of a multidisciplinary team at the earliest possible stage. That is not what is being proposed with these new clauses.

[Kim Leadbeater]

The point is that it has to happen at every stage, and I think the evidence that we heard was that it does happen. I know from the experiences of family and friends of mine who have had cancer that it does happen. There is a multidisciplinary approach; there is an oncologist, a nursing team and a doctor. That does happen, and nothing in the Bill will take away from that.

[Sarah Olney]

I thank the hon. Member, but I think she is responding to a slightly different point from the one that I made.

There was further written evidence from Dr Doré, the honorary secretary of the Association for Palliative Medicine, on 25 February. He wrote:

“To clarify any misunderstanding, the current Bill does not align with the standard multi-professional team…decision-making process used across the health service.

Under the Bill, patient assessments are conducted solely by two doctors without input from a wider MPT. While an amendment proposes the involvement of a panel—including a social worker and psychiatrist—this panel is introduced only at the end of the process and does not participate in the patient’s direct assessment.

We wish to make it clear that the point that Dr Cox was making in oral evidence was that having two independent doctors, working alone, is not an adequate model to safeguard either patients or professionals, and that stipulating that the initial assessments must be carried within a multi-professional team model would strengthen the Bill.”

--- Later in debate ---

[Kim Leadbeater]

Does the hon. Member not agree that by accepting amendment 6, tabled by the hon. Member for St Albans, we have early intervention with psychiatric analysis at a very early stage, when either of the doctors feels it is necessary?

[Sarah Olney]

I am grateful for amendment 6 and to my hon. Friend the Member for St Albans for tabling it. I put on record, however, that I do not think that the panel that we are discussing addresses my earlier concerns. I wanted to make that absolutely clear by highlighting the further evidence from the Association for Palliative Medicine. The panel proposed by this group of amendments does not address its concerns, or the concerns of many other people who were saying that there needs to be a multi-professional team.

[Jake Richards]

I rise to speak in support of new clauses 14, 15, 17 and 21 and the accompanying amendments. I hope also to deal with some amendments tabled to new clause 21.

On Second Reading, I and many other hon. Members said that the Bill was the strongest and safest assisted dying law in the world. I want to be clear that I stand by every word of that, but this change will make the Bill far stronger and far more resilient to questions of capacity and coercion and therefore far safer. It will ensure a further independent layer of assurance: a panel of experts chaired by a senior lawyer to hold the process to account, to ensure that every avenue of inquiry has been explored and to hold professionals in our healthcare system to account when it is appropriate to do so.

The change will replace a single High Court judge, a person with no particular expertise in the issues at hand, with a panel that will adopt a more holistic approach. The social worker will delve a little deeper into the personal circumstances of each individual. The psychiatrist will ask any necessary questions about capacity. They will serve alongside a senior lawyer to ensure that the process is necessarily formal and strict. They will have the powers to make further inquiries if they so wish.

On and after Second Reading, there were legitimate questions about the High Court function—what exactly were we asking the judge to do? I maintain that a High Court judge could have overseen the process, but it is far better and more pertinent to the issues at hand to have a multidisciplinary process involving a social worker and a psychiatrist.

This is our lawmaking process working efficiently: debate has pushed my hon. Friend the Member for Spen Valley to think again. Working with the Government —whose role continues to be to ensure that the Bill will be workable if it is to gain Royal Assent, while remaining neutral on the principle—she has been creative in tailoring a process to the matters at hand. That must be welcomed.

This is new law. The change that the Bill would enact is profound and therefore requires a very new safeguarding process. This is the key point. The panel would not be there to adjudicate on a dispute, undertake a trial or undertake an inquiry; it would be there to ensure that the process is safe. A person would come to the panel seeking assistance to which they are entitled under the law, and the panel would ensure that the process through which their eligibility has been decided has been rigorous and safe.

It is also important to note that the panel would simply regulate and scrutinise an ongoing doctor-patient relationship. Even after a certificate of eligibility has been received, there is a period for reflection and continued assessment. That is crucial, because it means that normal rules of appeal are not appropriate—I will come back to some of the amendments in that regard. Even once the panel’s work is done, the co-ordinating doctor and the commissioner will remain available for reconsideration and oversight.

I want to deal with some of the criticisms that have been levelled at the change set out in the amendments tabled to new clause 21 and others. To my mind, the process should not be adversarial, because it is inherently inquisitorial. What is the dispute that is being decided? The person is deemed to have capacity by two doctors, and perhaps a psychiatrist, to make a decision, and is seeking an eligibility certificate. The starting point must surely be that the person should be allowed to do so. To set up some bizarre dispute where none exists would be counterproductive and unsettling to the person at the centre of the process. It would be a waste of public funds, but more importantly it would be a waste of time—time, in the context of a person who is dying.

The process is not analogous to the Court of Protection, where there are disputes as to capacity, best interests and welfare. It is not analogous to a court approval hearing, where there may be legal arguments as to the appropriate nature of an award or the arrangements for it. It is not analogous to a deprivation of liberty order, where in all likelihood a person would seek not to be deprived of their liberty. It is not analogous to private children’s proceedings, where the child’s welfare is paramount. This is a person seeking help for themselves. The principle of choice and autonomy at the end of life means that that process must be patient-centred and begin from an appreciation of those principles.

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

Sarah Olney Excerpts

Committee stage
Wednesday 12th March 2025 Public Bill Committees

[Sarah Olney (Richmond Park) (LD)]

To pick up on what the hon. Member for Spen Valley said, the multidisciplinary panel comes at the very end of the process. She has talked about the different stages, but they all occur in isolation. There is a doctor, then there is another doctor, and then there might be a psychiatric referral. We heard clearly in oral evidence about the value of the multidisciplinary panel referring to each other and taking evidence collectively. The strength of it would be that it occurred at the beginning of the process. I wonder whether the hon. Member will reflect on that.

[Daniel Francis]

I think that is the case. As the hon. Member said yesterday, people from those professional fields—in their written evidence, particularly—asked to be included in the process, but I do not think they were asking to be included at the end of the process; I think they were asking to be included earlier.

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

Sarah Olney Excerpts

Committee stage
Wednesday 12th March 2025 Public Bill Committees

[Danny Kruger]

I regret that my right hon. Friend is making that argument. The fact is that the panel is already going to consider whether it is appropriate. There might not be some professional who is there with the purpose of suggesting that there are other things that the panel should consider, but the patient is already lying there waiting for powerful people in another room to make a decision about whether they are going to get an assisted suicide or not. That process is already going on.

On my right hon. Friend’s point that it is intolerable for somebody to hear the case made against their assisted death, let me put to him an alternative hypothesis. Rather than somebody in the situation that he describes, let us imagine somebody who is the victim of years of coercive control, who has undiagnosed mental health conditions, who is feeling a burden on their family and whose relatives want their money. None of that has yet been fully identified through the initial doctor’s stage of the process, but it has been commented on in some of the evidence that the multidisciplinary team heard. That person might hope that somebody is there making the case for them, as might their family.

It is totally appropriate for a court to hear that this procedure should not go ahead because of those other factors, which are only now being properly understood by the decision maker. That decision maker is doing so openly, not in a private session. The decision is being made not by people who are committed to the procedure and process of assisted suicide, but by an independent judge, sitting in their judicial capacity in open court, with all the safeguards and accountability that the judicial system has. That feels to me like a perfectly appropriate safeguard, and I suggest that it is, in principle, what the House of Commons thought they were getting when they supported this.

[Sarah Olney (Richmond Park) (LD)]

I am just reflecting on the right hon. Member for North West Hampshire’s intervention. Does the hon. Gentleman not agree that the purpose either of the panel or the High Court judge is to establish beyond all doubt that if a person is assisted in their death, no crime is being committed, and that in order to establish that, we need to apply the highest standards of evidence? Whether an adversarial or an inquisitorial process is used to collect that evidence, there must be some sort of process. That may be uncomfortable for the patient but it is necessary for their friends, relatives and the doctors being asked to assist. That is really what we are trying to achieve.

[Danny Kruger]

I am grateful to the hon. Lady for making that absolutely central point. This is a judicial process, and a decision is being made. I recognise that the hon. Member for Spen Valley has correctly abandoned the claim that this is a judge-led process—because it is not—but the function of this panel will be essentially judicial, not least because the decision to proceed with an assisted death entails the people involved in administering it being exempt from criminal law and not being liable to prosecution under the Suicide Act 1961. We have made an exemption for what is otherwise a crime, and if they do not get the go-ahead from this panel, they will be committing a crime if they proceed. So in all essence, a judicial decision is being made, and it is right that we have the protections of a court.

Let me make a couple of brief points about the practicalities, and they have partly been made by others. The central point is that we do not know whether the professionals who will be required to take part in this panel have the capacity to do so. We know that the judges do not have the capacity under the current design of the law, which is an essential flaw—or we think they do not, because that point has been comprehensively argued by the judiciary and I suspect by officials at the Ministry of Justice. What we do not know is whether the psychiatry and social work professions have adequate capacity. There has been no impact assessment, and we have had a lot of comments from representative bodies expressing anxiety about the capacity of these professions to supply the panels.

The point I am trying to make is that we cannot, and should not, legislate in the dark. We should not draft laws in ignorance of these basic facts. We need to know whether the law before us is workable in the real world, and I would be grateful for clarification on that from Ministers when they speak to this clause. In my view, we need robust and clear data on how many professionals might take up the posts, and more importantly, we need the clearest and earliest warning of where there might be deficits that would compromise the entire system, particularly around the capacity of psychiatrists. We have a central problem with ignorance around capacity, but my strong view is that we do have a problem with capacity.

An important point was made by Alex Ruck Keene in evidence around the judge-led process, which we discussed earlier. His point was that it would not be possible for the judge to decline an assisted death on the basis of what he calls service denial—that is, there is not enough social care treatment or medical treatment available for the patient. If the reason why the patient were to receive an assisted death was that the local authority would not provide them with improvements to their home or funding, or that they could not get the medical treatment they wanted early enough, that would be a legitimate reason, or would not be a reason not to proceed with an assisted death. That is a very grave concern to us, and it is what happens in other countries. We heard this morning about evidence that when a patient is denied the medical or social care that they need to carry on living and living well, they are offered an assisted death. In those circumstances, I would really hope that the decision maker would conclude that it is wrong that we offer an assisted death, and that we in fact need to insist that they get the support they need to live well. I reference that because, as I understand it, there is no opportunity in the new clauses for the panel to decline an assisted death on grounds that it is being sought only because of the inadequacy of the wider care system.

It has been suggested that the judicial option remains, through the judicial review system. Other hon. Members have responded to that point, so I will not labour it. However, I want to make the point that new clause 17 makes judicial review less likely because it offers the opportunity for a sort of appeal. It is an appeal only in one direction—against a refusal—but there is a sort of appeal process in the system. As my hon. Friend the Member for Reigate said, if there is a JR, it is likely to take a long time. There is nothing about whether legal aid will be arranged. The state has proposed to pay for people to go through the assisted dying process, but is not prepared to pay anybody to challenge it, so they would have to raise their own money. It would also take a long time. It would be much simpler and better, whether it is a panel or a judge, to set up the system in a way that allows both sides to be told and that does not rely on a cumbersome judicial review system.

I reiterate that I support the multidisciplinary team. It is a very good thing that the hon. Member for Spen Valley has decided to introduce a proper stage at which a psychiatrist and a social worker will have to consider the application properly. I have concerns about how it would actually work, which I will come on to, but having a multidisciplinary team is in principle the right system. I stress that the professionals who made the case for multidisciplinary teams as part of the assessment process have not endorsed the new clauses. They are not saying that we have adequately met their concerns about the process.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Sarah Sackman)]

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

As my hon. Friend the Minister for Care and I have made clear throughout debate, the Government continue to remain neutral on the Bill and do not have a position on assisted dying. Once again, my remarks will focus on the legal and practical impacts of the amendments, with a view to assisting Committee members. I will first speak to amendments 371 to 373, 377, 378, 381, 388, 390 and 391, new clauses 14, 15, 17 and 21, and new schedules 1 and 2, all tabled by my hon. Friend the Member for Spen Valley.

In executing our duties to ensure that the legislation, if passed, is legally robust and workable, the Government have worked with my hon. Friend the Member for Spen Valley in relation to the amendments, which propose the voluntary assisted dying commission and the panels. They reflect my hon. Friend’s intent to replace the court approval process that is currently set out in the Bill. I confirm that this change was driven not by capacity concerns from within Government, but by the Bill promoter’s policy intent. Let me be clear: the High Court stage could be made to work, but if the Committee and Parliament elect for the commissioner and panel model, the state will work to deliver that.

New clause 14 and consequential amendment 391 would provide for the establishment of a voluntary assisted dying commissioner. In keeping with other appointments of this significance, the commissioner would be appointed by the Prime Minister, and the individual in post must hold or have held office—so it is not sitting judges, but could be a retired judge—as a judge of the Supreme Court, the Court of Appeal or the High Court.

New clause 14 sets out the central functions of the commissioner, which will be detailed further in new clauses 15 and 17 and new schedule 1. The commissioner would receive documents, including the reports from the co-ordinating doctor and declarations under the legislation, make appointments to the list of persons eligible to sit on assisted dying review panels, and refer cases to those panels, which would replace the role of the High Court in the original draft of the Bill. In addition, the commissioner would have the responsibility for monitoring the Bill’s operation and reporting annually to Parliament, which we will no doubt come to in clause 34. It is important to pause there, because that is one aspect in which the commissioner model is distinct from that of a court or tribunal. It will serve multiple functions, not least the monitoring of the Bill’s operation and reporting on that annually to Parliament.

New schedule 1 contains practical arrangements for the office of the voluntary assisted dying commissioner, as established in new clause 14. In practice, we anticipate that the commissioner’s office will be a non-departmental public body. The establishment of such an office to support the Government-appointed chair or commissioner is common practice for roles of this nature. One such model is the Investigatory Powers Commissioner, which is chaired by a person who is holding or who has held high judicial office. The schedule also introduces the role of a deputy commissioner, who, like the commissioner, must have been appointed by the Prime Minister and hold or have held office as a judge of the Supreme Court, the Court of Appeal or the High Court.

Both the commissioner and deputy commissioner would be appointed for terms of five years, with their remuneration set by the Secretary of State. The commissioner would have the ability to appoint their own staff, having obtained approval from the Secretary of State in regard to the number of staff, the remuneration and the terms, as well as providing an annual statement of accounts. In the ordinary way, such a public body would be subject to other statutory provisions, not least the Equality Act 2010.

New clause 15 would establish the mechanism for the referral by the voluntary assisted dying commissioner to an assisted dying review panel. When the commissioner receives a first declaration from the person seeking assistance, and reports from the co-ordinating and independent doctors as to their assessments of the person—including a statement by those doctors as to the person’s eligibility for assistance—they would be required to refer the case to a panel as soon as reasonably practical. In practice, the task of organising the work of each panel would fall to the commissioner’s office. The co-ordinating doctor would be required to inform the commissioner where a first or second declaration is cancelled. Where the commissioner is informed of the cancellation of the first declaration, they must not refer the case to a panel, or must inform the panel to disregard the application if already referred.

Amendments 371, 372, 373, 377, 378, 381, 388 and 390 are all consequential amendments on new clause 21, and together establish the mechanism for the consideration of cases by the assisted dying review panels in place of the High Court. Panels would be required to review each case and issue a certificate of eligibility where they are satisfied that all requirements set out in the Bill have been met.

[Sarah Olney]

I seek clarification. As drafted, in clause 12(1)(c), the High Court would give

“a declaration that the requirements of this Act have been met”,

but in new clause 21(6)(a), the panel is required to issue a certificate of eligibility, to which the Minister just referred. I seek the Minister’s guidance on whether it is the Government’s view that the High Court declaration has equal weight in law to the certificate of eligibility set out in new clause 21. I ask particularly because that certificate will be relied on for the purposes of suspending the Suicide Act 1961, under which a criminal offence would otherwise have been committed. The certificate of eligibility will need to be relied on to demonstrate that no criminal offence has been committed under that law. Is it the view of the Minister and the Government that a High Court direction, as originally required, can now be fully replaced by, and have equal weight with, a certificate of eligibility?

[Sarah Sackman]

As I understand it, everything has to be internally coherent in whatever the final draft of the Bill is. Within this structure, because in this case it is a panel that issues the certificate, it is its own sui generis certificate appropriate to this process. The declaration that was referred to in the earlier draft is one that the High Court would normally do. Given that this is on the face of the Bill, and will be in primary legislation, it would have legal force and would, if it were internally coherent with the rest of the legislation, have the legal effect of operating coherently with the criminal offences and, indeed, with the suspension of the Suicide Act, as the hon. Lady just asked. That is my understanding.

[Sarah Olney]

My original question was more about whether it has the same legal force as a High Court direction.

--- Later in debate ---

[Sarah Sackman]

I drew the comparison for the purpose of showing where judges and legal experts are deployed in a multidisciplinary forum that is not a court or tribunal. I was not suggesting that there is a straight-line analogy. After all, a Parole Board panel is performing a different function to make a global assessment of risk. That is what it is ultimately doing; it is not strictly speaking an adversarial process in that sense.

The situation that the Bill addresses is that of an individual seeking to establish their eligibility for a right that—if the Act is passed—Parliament will have conferred on those who meet the criteria. It is not an adjudication. It is the panel’s function to assess, through the various conversations and provisions and by interrogating the information that has been provided, whether it is properly satisfied that the eligibility of the person’s election to avail themselves of that right is sound.

[Sarah Olney]

I am trying to clarify this for my own benefit, because I am not familiar with some of these procedures. Is there a difference between a High Court judge leading an inquiry or sitting on a panel, using their legal experience to provide advice or recommendations or give an opinion, and having a judge sitting in the High Court, who, under the original wording of clause 12, would be giving a direction? If there is a difference, have we not crossed from one role to the other by introducing a panel rather than a High Court direction? Does that matter for the purposes of the legislation?

[Sarah Sackman]

To be absolutely clear, what we are discussing reflects the intent of my hon. Friend the Member for Spen Valley. It is important to break it down. We have a judge in the role of the commissioner, and the commissioner will set up the framework and guidance for how the panels will operate and will lend their expertise. Our judges often sit on the Civil Procedure Rule Committee, developing the appropriate practice to govern the process in question. In this case, it would be the process of providing the third layer and the assessment whether the eligibility criteria have been met.

The commissioner would also—and this is where the role is distinct from that of a court or tribunal—provide a monitoring and reporting function to Parliament on the operation of the Act. That is a fundamental distinction from the model that we will have if we pursue clause 12, because in that case each application for an assisted death would go to whichever High Court judge happened to be sitting on that day. There would be no requirement for particular expertise on the part of the High Court judge, and that judge would not have to report on the operation of the Act. It is a different model that my hon. Friend has elected.

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[The Minister for Care (Stephen Kinnock)]

It is a pleasure to serve under your chairship, Sir Roger. We have been working with my hon. Friend the Member for Spen Valley on these amendments, and changes have been mutually agreed by her and the Government. The amendments aim to ensure that the Bill, if passed, is legally and operationally workable. I offer a technical and factual explanation and rationale for the amendments.

Amendments 469 and 472 are supplementary to amendment 208, which provides that the form of the statement made by the co-ordinating doctor, in relation to the second declaration, is to be set out in regulations. Amendment 472 sets out the information that the regulations must require the statement to include, as well as some additional declarations by the co-ordinating doctor.

Amendment 470 is supplementary to amendment 207, which provides that the form of a second declaration is to be set out in regulations. Amendment 470 sets out the information that the regulations must require the second declaration to include, as well as some additional declarations by the person. That applies to regulations made under clause 13(3)(a). I hope that was useful for the Committee.

Amendment 469 agreed to.

Amendments made: 372, in clause 13, page 9, line 12, leave out from third “the” to end of line 13 and insert

“certificate of eligibility was granted,”.

This amendment is consequential on NC21.

Amendment 373, in clause 13, page 9, line 17, leave out “declaration was made” and insert “certificate was granted”.—(Kim Leadbeater.)

This amendment is consequential on NC21.

[Sarah Olney]

I beg to move amendment 457, in clause 13, page 9, line 17, after “made,” insert

“and have not voluntarily stopped eating and drinking”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 471, in clause 13, page 9, line 27, leave out from “if” to “that” in line 28 and insert

“the coordinating doctor is satisfied (immediately before witnessing it)”.

This amendment removes wording which would suggest that a second declaration is made before it is witnessed.

Amendment 316, in clause 13, page 9, line 36, at end insert—

“(5A) If, when making the statement under subsection (5), the definition of “second period of reflection” under subsection (2)(b) applies, the coordinating doctor must make refer the person for urgent specialist palliative care.”

This amendment will ensure that there is an immediate referral to a specialist in palliative care due if the patient is likely to die within a month of the declaration from the Court.

Amendment 374, in clause 13, page 10, line 2, at end insert—

“(8) Where the coordinating doctor has—

(a) witnessed a second declaration, or

(b) made or refused to make a statement under subsection (5),

the doctor must notify the Commissioner and give them a copy of the second declaration or (as the case may be) any statement under subsection (5).”

This amendment requires the coordinating doctor to notify the Commissioner of witnessing a second declaration, and of having made or refused to make a statement under clause 13(5).

[Sarah Olney]

It is a pleasure to serve under your chairmanship, Sir Roger. I have tabled the amendment to exclude the possibility that somebody could render themselves, if that is the appropriate language, terminally ill by the mechanism of voluntarily stopping eating and drinking.

The Bill before us is based on the principle that assisted suicide should be limited to those who are already dying—those with a terminal illness and a prognosis of six months or less—but there is growing evidence that that safeguard could be undermined by a practice known as voluntary stopping of eating and drinking, or VSED. That is when a person with mental capacity deliberately chooses to stop eating and drinking with the intention of hastening death. VSED is sometimes framed as an exercise of choice at the end of life, but in jurisdictions where assisted suicide is legal, it is increasingly being used as a means to an end—a way for individuals who do not meet the legal definition of terminal illness to qualify for lethal drugs.

The logic is simple: a person has the right to refuse food and water, and if they do so, their health deteriorates and they may die within six months. Some doctors have accepted this as grounds to certify a patient as terminally ill—not because their underlying condition would have led to imminent death, but because of the self-imposed effects of dehydration and malnutrition. The strategy has become viable only because many jurisdictions have shortened or removed waiting periods for assisted suicide. The loophole works only if the time it takes to obtain lethal drugs is shorter than the time it takes to die from refusal of food and water. Under the Bill, the same loophole exists.

Clause 13(2)(b) states that if a doctor

“reasonably believes that the person’s death is likely to occur”

within one month, the standard 14-day waiting period can be reduced to just 48 hours. If a person stops eating and drinking, their death will almost certainly be likely within one month. In other words, a person who is not terminally ill could make themselves eligible for an assisted death within 48 hours simply by refusing sustenance. Proponents of assisted suicide have been explicit: this is not simply a theoretical possibility—it is a co-ordinated strategy.

[Kim Leadbeater]

I might be missing something—it has been a long day—but, presumably, by the time the patient has got to that point, they have been through the eligibility criteria with the two doctors. The hon. Lady said that they would not be terminally ill, but they would have been through all the assessment criteria at this point.

--- Later in debate ---

[Kit Malthouse]

And the panel.

[Sarah Olney]

The point is that we want to preclude the possibility, at whatever stage it might happen, that somebody could deliberately render themselves terminally ill by the voluntary stoppage of eating—

[Kit Malthouse]

But they already are terminally ill.

[Kit Malthouse]

Forgive me, Sir Roger. Will the hon. Lady give way?

[Sarah Olney]

I will.

[Kit Malthouse]

I share the confusion of the hon. Member for Spen Valley. By the time we get to clause 13, my understanding is that the two doctors and the panel are already satisfied of the person’s eligibility, so they are by definition terminally ill. I do not understand why they would then seek to render themselves doubly terminally ill by adding the characteristics the hon. Lady is talking about. Maybe I am getting confused. I could understand the hon. Lady’s case if she had made it way before, but at this stage the person has been through two doctors and the panel and got permission to go ahead. I do not understand why they would then starve themselves.

--- Later in debate ---

[Sarah Olney]

The point is that they may take the opportunity to use the further provision that exists for people whose death is expected within one month.

[Kit Malthouse]

But they do not need to if they have got to this stage.

[Kit Malthouse]

Sorry, Sir Roger.

[Sarah Olney]

I take the point, but I still think it is necessary to have this additional safeguard to close a loophole that means that people could render themselves terminally ill within the space of a month and use the opportunity presented by the additional provision in the Bill for reducing the 14-day waiting period. This is a real concern of people who have reviewed this legislation. There is a possibility, as has been seen in other jurisdictions, that people could—I do not necessarily want to adopt the right hon. Gentleman’s language—hasten their eligibility for assisted dying through this particular method. All I am asking is that we close the loophole so that people will not be tempted to follow that very damaging path.

Ordered, That the debate be now adjourned.—(Bambos Charalambous.)

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

Sarah Olney Excerpts

Committee stage
Tuesday 18th March 2025 Public Bill Committees

[Kim Leadbeater (Spen Valley) (Lab)]

It is a pleasure to serve under you this morning, Ms McVey. My amendments 374 and 471 serve to clarify that the second declaration must be made before it is witnessed—it is a drafting amendment—and to bring clause 13 in line with the reporting requirements elsewhere in the Bill. For the functions of the commissioner to be carried out effectively, including supervising the assisted dying panels and making annual reports on the legislation’s operation, it is essential that all relevant details and reports are made available.

I am unable to support amendment 457, in the name of the hon. Member for Richmond Park. As I said when we started discussing the amendment, I do not fully understand why it has been positioned at this stage in the process. The shorter period of reflection is a recognition that a person’s death is expected within a month, so they literally have a few weeks left of life.

[Sarah Olney (Richmond Park) (LD)]

That was the hon. Member’s response when I made my speech on the amendment in the previous sitting. I have reflected on that over the weekend. I still think that the issue of the voluntary stopping of eating and drinking is a very serious one that ought to be reflected somewhere in the legislation, but she is correct that, at this particular point, we are talking about the second period of reflection already being at an end, so it cannot be hastened in any way by such a measure. Therefore, I will be withdrawing the amendment.

[Kim Leadbeater]

I appreciate that; that is helpful and I thank the hon. Member. As the Minister said, a person whose death is approaching may have stopped eating and drinking for a number of reasons. They may simply be too ill. They may be unable to digest food. It may be that they have lost their appetite, or that they will be even more ill if they eat and drink, so it would seem particularly cruel to intervene on that basis at that point, but I appreciate her comments.

Amendment 316 in the name of my hon. Friend the Member for York Central seeks to mandate the action a doctor must take if a patient is likely to die within one month. Like other amendments, it goes against the basic principles that underlie the Bill—that the wishes of the person seeking assistance should be respected. Surely that is even more important than ever as they face their final weeks. As the right hon. Member for North West Hampshire said, palliative care will have been discussed at length throughout the assisted dying process. It is also worth noting, as the hon. Member for East Wiltshire said, that evidence from other jurisdictions with similar laws—Australia and America—shows that between 80% and 90% of people who have gone through the assisted dying process are already receiving palliative care, so I am not minded to support the amendment.

[Sarah Olney]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 207, in clause 13, page 9, line 20, leave out “Schedule 4” and insert

“regulations made by the Secretary of State”.

This amendment provides that the form of a second declaration is to be set out in regulations (rather than in Schedule 4).

Amendment 470, in clause 13, page 9, line 26, at end insert—

“(3A) Regulations under subsection (3)(a) must provide that a second declaration contains—

(a) the following information—

(i) the person’s full name and address;

(ii) the person’s NHS number;

(iii) contact details for the person’s GP practice;

(iv) specified information about the certificate of eligibility;

(b) the following further declarations by the person—

(i) a declaration that they have made a first declaration and have not cancelled it;

(ii) a declaration that they understand that they must make a second declaration in order for assistance to be provided under this Act;

(iii) a declaration that they are making the second declaration voluntarily and have not been coerced or pressured by any other person into making it;

(iv) a declaration that they understand that they may cancel the second declaration at any time.

In this subsection “specified” means specified in the regulations.”

This amendment provides that regulations about the form of a second declaration must make the provision mentioned in paragraphs (a) and (b).

Amendment 471, in clause 13, page 9, line 27, leave out from “if” to “that” in line 28 and insert

“the coordinating doctor is satisfied (immediately before witnessing it)”.

This amendment removes wording which would suggest that a second declaration is made before it is witnessed.

Amendment 208, in clause 13, page 9, line 38, leave out “Schedule 5” and insert

“regulations made by the Secretary of State”.

This amendment provides that the form of a statement by the coordinating doctor following the making of the second declaration is to be set out in regulations (rather than in Schedule 5).

Amendment 472, in clause 13, page 9, line 41, at end insert—

“(6A) Regulations under subsection (6)(a) must provide that a statement under subsection (5) contains—

(a) the following information—

(i) the person’s full name and address;

(ii) the person’s NHS number;

(iii) the coordinating doctor’s full name and work address;

(iv) specified information about the certificate of eligibility;

(b) the following declarations by the coordinating doctor (in addition to a declaration that they are satisfied of all of the matters mentioned in subsection (4)(a) to (d))—

(i) a declaration that they are satisfied that a certificate of eligibility has been granted in respect of the person;

(ii) a declaration that the second declaration was made after the end of the second period for reflection;

(iii) if the second declaration was made before the end of the period mentioned in subsection (2)(a), a declaration that they have the belief mentioned in subsection (2)(b);

(iv) a declaration that they are satisfied that neither the first declaration nor the second declaration has been cancelled.

In this subsection “specified” means specified in the regulations.”

This amendment provides that regulations about the form of a statement under subsection (5) must make the provision mentioned in paragraphs (a) and (b).

Amendment 374, in clause 13, page 10, line 2, at end insert—

“(8) Where the coordinating doctor has—

(a) witnessed a second declaration, or

(b) made or refused to make a statement under subsection (5),

the doctor must notify the Commissioner and give them a copy of the second declaration or (as the case may be) any statement under subsection (5).”—(Kim Leadbeater.)

This amendment requires the coordinating doctor to notify the Commissioner of witnessing a second declaration, and of having made or refused to make a statement under clause 13(5).

Clause 13, as amended, ordered to stand part of the Bill.

Clause 14

Cancellation of declarations

[Kim Leadbeater]

I beg to move amendment 375, in clause 14, page 10, line 9, at end insert—

“(1A) Where notice or an indication is given to the coordinating doctor under subsection (1)(a), the doctor must as soon as practicable notify the Commissioner of the cancellation.”

This amendment requires the coordinating doctor to notify the Commissioner of a cancellation of a first or second declaration.

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

Sarah Olney Excerpts

Committee stage
Wednesday 19th March 2025 Public Bill Committees

[Sarah Olney (Richmond Park) (LD)]

I beg to move amendment 273, in clause 29, page 17, line 33, at end insert—

“(1A) Regulations under subsection (1) must specify that the following information is collected for each assisted death—

(a) the person’s age,

(b) the person’s gender,

(c) the person’s ethnicity,

(d) the postcode of the person’s address at the time of their death,

(e) whether the person had a disability for the purposes of section 6 of the Equality Act 2010 (Disability), and

(f) any illness, disease or medical condition the person had that was deemed terminal for the purposes of section 2.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 274, in clause 34, page 20, line 43, at end insert—

“(2A) The Chief Medical Officer’s report must include an analysis based on information—

(a) provided to them under section (Collection of information on assistance),

(b) information required by regulations made under section 39B of the Births and Deaths Registration Act 1953 (Regulations: assisted dying).”

This amendment is linked to Amendment 273 and NC10 and provides that the Chief Medical Officer’s report must include an assessment/analysis of information received under that new clause.

New clause 10—Collection of information on assistance—

“(1) The coordinating doctor must, following the provision of assistance under section 18, record information on—

(a) how the process of providing assistance was carried out,

(b) the time taken from the ingestion or administration of the substance provided under section 18 to the time of death, and

(c) any complications or unforeseen circumstances that arose in connection with the ingestion or administration of the substance and how those were managed.

(2) The record created under subsection (1) must be made available to the relevant Chief Medical Officer.

(3) In this section ‘coordinating doctor’ includes a doctor authorised by the coordinating doctor to provide assistance under section 19.”

This new clause provides that the coordinating doctor (or other doctor authorised to provide assistance) must collect certain information on the provision of that assistance.

[Sarah Olney]

It is a pleasure to serve under your chairmanship, Mrs Harris.

We have discussed throughout the course of the Committee the importance of collecting good information on the operation of assisted dying, and I know that hon. Members will agree that understanding the impact of legislation on society, for better or ill, helps us to improve its operation and respond to any urgent issues that arise. To this end, my amendments and new clause specify that a few more pieces of information must be recorded by the doctor who facilitates an assisted death.

Recording the method, the time taken and noting any complications is not overtly onerous on the co-ordinating doctor, and these three pieces of information could be crucial to uncovering which drugs are most appropriate. It will also enable us to understand more broadly whether those who have assisted deaths are having good deaths. It would be deeply unfortunate if we were to introduce a mechanism intended to help those likely to die in great pain or with indignity, only for that mechanism to offer some patients an alternative kind of painful death. One of the ways we can learn which methods of assisted death are the most humane is to make careful notes of any complications and the time taken to die.

It is also critical that we understand the wider social picture of this significant social change, in particular with regards to equality considerations. Are there groups who are excluded from assisted dying? Are there groups who are over-represented? Should we treat one group’s over-representation as a demonstration of good access to the service, or should we see it as a failure elsewhere in the system? We can understand how those who face discrimination in our society are impacted by the Bill only if we collect this data, which is what my amendment proposes.

Dr Jamilla Hussain said that

“racism is also a specific issue within palliative care. We did a survey, post-covid, of staff across the nation working in palliative care. More than 1,400 people responded. The vast majority—more than 80%—were white British, but 40% said that they had witnessed or experienced racism within the end-of-life care sector. For ethnic minority groups, that is much higher. That leads to mistrust. I work in Bradford. We have lots of patients who are ethnically diverse in the hospital. Almost every week, one of the first things I have to reassure patients about is that I cannot legally do anything to shorten their life. This is front and centre of the fear for those patients and we see it all the time.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 190, Q247.]

As Dr Hussain highlighted there and at other points, racism exists in the palliative care sector. If we want to tackle discrimination, recording ethnicity and requiring the voluntary assisted dying commissioner to analyse the data would help.

Dr Sarah Cox told us:

“We need to make sure that there is not inequity in palliative care, so that you do not have to be white and rich and have cancer to get good palliative care.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 78, Q101.]

The consequence of failing on palliative care provision will lead to more people feeling they have no choice but to end their life early.

Collecting data would also help us to understand the legislation’s impact on women. I am pleased that the Committee agreed to the amendments proposed by the hon. Member for Lowestoft concerning training on coercive control and domestic abuse. The amendment also highlights the intersection between misogyny and the abuse of assisted dying, about which the hon. Member for Bradford West has spoken so compellingly at different points. Understanding how the law affects and interacts with women in particular seems to me to be relevant and necessary. If we are to ensure that the law operates in a way that is good for women, we need to collect this data from patients.

[Lewis Atkinson]

I entirely agree with the hon. Member for Richmond Park and I absolutely expect this information to be collected. My observation, as ever, is that I do not think we should put the exact details in primary legislation. The powers are clearly there for the Secretary of State to specify what information should be collected. I am struggling to find it, but I know that my hon. Friend the Member for Spen Valley will move an amendment to require the Secretary of State, when they make provisions and issues guidance under the Bill, to consult the Equality and Human Rights Commission and others in respect of protected characteristics.

--- Later in debate ---

[Kim Leadbeater]

As has been alluded to by various Committee members, I fully support the intention behind amendment 273, but I think it will be covered already. I have mentioned my amendment 500, but amendment 455 is probably more pertinent. It looks at the annual report that the assisted dying commissioner would produce, which makes reference to protected characteristics, and sets out that any other such data can and should be collected under regulations.

I am therefore confident that that report would encompass the points made by amendment 273, and that reference is made to the analysis that is covered by amendment 274. I feel confident that the intention will be met by the introduction of the voluntary assisted dying commissioner, but I wholeheartedly agree that data collection is a fundamentally important part of the process.

[Sarah Olney]

I want to make a couple of further points in response to some of the those raised by Members. First, I have looked at amendment 500, which the hon. Member for Spen Valley directed me to, and I thank the hon. Member for Reigate for showing it to me—her record keeping is much better than mine. I was going to say that amendment 500 does not cover a lot of the areas that I have raised, but the hon. Member for Spen Valley has just referred me to amendment 455.

However, it is important to say that amendment 455 refers only to “protected characteristics” under the Equality Act 2010. I specified particular characteristics in amendment 273 in response to some of the evidence that we received. In particular, I included the person’s age in response to evidence that we received from Together for Short Lives, which represents children’s hospices including Shooting Star in Richmond. It had specific concerns about the issue of assisted death being raised with young people under 18, and that is why I specified that. I also included gender and ethnicity, which I mentioned earlier, and that came through very strongly in a lot of the oral evidence that we received.

To address the point made by the hon. Member for Sunderland Central, I did not hear sexuality being raised as a risk factor at any point. Obviously, members of the LGBTQ+ community experience a great deal of discrimination, but I have not heard it raised as a specific risk factor for assisted dying, which is why it is not on the list. I have included the person’s postcode because I do not know a better way of assessing whether someone is from a low-income background. I particularly draw the attention of hon. Member for Spen Valley to that characteristic, because it is obviously not protected under the Equality Act, so I remain really concerned.

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

For the avoidance of doubt, socioeconomic status would have been a protected characteristic under the Equality Act, were it not for the previous Conservative Government.

[Sarah Olney]

I thank the hon. Lady for that useful intervention. As I say, socioeconomic status is not currently a protected characteristic under the Equality Act.

[Danny Kruger]

I think the hon. Member for Penistone and Stocksbridge meant the previous Conservative and Liberal Democrat Government—just to be strictly accurate.

[Sarah Olney]

I expect the hon. Lady did, but since none of us in the room was a member of that Government—I think—or indeed Members of Parliament at the time, I do not know how hon. Members want me to respond to that. It remains the case, I believe, that socioeconomic status is not currently a protected characteristic under the Equality Act. If anyone wants to reopen that debate, I am sure there would be an appetite for it.

[Kit Malthouse]

Obviously the hon. Lady is a London MP, but I gently point out that particularly in a London context—and in other urban areas—someone’s postcode is actually a very poor indicator of socioeconomic status. I represented central London as a London Assembly member for eight years and, in large parts of central London, there is social housing in the same postcode as extremely expensive houses running into the many millions.

[Sarah Olney]

I know: the Barnes ward in my constituency is one of the most unequal wards in the country, so I fully appreciate the right hon. Gentleman’s point. As I say, that is the socioeconomic indicator that I have for now, thanks to the failings of our predecessors to include it in the Equality Act, but I am open to amendments on Report if anybody has something more compelling. I do think that it really matters that we look at the socioeconomic status of people who are seeking an assisted death, and I welcome feedback—and, as I say, further amendments—on how that particular part of clause 29 could be improved.

Lastly, I included whether someone has a disability, which obviously has come up many times in the written and oral evidence. That is why I specified those characteristics in response to the evidence that we received, and why I am keen to press amendment 273 to a vote.

Amendment 273 agreed to.

[Danny Kruger]

I beg to move amendment 446, in clause 29, page 18, line 9, at end insert—

“(4) The Secretary of State must, by regulation, specify the data sets which must be made available by the Registrar General for England and Wales.

(5) Any regulations made under subsection (4) are subject to the affirmative procedure.”

This amendment requires the Secretary of State to specify in regulations the data sets which are to be made available by the Registrar General for England and Wales.

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

Sarah Olney Excerpts

Committee stage
Tuesday 25th March 2025 Public Bill Committees

[Sean Woodcock]

I accept that it could work, but my view is that it is far less likely to work and that it is more likely to be successful if it is wholly the responsibility of public authorities.

I will vote in favour of amendment (d) to new clause 36. It would remove subsection (6), which says:

“Regulations under this section may make any provision that could be made by an Act of Parliament; but they may not amend this Act.”

It strikes me as dangerous to provide in the Bill for the Secretary of State to amend primary legislation, and we should vote to remove that power. It is surely a weakening of the Bill’s safeguards. Assisted dying must remain firmly in the control of the democratically elected Parliament. I urge Members to join me in voting to remove subsection (6).

If we fail to rule out the possibility of private provision and allow the Secretary of State the power to amend primary legislation, we will fail to implement the necessary safeguards. Amendments (c) and (d) to new clause 36 would go some way to addressing that, by ensuring that the state that sanctions assisted dying is also the body that provides it. Assisted dying services need strong reporting and accountability; otherwise, we risk inequality, or the abuse of assisted dying going unchecked. The provision of assisted dying through public authorities is essential to proper accountability, reporting and best practice, so I urge the Committee to support the amendments.

[Sarah Olney (Richmond Park) (LD)]

It is a pleasure to serve under your chairmanship, Ms McVey.

In Richmond Park, a Henry VIII power has traditionally meant the right of the monarch to hunt the deer in the large open space that gives my constituency its name—something that I am sorry to say he has in common with the dog of the hon. Member for East Wiltshire—

[Danny Kruger]

I didn’t know it was illegal. [Laughter.]

[Sarah Olney]

He paid a hefty fine, I think.

The efforts of Henry VIII’s descendants to try to enclose the park and maintain the powers for the exclusive benefit of the royal family were defeated by a popular and somewhat genteel uprising of the residents of Richmond. I stand here today as the Member for Richmond Park to do a similar job: to assert the rights of the House of Commons and the Houses of Parliament to determine what legislation is, and not to allow it to be delegated under Henry VIII powers.

The normal approach is that legislation made by Ministers is delegated legislation, and such legislation is therefore of subsidiary character to primary legislation. However, there is a type of power, known as a Henry VIII power, that gives Ministers the power to amend even primary legislation. The glossary on Parliament’s website says:

“The expression is a reference to King Henry VIII’s supposed preference for legislating directly by proclamation rather than through Parliament.”

We may in the course of time start to refer to them as President Trump powers—who knows?—but that is the precedent we act on.

The Hansard Society, a non-partisan organisation that is neutral on assisted dying, issued a report that was critical of the power in the Bill. It said this:

“little can be deduced about how it is thought this power will be used in practice, beyond the fact that it may, in particular, be used to enable the provision of assisted deaths through the National Health Service.

But as the DPRRC”—

the Delegated Powers and Regulatory Reform Committee—

“has previously stated, where a power provides that delegated legislation may ‘in particular’ include a specified matter, it implies the legislation may deal with matters beyond that specified matter. The explanatory notes shed little more light, except to clarify that the power could be used to make arrangements for the funding of any provision made by the regulations. Could the regulations thus be used to enable the provision of assistance through the private sector on behalf of the health service in England and in Wales? If the intention is that the regulations will be used only to establish an assisted dying service, either within or separately to the NHS, would they require that the service be free at the point of access to the person requesting assistance?

A key principle that the House of Lords Constitution Committee has applied to delegated powers is that they ‘should not be framed in such a way that gives little indication of how they should be used.’ The DPRRC’s Guidance to Departments states that the Delegated Powers Memorandum should set out how it is proposed that a power should be exercised.

In the current absence of the DPM, MPs may therefore wish to seek clarification from the sponsor of the Bill, Kim Leadbeater, about how she envisages the power being used, and similarly from Ministers how they expect to use this power if it were granted to them.”

The drafter of the Bill, Dame Elizabeth Gardiner, appeared on the Hansard Society podcast and gave some further detail on this power and how it arose:

“In other areas, like, is it going to be delivered through the National Health Service or in some other way, indeed the regulation of any substances that might be involved, in the time available, we didn’t have time to go into all the detail of how those regimes work and to make the provision on the face of the Bill, and so there are regulation making powers there, which enable that provision to be set out in detail, as you say, when the Government has looked at it and decided how it would implement it.”

Given the time available and the constraints of the private Member’s Bill process, the hon. Member for Spen Valley can be forgiven for not including the detail of how assisted dying will be provided on the NHS in the Bill on its introduction, but she and the Government have now had months to think about it. Many people had hoped that clause 32 would be replaced with detailed arrangements for the delivery of the service, to be put on the face of the Bill by way of an amendment, which the Committee could properly scrutinise.

On 5 March, the hon. Member for Spen Valley repeatedly said that it would be made clear by clause 32. When the hon. Member for East Wiltshire called for clarity in the Bill as to how the service would be delivered, the hon. Member for Spen Valley said: “It will be.” The Minister said:

“Officials are working on amendments to later clauses to establish the operating model for her consideration.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 5 March 2025; c. 802.]

This does not appear to have happened, which means Parliament will be limited to a 90-minute debate on this issue when the regulations are eventually made, and such a motion will be unamendable. Surely the issue of how the service is to be delivered is much more important than that and deserves greater scrutiny.

It is disappointing to see new clauses 36 and 37 as the replacement clauses. Ideally, instead of the new clauses we would have had a detailed set of amendments to specify exactly how assisted dying is to be delivered. We do not have that; instead, we have a Henry VIII power that provides even more power than the one in clause 32, because the new one includes a power to modify Acts of Parliament passed subsequent to this legislation.

New clause 36 provides very little guidance on how the Henry VIII power would be exercised. Will assisted dying be provided by the state? If so, would that be on the NHS or through another body? Subsection (1) one does not specify that it must be on the NHS. Subsection (4) gives the power, but not the duty, to change section 1 of the National Health Service Act 2006—a foundational piece of Labour legislation if there ever was one, as the hon. Member for Banbury said—but subsection (5) requires it to be free at the point of use.

The question of whether assisted dying should be provided as part of normal NHS services, or in a parallel service, as requested by both the BMA and the Royal College of General Practitioners, is not answered by new clause 36, although hopefully it can be fleshed out in the debate on the amendments in the name of the hon. Member for East Wiltshire. Alternatively, it would seem that the power can be used to commission private providers to deliver the service on behalf of the state. Instead of deciding between the various models, new clause 36 simply leaves it open. It therefore gives very little indication about how it should be used.

When giving the Gray’s Inn reading at Gresham College last year, Lord Falconer said:

“The wider the power—because there is less material in primary legislation to define how it should be exercised—the greater the reduction in parliamentary scrutiny, but also the harder”—

it would be—

“to identify any legal basis of challenge.”

He went as far as to suggest that such wide Henry VIII powers were “unconstitutional”. Given his great support for the Bill, it would be interesting to hear the response of the hon. Member for Spen Valley and the Minister to Lord Falconer’s remarks.

--- Later in debate ---

[Daniel Francis (Bexleyheath and Crayford) (Lab)]

My hon. Friend the Member for Luton South and South Bedfordshire referred to IVF. My wife and I have been through IVF, and what exists is exactly what the hon. Member for Richmond Park described. There is an annual show at Olympia where it has been commercialised and it is put to people, “Why not go down this route? Why not go down that route?” Does the hon. Member agree that that is really not a route we want to go down?

[Sarah Olney]

I am grateful to the hon. Gentleman for that point, because it provides a comparison. We are talking about there potentially being a market for end-of-life services. I do not think that is the way we should be going.

[Dr Opher]

I thank the hon. Lady for her impassioned speech, but we are rather getting off the point. The division between private and NHS provision is spurious in a process that will be delivered by doctors who are working under a code of practice. They will be rewarded in their pay which, as we have said, will be stipulated by the BMA in contracted arrangements with the Government and will be proportionate. The doctors will do the work and get the money for that. That is no different from IVF or anything else. If we accept that the NHS will be the commissioning body and will ensure standards in that way—sorry, I am going on a bit, Ms McVey; I shall now finish—the division between an NHS provider and a private one is spurious.

[Sarah Olney]

The issue is who is commissioning the service. The issue is not the doctors or how they are recompensed for the work that they do, but who is doing the recompensing and what their incentives are. If the process is part of an NHS-provided service where it is agreed that it is a compassionate end of life choice, and where it is properly regulated within the wider NHS service and connects with other NHS services, that is one thing.

If the person commissioning that doctor has any kind of incentive around making a profit—and any profit-making organisation will be incentivised to increase the amount of profits that it makes—then, however carefully regulated, there will be subtle influence, pressure, coercion or persuasion that assisted dying is an option that patients should choose, or possibly not-so-subtle influence, to take the example from the hon. Member for Bexleyheath and Crayford. Under other circumstances, in an NHS model, that may not have been a solution they would have been persuaded to choose. It is that issue of persuasion and of incentives that really troubles me.

[Kit Malthouse (North West Hampshire) (Con)]

I am not clear: is the hon. Lady suggesting that doctors who operate in the private sector are less ethical than doctors who operate in the public sector?

[Sarah Olney]

I think I said very clearly to the hon. Member for Stroud that it is not about the doctors. It is about the people who are commissioning them. I absolutely do not believe that about doctors operating in the private sector, who in my experience are often the same doctors as the ones in the NHS. It is about who is commissioning them and who is asking them to carry out this work, and whether those commissioners are motivated by a profit incentive as opposed to the incentive in the NHS to provide the best possible care.

[Danny Kruger]

I entirely agree with the hon. Lady. We are all equally ethical and unethical—the point is that we respond to incentives, and incentives have their effect. Does she agree that there is a further concern? If we had a tariff system, which we probably would, that would by definition create a market, if there was the opportunity for private provision, to earn tariffs—to make more money the more assisted deaths one provides. Furthermore, to the point made by the hon. Member for Stroud that this is all perfectly fine and normal, what about the opportunity to top up the public provision—the tariff one gets from the NHS—with one’s own money, therefore definitely creating the opportunity for some sort of upmarket arrangement through the additional fees and services that might be provided? As the hon. Member for Bexleyheath and Crayford said, we could see expos dedicated to providing the most luxury or glamorous forms of assisted death through private providers with NHS funding.

[Sarah Olney]

That is not a prospect I particularly want to reflect on, but it is worth noting that the particular risk in assisted dying services is that, as we heard in oral evidence from the chief medical officer, it is really hard to define, first, whether an illness is going to be terminal and, secondly, that somebody has only six months to live. There is an element of subjective judgment in assessing who is going to be eligible for assisted dying. Aligning subjective judgment to a profit incentive could create a serious ethical minefield.

I want to state absolutely clearly for the record that I am not questioning the ethics of doctors or the ethical standards of doctors or of any of the bodies that represent them in any way at all. My question is merely about introducing a profit incentive to this issue. As I said, this process could be contrasted with something like the provision of abortion services. Abortion services are clearly available only to pregnant women. The fact that the qualification, as it were, for this service is on a rather more subjective basis creates a risk.

Without this amendment, I am concerned that the Bill commodifies the end-of-life process and pushes what should be a sensitive, careful process towards being a transactional one. It also increases the risk that everything becomes focused on facilitating ending the patient’s life rather than supporting the holistic ethos of the NHS in addressing all the patient’s needs. Without the amendment, I worry that the Bill opens a door to the commodification of death, as the hon. Member for East Wiltshire has so graphically anticipated. What should be a careful, compassionate process could slide into something more transactional: a service that is marketed, packaged and sold.

We need look only to the parallel of care homes to see that danger writ large. In England, social care has been quietly overtaken by for-profit providers. Today, 75% of adult care homes, and over 80% of children’s homes, are run for profit—not by design or explicit policy, but by the slow creep of market forces. The Economics Observatory, drawing on studies such as Patwardhan et al. 2022, Barron and West 2017 and Bach-Mortensen et al. 2022, reveals a stark truth: for-profit care, particularly where private equity is involved, consistently delivers worse outcomes.

Similarly, a 2019 BMJ study found that private providers running NHS-funded services had higher rates of complications in procedures such as hip replacements compared with NHS trusts. The focus on cost efficiency can lead to skimping on follow-up care or using less experienced staff. Why does that happen? Profit-seeking behaviour drives cuts to staff, to resources and to time. Now, if we transpose that to assisted dying, let us imagine the pressures on a private provider to trim costs and the pressures on the quality of assessments. How thoroughly are mental health conditions, or the risk that something else might be going on, explored? How great is the depth of attention to medical records? Is what is relevant to the doctor influenced by the ticking clock? Will they tick a box rather than a safeguard?

[Kim Leadbeater (Spen Valley) (Lab)]

The hon. Lady said that she is not questioning the ethical judgment and practice of doctors, but the comments she is making suggest otherwise.

[Sarah Olney]

Again, I am talking about the companies that are running the service. I am not questioning the ethics of the doctors involved. I am merely suggesting that the people who are commissioning the doctors to carry out the service will have their own priorities that are not directly related to the safety or welfare of patients.

--- Later in debate ---

[Sarah Olney]

It clearly remains to be seen, but that may be an outcome as we do not yet know what model we are proposing for the delivery of assisted dying. Perhaps doctors will feel pressured to deliver an outcome because that is how the model has been set up. If we have a model that incentivises profits, particularly if we do not have a similar service within the NHS itself, it is quite possible that that will happen. It will not necessarily affect the care that doctors give to patients at the end of life, but the point is that we do not know.

We cannot fully explore that matter in Committee, because we do not have the full clarity of exactly how the process will be delivered, so we cannot examine the proposed model and identify its potential risks and pitfalls. That continues to be a real concern. Perhaps doctors will feel that pressure; perhaps the service will be precisely designed to encourage them to, for example, diagnose someone with having fewer than six months to live even when it is a slightly more subjective judgment and a different doctor operating in a different system may come to a different view.

[Kit Malthouse]

That is an extraordinary claim to make against doctors.

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

I am just trying to wrap my head around the argument. We already know that integrated care boards and other commissioning bodies have incentives given to them when they commission services, so it would be in their interests to diagnose or produce a demand for a service in a particular area. There is already an analogous situation within the NHS; I do not see how that is any different.

[Sarah Olney]

I thank my hon. Friend for his intervention, but those incentives are not about creating profits that make money for individuals. They are about directing the way that resources are allocated to ensure that a broader range of health outcomes are achieved. When I talk about a profit incentive, it is an entirely different kind of incentive from the one he has just raised.

[Danny Kruger]

This is a very important debate, and my concern is that there is a naive assumption that the innate goodness of doctors will render them impervious to all the incentives in the system. As the hon. Lady suggests, if it were possible, as I think it is under the Bill, for a profit-making organisation—a company—to set itself up to provide an assisted suicide conveyer belt as a pathway through this process, and to earn money publicly or privately according to the volume of the provision it enables, we are setting up incentives that would corrupt the doctors who would be required to sign it off.

I regret that my right hon. Friend the Member for North West Hampshire has such an optimistic view of human nature that he thinks that no doctor would respond to the incentives in the way that is clearly enabled through the Bill. There are other medical professionals—ethical doctors—who do respond to incentives, such as those in the cosmetic surgery industry.

[Danny Kruger]

I would, but actually I am making an intervention. It may appear that I am making a speech, so I will soon sit down, but I would be interested in the hon. Gentleman’s response to the suggestion that even he —the paragon of virtue that he is—might not be entirely resistant to the economic incentives in the system. That is why we have an NHS that explicitly tries to exclude profit making from the provision of healthcare.

[Sarah Olney]

I thank the hon. Member for his intervention, but I do not associate myself with his use of the word “corrupt”; I am absolutely not implying that in any way, and I want to be very clear about that. However, there is a grave risk—even for the most ethical person, if they are offered money to carry out an action that they are inclined to carry out anyway as part of their professional practice—that those incentives drive behaviour that leads to worse outcomes for patients, specifically in relation to assisted dying.

[Dr Opher]

There may be an incentive to review a patient for assisted dying, but there is absolutely no incentive in the Bill to approve assisted dying. The idea that doctors would approve assisted dying for financial reasons is completely spurious.

[Sarah Olney]

As I say, we do not have a model before us that we can fully scrutinise or test for risks, and we will not have the opportunity to propose amendments to address those risks—nor will we at any stage. There is a serious risk about all the different parts of the system, not just the doctors, being incentivised by private profit. My amendment would comprehensively remove that, so it would not be a risk. Given that we cannot fully and properly scrutinise the proposed model, my amendment is the best we can do.

[Dr Opher]

I really want to point out that there is no incentive to agree to assisted dying, only to assess for it. There is no reason for people to be corrupted into agreeing, because it would not mean they would get any more money.

[Sarah Olney]

We do not have the model to scrutinise, and we do not know within that whether the first or second co-ordinating doctor will be paid for their services in carrying out those initial assessments. To say that there is no incentive for making the final decision ignores the fact that people might be incentivised for making those initial decisions, where the professional judgment is required and may differ between doctors. That is why there is a risk.

[Kim Leadbeater]

Clause 40(4) is very clear that medical practitioners can receive only “reasonable remuneration” for the provision of services, so it is clear that they cannot make money from the provision of assisted dying. Is the hon. Lady saying that where there is a private provider or one commissioned by the NHS—the model that I have set out in the Bill—there is a financial incentive for doctors to do more hip or knee operations, or other things? That is a question about the model of public and private healthcare as it stands, not about assisted dying.

[Sarah Olney]

On the hon. Member’s comment about clause 40, “reasonable” is a fairly elastic term. We will find in time that the word “reasonable” will come to have its own accepted definition, but it does not preclude a profit margin.

[Kim Leadbeater]

I would argue that it does.

[Sarah Olney]

But the Bill does not say that. It does not say that the payment to the doctor should not include any consideration of profit. Regarding hip operations, someone would have one only if they needed it. My point is that assisted dying is one of a range of options at the end of life being presented here. The concern is that people motivated by profit would be incentivised to push for assisted dying at the expense of other options for the patient that do not attract the same level of reward. That is the issue. It is not a binary decision in the way that most treatments are.

[Danny Kruger]

In response to the hon. Member for Spen Valley, the scenario that she mentions is exactly the problem in many healthcare systems around the world, particularly in America, where doctors are incentivised to deliver volumes of treatments and procedures that are often not strictly necessary. We do have a problem even in our own system with the over-prescription of certain medical treatments, particularly pharmaceuticals, so incentives do apply. Doctors are subject to them, and we do our best to regulate them out of the system. One of the great advantages of the NHS compared with other healthcare systems is that we manage to prevent the over-provision of services in response to economic incentives. That is a founding principle of the NHS that we are overriding with this process.

[Sarah Olney]

I will conclude my remarks by observing that the only reason that we are looking at contracting out assisted dying services to a private provider is that the country is simply not ready for assisted dying. We know how overstretched and under-resourced our NHS is, and we are looking at cutting corners in the Bill, in our policymaking, in our scrutiny of this legislation, and in how this legislation and the service is delivered.

[Naz Shah (Bradford West) (Lab)]

It is interesting to follow the hon. Member for Richmond Park, because I rise to speak to amendment 537, tabled by my hon. Friend the Member for Shipley. The amendment goes further than the hon. Member for Richmond Park would as far as local authorities are concerned.

The amendment also concerns both the national health service and the provision of healthcare by charities. My hon. Friend the Member for Shipley knows both fields extremely well. She was the director of quality and strategy and chief analyst at the Department of Health, and then had a senior role at the Centre for Ageing Better. Her amendment would mean that assisted dying services could be provided only by charitable organisations and not by the national health service.

I strongly support the general principle that if we do have assisted dying, it should be free at the point of use. If this House decides that people do indeed have the right to an assisted death under the conditions that this Bill sets out, then it should not be something limited to those who can afford private healthcare. There are, however, strong objections among general practitioners to providing assisted dying as part of their services, and I do not think we should plan to have private firms work under contract from the NHS to provide assisted dying either.

The Royal College of General Practitioners said in its written evidence that

“any assisted dying service should be seen as a standalone specialised service that healthcare professionals may opt to provide with additional training and should not be deemed core GP work.”

The royal college’s advice, which is founded on the views of its members, means that we should give very strong consideration to putting assisted dying outside the normal workings of the NHS. If we do that, it seems that there are a few options. One is for the Secretary of State to invite private firms to tender for contracts and administer assisted dying services. As I have said, there are very strong reasons why we should not plan to have private firms work under contract to the NHS to provide assisted dying; for me, that it is one of the worst possible options.

Another option is for the NHS to fund a specialised assisted dying service that would be separate from its other functions. That could potentially be feasible, but it could also represent a significant cost for the NHS, because we still have not had the impact assessment from the Government and we have no idea how significant that cost may be.

There is also the worry that if assisted dying becomes available on the NHS, some people will become too frightened to access palliative care, as was outlined to the Committee by Dr Jamilla Hussain. I will read a brief part of her written evidence to the Committee. After talking to the patients in ethnic minority and other disadvantaged groups, she said:

“Overwhelmingly, racialised communities expressed deep concerns that they would be more likely to be pushed towards AD through systemic biases and societal attitudes about whose lives are valued… While safeguards were acknowledged, many remained sceptical that they would be applied fairly and equitably, fearing that vulnerable individuals, particularly those who lack strong advocates or English proficiency, might be at greater risk of being guided towards AD rather than offered appropriate care options.”

I want to share something with the Committee. We often get taxis to and from work and home; I got into a cab yesterday, and the chap who was driving was called Dave. His 84-year-old aunt died on Friday. When we were discussing this option, he told me really clearly that she has opted for a cremation, which would cost less money, just because she internalised that idea of burden and she did not want a cost for those that she left behind. She had not seen a doctor for 40 years. That brought home the idea of internalised coercion, internalised pressure and mistrust, because he also talked about what happened during covid. We had an interesting conversation. I told him that it was interesting that he had said that, and today I am talking about it. That is the reality: it is about how people perceive healthcare provision, the potential inequalities, and what the barriers are to access—all the preconceived ideas that we have about the provision of healthcare.

That brings me to a potential third way, which is what amendment 537 is about: charities. Charities are one way of addressing the concerns I and the hon. Member for Richmond Park have outlined about the risk with private companies and the risk of loss of confidence and access to the NHS, as well as the concerns outlined by the Royal College of General Practitioners. They could well be mitigated by ensuring that the lead responsibility for administering assisted dying is given to charities rather than the NHS.

--- Later in debate ---

[Lewis Atkinson]

I hope to help the hon. Gentleman with the points I am about to make.

What I would say to begin with is that we have talked throughout this Committee about using an opt-in model. There is this idea that everyone will be doing this, but we have rightly set out requirements for specialised training and so on. There will clearly be individual doctors in the NHS, and so on, who decide that they want to provide these services, and specialisms and appropriate regulation will accordingly be developed as part of that.

The other thing I would highlight is that the current drafting explicitly requires a range of provision. The second doctor must be independent. Indeed, clause 8(6)(d) requires that they must not be

“a partner or colleague in the same practice or clinical team as the coordinating doctor”,

so although some are suggesting, perhaps in a positive sense, that there should be one, entirely separate organisation that does all this, that would not meet those requirements. There are those who are trying to instil a fear of one large organisation being set up to take someone from start to finish, but that is not possible under the Bill as drafted.

[Sarah Olney]

I am reflecting on the earlier intervention on me by the hon. Member for Stroud about how the only payment under assisted dying would be made at the very end, so therefore there would no possibility of a doctor making an assessment at an earlier stage in the process being influenced. Now the hon. Member for Sunderland Central is saying—this is obviously implied by the drafting—that the different bits of the approval process would need to be delivered separately. Whether that involved a payment from the NHS or a private provider, the doctor making those assessments will clearly be paid at different stages in the process.

Does the hon. Gentleman agree that this points to the fundamental problem we have in this Committee, which is that we do not have a proposed model that we can properly scrutinise? All of us are just talking about potential suppositions about how things might work. We are effectively talking about a range of straw men.

[Lewis Atkinson]

No, I do not agree with the hon. Member, and I will tell her why. The reality is that the shape of the health provider landscape is different in different parts of the country. For example, in Wolverhampton, there has been a significant amount of vertical integration, such that in many cases GP services are part of the NHS provider trust. Therefore, those amendments that would prohibit any public body from participating would explicitly prohibit GPs in Wolverhampton from that provision. Elsewhere, some hospices—a small number—are provided directly by the NHS. Given the history of the hospice sector in the UK, there is clearly a strong voluntary and charitable element of that provision, which is entirely right, but that varies in different parts of the country.

To return to the point made by the hon. Member for East Wiltshire, there are some hospices and end-of-life providers who have made it known that, if this law passes, they may wish to explore whether they will provide such services. Equally, others will not. This goes back to the conscience debate that we had last week. There will be no obligation, so a hospice in one part of the country may well say, “Yes, we wish to provide this service as an option to our patients,” whereas a hospice in another part of the country might say, “We do not.” We need to get past this metropolitan mindset, whereby ll the providers are within easy travelling distance from each other.

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[Lewis Atkinson]

The hon. Gentleman is providing a masterclass in scaremongering. I know he needs Labour votes to switch before Third Reading, but this service must be explicitly commissioned by the Secretary of State, and it is inconceivable that they would commission that in the way that the hon. Gentleman describes. The co-ordinating doctor is of course one person, and they would be involved in the first assessment and the provision of assistance. Whether that is a doctor employed by the NHS or somebody else, it can only be one individual, but there are the other safeguards we have talked about, such as the panel, which the hon. Gentleman has spoken against. It is absolutely appropriate that the Secretary of State has the powers and the duty to commission the service, and that they will do so from range of providers, reflecting the differences.

On the other point that some hon. Members have made about regulation, I remind the Committee that any provider will be regulated not only under this Act, but by the Care Quality Commission, in entirely uniform manner. I am therefore confused by the points made by opponents of the Bill. Some have said there should be no provision of this by the NHS or any public body, some say there should be no provision by charities—including, presumably, local hospices, should they make that decision—while others say there should be no provision by local GP practices to provide continuity of care.

Perhaps those different points reflect different ideologies within the Committee that are deeper than this issue, but they perhaps also reflect the fact that opponents of the Bill simply do not want this service to be provided at all.

[Sarah Olney]

Will the hon. Member give way?

[Lewis Atkinson]

No, I am going to finish this point.

The hon. Member for East Wiltshire did a good job of reading a Bevan quotation before—although I do not advise him to seek Labour party selection with such gravitas in his voice. However, I think he is the heir not to Bevan, but to Bernard Braine, the Member for South East Essex, who said in the 1967 debate on the David Steel abortion Bill:

“The idea has been spread around that it will be available on the National Health Service.”

In reference to the waiting lists, Braine went on to ask:

“Are our consultant gynaecologists going to make that list longer by making beds available to those who want abortions?”—[Official Report, 13 July 1967; Vol. 750, c. 1382.]

That is the tradition of objection that the hon. Member for East Wiltshire is in. Just because he does not wish to have the option for himself, he does not believe that there should be free-at-the-point-of-use provision on the NHS for anyone else.

I will take Bevan back to this side of the Committee Room. He said:

“The essence of a satisfactory health service is that the rich and the poor are treated alike, that poverty is not a disability and that wealth is not advantaged”.

At the moment, at the end of life, wealth clearly is advantaged. Those who are wealthy and are able to go to Switzerland do have choice at the end of life. Dignity and independence and autonomy should not be based on ability to pay. That is why we need to pass this Bill; that is why the powers to commission in new clause 36 are entirely appropriate and necessary; that is why I support it.

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

Sarah Olney Excerpts

Committee stage
Tuesday 25th March 2025 Public Bill Committees

On resuming—

[Sarah Olney (Richmond Park) (LD)]

It is a pleasure to serve under your chairmanship, Sir Roger. I rise to speak in support of new clause 33 and new schedule 3.

I am concerned that amendment 455 will be inadequate to maintain trust in the system. Collecting comprehensive data, such as the detailed statistics outlined, in an assisted dying regime serves several critical purposes that revolve around ensuring transparency, accountability, safety, equity and continuous improvement of the system. It is about ensuring from the very start that there is good data and learning from the paucity or the blanks in other regimes and from where they have been criticised.

The Secretary of State would have the power to amend the new schedule, but Parliament’s intent and our expectation that the system will be scrutinised would be crystal clear. We need to collect data for monitoring and oversight and gather detailed information about individuals who request assisted dying, and about the process itself. That would allow regulators to monitor how the system is functioning, which would help to ensure that the law is being applied consistently and fairly, preventing misuse or abuse.

We need to safeguard our vulnerable population. Data on characteristics such as age, ethnicity, disability and mental health conditions and on deprivation indices can reveal whether certain groups are disproportionately seeking or being denied assisted dying. That helps to identify potential coercion, discrimination or gaps in care that might drive requests, ensuring that the system protects vulnerable individuals.

For the purpose of improving healthcare and support services, information about the prior involvement of palliative care or psychiatry teams, and about referrals made after requests, highlights whether patients are receiving adequate support before opting for assisted dying. If data shows low referral rates or unmet needs, it could prompt improvements in healthcare, access or quality, potentially reducing the number of requests driven by untreated suffering.

For the purpose of evaluating the process, tracking timelines—that is to say, from initial discussion to death—and procedural steps such as second opinions and panel decisions ensures that the process is efficient yet thorough. It can reveal bottlenecks, delays or inconsistencies, allowing policymakers to refine the system for both patients and clinicians.

For the purpose of understanding motivations and outcomes, collecting the reasons for requests, refusals and complications such as drug efficacy or adverse reactions provides insight into why people seek assisted dying and how the process unfolds. That can inform public policy, clinician training and patient counselling, ensuring that decisions are well informed and voluntary.

For the purpose of ensuring accountability, data on clinicians, pharmacies and panel decisions creates a transparent record of who is involved and how often. That helps to prevent overreliance on a small group of professionals, ensures that ethical standards are upheld and allows for audits if concerns arise.

For the purpose of public trust and ethical debate, detailed statistics foster transparency, which is essential for maintaining public confidence in a sensitive and controversial practice. They also provide evidence for ongoing ethical and legal debates, enabling society to assess whether assisted dying aligns with its values and goals, and for the purpose of learning and adaptation. By analysing complications, drug effectiveness and reconsideration requests, authorities can refine protocols, such as by adjusting approved substances or dosages, to make the process safer and more humane. Long-term data collection supports evidence-based adjustments to the regime.

Almost all jurisdictions around the world have systems for reporting on people requesting and having assisted deaths. However, there is a high degree of variability in the data reported around the world; very few data items are published consistently in all jurisdictions. We have an opportunity to learn from monitoring and reporting systems elsewhere, and to put the most robust possible system in place.

Research published in BMJ Supportive & Palliative Care in 2022 examined in depth the data reported in jurisdictions around the world. It identified official data reports from 16 jurisdictions in which assisted suicide or euthanasia is legal. It found that although most jurisdictions report the number of patients who die by assisted dying, only three—New Zealand, Canada and the state of Victoria in Australia—document the number of patients who make a request to die by assisted dying. The research is from 2022, so it is possible that there are now a few more jurisdictions.

Unless we know about the applications that are assessed as ineligible, we will not have adequate insight into the functioning of patient safeguards and eligibility criteria. That is a point that Dr Annabel Price made in oral evidence and in an editorial in The BMJ in 2015. We need to understand not just who has an assisted death, but who is ineligible and why, to understand how the safeguards are functioning.

The 2022 paper identified Colorado, Hawaii and Maine as reporting the number of patients who received assisted suicide prescriptions, but not the number of persons who actually die by their ingestion. In these jurisdictions, there is no record of how many of the patients ingested the prescribed drugs. This is stipulated in the 2021 data summary for the Colorado End-of-life Options Act, which states that the Act

“does not authorize or require the Colorado Department of Public Health and Environment to follow up with physicians who prescribe aid-in-dying medication, patients, or their families to obtain information about the use of aid-in-dying medication.”

The official statistics reported therefore

“reflect all deaths identified among individuals by prescribed aid-in-dying medication…irrespective of whether their death was caused by ingestion of medication, the underlying terminal illness or condition, or some other cause.”

These states do not appear to have a mechanism to ascertain the amount of unused assisted suicide drugs circulating within the community. The fate of many therapeutic drugs with the potential for abuse or use for fatal overdose, such as diazepam or morphine, is not monitored, but the doses and combinations of lethal drugs used in assisted suicide and euthanasia may present a heightened risk, so monitoring the fate of those drugs should be considered.

Concern about pressure on vulnerable groups warrants the detailed reporting of patient demographics. It is needed to ensure patient safety because it allows researchers and monitoring organisations to monitor trends to determine whether there is disproportionate participation among vulnerable or minority groups and, if so, why.

Even basic patient characteristics, including gender, age and ethnicity, are not universally reported in other jurisdictions. Although marital status could be an indicator of at-home support, fewer than half of reports include it. The level of education can be an indicator of socioeconomic position, but is not routinely reported by many jurisdictions.

Although we have been told that studies that have analysed routine statistics did not indicate a disproportionate use by lower socioeconomic groups, socioeconomic trends have changed over time and new evidence has emerged. For example, in Oregon, the proportion of assisted dying patients on state health aid has doubled in the past decade; it reached 79% in 2021. That indicates an increase in use over time by those in a lower socioeconomic position.

Similarly, an in-depth review by Ontario’s coroner last year showed that those dying by their assisted death legislation, both track 1 and track 2, were more likely to be those with longer prognoses. Given the impossibility of prognostication and the pressure being brought to bear by some campaign groups for the Bill to be wider, socioeconomic data will be very important to ascertain whether there is equity of access to assisted dying and whether financial pressures, including access to benefits, are involved in areas of higher or lower uptake.

Knowing whether patients have received care from hospice or palliative care services provides an understanding of whether patients have been provided with alternative end of life care options. That information is included in fewer than one half of the reports from jurisdictions around the world, with none providing information on the duration or scope of hospice or palliative care involvement. For example, while official reports indicate that 80% to 90% of Canadian patients who have assisted deaths receive palliative care, other studies have shown that fewer than half of such patients had seen a specialist palliative care team.

It is also essential to have information about the clinicians who participate in assisted dying, because the clinical demand of assisted suicide and euthanasia is highly time-consuming, with evidence from other jurisdictions, such as an Australian study of those participating clinicians, showing that it takes 60-plus hours of work per assisted death. Understanding the number of clinicians participating in assisted dying and their speciality is important in understanding the willingness of clinicians to participate, and how the clinical demand for assisted dying is distributed across specialities and practitioners.

Information on the drugs used in assisted deaths is critical to understanding the safety and efficacy of different drugs and drug combinations. The 2022 paper found that just six jurisdictions report the drugs used to bring about patient death. There is no one drug or drug combination that has been shown to be most effective and safe for ending patients’ lives. If that research existed, we would not see such variation in the drugs used. Data on complications following drug ingestion or administration is needed to understand the safety of different drug combinations, but it is rarely reported.

Even in jurisdictions where information on safety is included, missing data can be high. For example, in Oregon, data on complications is unknown in up to 70% of cases annually. Reporting the drugs used to bring about patient death, as well as information about the assisted dying process, including the time from drug ingestion or administration to patient unconsciousness and death, and the presence of complications, would enable the safety and efficacy of these drugs to be assessed.

As in many jurisdictions around the world, what I am proposing relies on retrospective reporting of data, after the patient has died. I suggest that this is the minimum standard that must be achieved. Ideally, we would also build in processes for prospective scrutiny, before the person has died, as well as formal review processes that scrutinise individual cases in more detail. Analyses from Belgium and the Netherlands, where review processes are established, have shown that 48% of assisted deaths in Belgium, and one in five of such deaths in the Netherlands, are not reported via the official reporting system. In some cases, legal requirements are not followed.

Setting up a post-event review panel, such as happens in the Netherlands and Ontario, would improve understanding and safety. In the Netherlands, every case is reviewed by a panel, and many cases, especially the controversial ones, are published to promote education and debate. Controversial or worrying cases will occur in England and Wales if this Bill passes, and it is essential for ongoing patient safety that these are not swept under the carpet, but that there are transparent processes to understand and learn from them.

We have heard frequently in Committee that there is no evidence of harm from other jurisdictions, but we have also heard it powerfully argued that other jurisdictions do not collect the data we would need to determine that. In Oregon, information on complications following ingestion of lethal substances is missing in around 70% of cases. Robert Clark, the former Attorney-General for Victoria, has written:

“The Victorian oversight and accountability structure can best be described as one of ‘hear no evil, see no evil, speak no evil’. In other words, it appears designed for the regulator to find out nothing, investigate nothing and report nothing that could suggest that assisted dying has been anything other than an unblemished success.”

Let us not repeat those mistakes. We can lead the way in rigorous, comprehensive data collection and transparent monitoring.

Amendments tabled by the hon. Member for Spen Valley change responsibility for oversight from the Secretary of State and chief medical officers to the commissioner. This brings a danger of bias in reporting, as there could be an element of marking one’s own homework. This means that there is even more reason for complete data reporting and transparency. Ensuring that data collected is comprehensive and reporting is transparent may go some way to assuage that concern. Importantly, strengthening data collection reporting and monitoring will not make the process harder or more lengthy for the person requesting an assisted death. It just makes the system safer and stronger.

In this amendment, I am not proposing doing anything new or radical. We are simply taking the strongest aspects of what is done in other jurisdictions and bringing them together to enable the best and most comprehensive reporting in the world. All new laws have risks as well as benefit. We must identify and be open about those risks in order to learn from harms and improve onward safety. New schedule 3 will help us to achieve that.

[Naz Shah]

I rise to speak to amendments 455 and 456, tabled by my hon. Friend the Member for Spen Valley. Under the Bill as drafted, an annual report would be issued by the chief medical officers for England and Wales. If the other amendments pass, that report will be issued by the voluntary assisted dying commissioner.

Amendment 455 will do two things, broadly speaking. Proposed new subsection (2A) states that the commissioner’s report

“must include information about the application of the Act in relation to…persons who have protected characteristics”.

Amendment 456 clarifies that the definition of “protected characteristics” is the same as that used in the Equality Act 2010. Proposed new subsection (2A) also provides that the commissioner must report on any other description of persons specified in regulations made by the Secretary of State.

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[Sarah Sackman]

I suggest that those are ultimately policy choices, first for the promoter, my hon. Friend the Member for Spen Valley, and then—if the regime is voted on and passed—for the commissioner. In reality, a lot of the data that one will collect when one has due regard to the differential impact on these protected groups will in practice have a large degree of overlap with other aspects of socioeconomic disadvantage, as is so often the case in equality impact assessments.

[Sarah Olney]

I had an interesting exchange with the hon. Member for Penistone and Stocksbridge last week about socioeconomic indicators. They are in the Equality Act but have not yet been implemented. I understand that it was in the Labour Government’s manifesto to bring forward the implementation of the socioeconomic factors in the Equality Act. Given that, as I understand it, the implementation of the Bill will probably take us up to the next general election, does the Minister not think that, at some point before it is fully implemented, there will be a way of collecting the relevant socioeconomic statistics?

[Sarah Sackman]

The hon. Member is right. Section 1 of the Equality Act 2010 refers to taking into account the impact of public administration decisions on socioeconomic disadvantage. The previous Labour Government brought that provision in under that landmark Act, but it was never brought into force. She is right that the Government are looking to do that. The question is: what is appropriate for the Bill that we are considering right here, right now? From the Government’s point of view, the voluntary assisted dying commission will be subject to the Equality Act, as it stands, and it is right that there is no need to specify the carrying out of an equality impact assessment in the Bill. That assessment will, at the appropriate time, contain whatever the Equality Act requires of that public decision maker. I do not think that we need to pre-empt, through this vehicle, things that have not yet happened in other areas of legislation.

The other point is that, leaving over for the regulations and guidance that the voluntary assisted dying commission is anticipated to produce, to take into account what needs to be taken into account in order to fully understand the regime and how it is operating, can all be developed by what will ultimately be an expert body in this field, should Parliament decide to vote for it. The question in the context of the amendments is: what do the Committee and Parliament say needs to go in the Bill right now? The Government’s position is that the amendments are neither necessary nor workable in our current legal regime.

Amendment 451 seeks to further specify what is included in the commissioner’s annual report under the promoter’s amendments to clause 34. Under amendment 451, the report must contain information on where there have been complications in the procedure, and we assume that to mean the procedure relating to the self-administration of the approved substance, as I think was clarified earlier by my hon. Friend the Member for Bradford West, who referred to clause 9 in that regard. The commissioner’s report would also be required to include analysis of a specified list of matters, including the diagnosis and prognosis of persons seeking assistance, concerns raised by family members or the multidisciplinary panel, and demographic data, including socioeconomic data and information on protected characteristics.

The Government have worked with the promoter on her amendments 455 and 456. Under amendment 455, the commissioner’s annual report would be required to include information about the application of the Bill to persons with protected characteristics and any other descriptions of persons specified in regulations made by the Secretary of State. That is the point: the regime can evolve as appropriate when we know what it looks like and how it is operating. It can even go further than some of the categories that Members have described. That may include persons from different demographics and socioeconomic backgrounds, as proposed by the amendment. The amendment would also require the commissioner to consult, when preparing an annual report, with the chief medical officers for England and Wales and others who appear to the commissioner to represent the interests of persons who have protected characteristics and who the commissioner deems appropriate.

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[Kim Leadbeater]

This is a standard power for regulations to include the power to make incidental, consequential, transitional or saving provision. This is a minor amendment, and it is a standard but vital measure to ensure the legislation works effectively and cohesively.

[Sarah Olney]

The clause, when amended by amendment 545, which we will vote on shortly, brings into stark relief how much of the Bill is to be left to regulations and how little say MPs will eventually get over it. When it comes to voting on Third Reading, MPs will have little certainty on how the Bill will actually operate—so much is to be taken on trust. If, through the gaps and grey areas, people come to harm, that will be on Parliament for failing to address these issues while we had the chance.

Let us consider all the powers that the Bill creates. Clause 5 creates a power to determine what goes into the first declaration, subject to the requirements of amendment 418. Clauses 5, 8 and 19 create powers to determine the training, qualifications and experience of the medical practitioners, with no minimum floor, and we do not even know who will ultimately decide the training—that, too, is to be left to regulations under amendment 186. Clause 6 creates powers to determine the forms of proof of identity, with no requirement for those to be photographic or to prove residency.

Clauses 7, 13 and 21 create powers to determine the statements, declarations and reports required from the doctors and the applicant. Clause 11 creates powers to make regulations for the replacement of the co-ordinating doctor if they have died, are ill or are otherwise unable or unwilling. Clause 15 creates a new power to determine who can be a proxy. Clause 20 creates a power for the approval of drugs and substances to end people’s lives. Clause 28 creates a power to determine the prescribing, dispensing and transporting of approved lethal substances —the right hon. Member for North West Hampshire has called this purely administrative. Clause 29 creates a power to make regulations relating to the registration, certification and recording of deaths. Clause 30 creates a power to issue codes of practice that practitioners must simply “have regard to”.

Clause 32 will create an extraordinarily broad Henry VIII power, as we are completely in the dark as to how the assistance will actually be provided. Clause 33 creates a power to determine which events should be notified to the commissioner and how to enable the exchange of information. That is all to be decided by the Secretary of State, with the detail removed from the Bill.

All those things are to be subject to the negative procedure, except the training and qualification requirement for the first and second doctor, the codes of conduct, and the power for the Secretary of State to arrange for delivery of assisted dying. When a statutory instrument is made through the negative procedure, there is no need for a vote. The only exception, by convention, is when the Leader of the Opposition asks for one, but they understandably would not do so on a conscience issue. In practice, Parliament will never get a say on these matters. Is the Committee content with that?

Even on affirmative statutory instruments, Parliament’s say is limited to a 90-minute debate on a motion that cannot be amended. Suppose that the Secretary of State published a code of practice on the assessment of capacity that MPs felt did not take sufficient account of mental health conditions. They would be faced with the option to vote for it despite its inadequacy, or to vote against it and risk creating a position where there are no codes of practice at all. That is an impossible position to place parliamentarians in, yet that is what the Bill does. It is a massive blank cheque to the Executive.

I say to Government Members, who I know have great faith in the Health Secretary, that according to the Interpretation Act 1978, “Secretary of State” means any Secretary of State. The powers will not necessarily be exercised by the Health Secretary; they could be exercised by another Secretary of State. Indeed, under the doctrine of ministerial delegation, they could be delegated to another Minister who is not a Secretary of State.

I make these points to illustrate that there is an issue of principle that cannot be waved away on the basis that we think someone sensible will exercise the powers. Parliamentary scrutiny matters, and I very much regret that the Bill avoids it through these wide regulation-making powers.

[Stephen Kinnock]

The Government have worked with my hon. Friend the Member for Spen Valley on amendment 223, which would broaden the regulation-making power using standard legal wording so that any regulations made under the Bill can ensure that it works effectively with other legislation.

Amendment 223 agreed to.

Amendment proposed: 545, in clause 39, page 23, line 6, leave out subsections (3) to (5) and insert—

“(3) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) regulations under section 5(3A), 8(6A),30(3), (Voluntary assisted dying services: England) or (Voluntary assisted dying services: Wales) unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(4) Any other statutory instrument made by the Secretary of State containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.

(5) The Welsh Ministers may not make a statutory instrument containing regulations under section (Voluntary assisted dying services: Wales) unless a draft of the instrument has been laid before, and approved by a resolution of, Senedd Cymru.”—(Kim Leadbeater.)

This amendment brings together the various provisions about the procedure for regulations. It also makes regulations under clauses 5 and 8 about training, qualifications and experience, and regulations under NC36 and NC37, subject to the draft affirmative procedure.

Question put, That the amendment be made.

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[Sarah Olney]

I rise to speak to my amendments 531 and 535 and to amendment 490 in the name of my constituency neighbour, my hon. Friend the Member for Twickenham (Munira Wilson).

I welcome what the hon. Member for Spen Valley has just said about needing more time to get this right. As I said earlier, there is still so much that has been left to secondary legislation. I regard that as unsatisfactory in itself, but the fact that we are going to take time to get it right will surely go some way to mitigating some concerns.

I have heard raised around the estate on a number of occasions today the concern that the four-year gap between passing the legislation and implementing it will take us right up to the next general election. I have to say that I share those reservations, even though I am not a member of the party of government, about how the general election campaign will intersect with the implementation of this legislation. I share people’s fears that this whole process will get enmeshed in party politics, which we have hitherto been able to avoid in the Committee, but nevertheless could create a real danger for successful implementation.

I did think that the auto-commencement of this Bill after two years was a little bit reckless. The extension to four years at least permits some potential improvement in palliative care—to re-ignite the spirit of consensus, as that is something that we all want to see—but an NHS already grappling with long waiting lists and staffing shortages could buckle under the added burden of implementing a complex new framework leading to rushed or inconsistent application. An automatic commencement of the new laws, regardless of the situation in the NHS, could leave patients and healthcare workers unsupported.

It is important is that, before the moment comes—whenever that is—Parliament should be fully informed as to how the service will be provided and the strength of other provisions, so that MPs can be confident that those choosing to end their lives through this service are given a fair choice and are not being pushed down a single pathway. We must also have confidence that the medical professionals and panels involved have received adequate training.

Amendment 531 would ensure that at least we go into this with our eyes open and that shortcomings are flagged if not addressed. It would provide that the critical provisions of the Bill, without which assisted dying cannot lawfully operate, do not come into force until a report is made setting out the readiness of services to be provided under the legislation and that the training has been provided. Similarly, amendment 488, in the name of the hon. Member for York Central, mandates a statement from both Houses that all necessary regulations are in place. This would prevent a premature roll-out without clear rules. These steps would not halt progress; they would ensure we are ready to proceed.

Amendment 490, in the name of my hon. Friend the Member for Twickenham, does two important things. First, it requires that if the Secretary of State wants to commence before the auto-commencement deadline, they must publish a report covering the same matters covered by the report under clause 35. This would not be a new requirement, but would instead bring it forward. Crucially, that report would include details about the provision and availability of palliative care services in England and Wales.

Secondly, amendment 490—this is it goes further than my amendment 531 and amendment 488—requires that regulations bringing the Act into force prior to the auto-commencement deadline use the affirmative procedure: in other words, that there will be a vote in Parliament. It stands to reason that if the Secretary of State wants to go quicker than the four-year deadline, then Parliament ought to be able to consider whether all necessary preparations have been done and to refuse early commencement if that is not the case.

Amendments 488, 490 and 531 would not interfere with the auto-commencement point in four years’ time: when four years is reached the whole scheme will come into force. Those amendments would not prevent that, but they would achieve greater oversight and accountability if the Secretary of State decided to commence early. I hope that even if the hon. Member for Spen Valley is not minded to accept striking out the auto-commencement provisions, she will still accept these amendments.

[Kim Leadbeater]

The hon. Member makes some very fair points, but I think they will be covered by my new clause 40.

[Sarah Olney]

I am grateful for that intervention, but the crucial point is the vote in Parliament, so that MPs get not only an opportunity to consider whether sufficient progress has been made—as per new clause 40—but a vote to confirm that they are content for the legislation to proceed.

[Kit Malthouse]

I am sure the hon. Lady understands that a vote of that nature would not necessarily be binding, or compel the Government to do anything, but there would be other opportunities for the House to consider the legislation in debate and vote on it. She knows that there are a number of ways to do that, including via a Backbench motion or an Opposition day.

[Sarah Olney]

I refer to my earlier comments: there are few enough opportunities for MPs to have any further control over how this legislation is going to be implemented. I do not think that it is asking too much to want a further opportunity to be mandated, and not left—dare I say it—to the vagaries of the Backbench Business Committee. There are Opposition days, but this is cross-party, conscience issue. I can speak only for my own party, but I think there are a number of other issues that the Opposition would want to use those debates to address. Taken together, these amendments would ensure that Parliament is properly informed if the Secretary of State decided to commence the scheme before the four-year auto-commencement deadline.

I want to address how the Bill will be implemented in Wales. On 23 October 2024, in anticipation of the Bill being published, Senedd Cymru debated a motion calling on the Welsh Government to

“a) support the principles of assisted dying; and

b) support Westminster parliament to introduce a compassionate assisted dying law in England and Wales.”

The motion was defeated 19 to 26. Among those who voted against were a number of Welsh Government Ministers, including First Minister Eluned Morgan, and I believe that in three political parties—Labour, Plaid and the Conservatives—there was a majority against. In that context—as Professor Emyr Lewis, who gave evidence to the Committee, has stated—it would be constitutionally wrong to pass the Bill without the consent of the Welsh Senedd. He believes that this is different from other instances where legislation has been passed by Westminster against the will of Wales:

“This is not the equivalent, for instance, of trying to re-base the UK’s internal markets following the chaos of Brexit. When the UK Parliament passed Acts ignoring refusal of consent from Cardiff or Edinburgh, it did so in what were considered to be the interests of the economic coherence of the UK. This Bill, however, is a different sort of creature. It is a Bill which would bring about a profound change in the law relating to life and death, where there are strongly held (and expressed) moral, religious and cultural views against as well as in favour. How can it be constitutionally appropriate for the UK Parliament to pass such a Bill for Wales, when the Senedd has indicated its opposition by democratic vote after a thorough debate?”

[Kim Leadbeater]

I hope the hon. Member can acknowledge that the motion voted on in the Senedd was very different from the legislation before this Parliament. I hope that I can reassure her, as I have previously, that I am in contact with the Senedd and will be meeting Welsh Ministers. New clause 37 will hopefully also provide some reassurance on issues around devolution.

[Sarah Olney]

I again refer to what I said earlier: I fear this is another example where, instead of debating and agreeing these points in Committee or elsewhere in Parliament, we are delegating these matters to be decided elsewhere by some other people, not in the legislation that we are debating and voting on.

I reiterate that the Senedd has already made its view clear. It may not have been a binding vote. It may not have been voting on this specific piece of legislation. However, I think the will of the Senedd is clear: they do not want an assisted dying Bill imposed upon them, and that is what the evidence of Professor Emyr Lewis told us.

[Kim Leadbeater]

I think that is a very inaccurate representation of the vote that took place in the Senedd.

[Sarah Olney]

I am sorry that the hon. Lady feels that.

The complicating factor here is that the criminal law is not devolved to Wales, but health is, as is safeguarding. One possibility is to seek to respect devolution strictly, by either changing the law or giving the power to the Secretary of State to change the law in respect of what is reserved, while giving to the Welsh Ministers the powers in respect of what is devolved. The problem is that the Bill does not quite do that, even with the amendments that have been tabled by the hon. Member for Spen Valley. Those amendments fail to properly identify what is and what is not devolved; instead, they kick the can down the road.

Future litigation might be required to figure out the precise boundaries. For example, regulation of health professionals is a reserved matter, but adult safeguarding is a devolved matter, so is the training of those health professionals on spotting coercive control a reserved or a devolved matter? The Bill does not answer that question. The solution therefore carries a real risk. If Wales decides that it does not want assisted dying and therefore does not provide it on its NHS, and the Welsh Ministers decide not to set up proper training and regulatory programmes in respect of the safeguarding issues raised, the position in Wales will be that it is decriminalised, so the service can be provided by private providers charging a fee and not necessarily properly trained in safeguarding. That is not a sustainable middle ground, so it would naturally pressure Wales to move towards commissioning such services itself.

In other words, the Bill either respects devolution at the risk of creating a legal limbo, or it puts pressure on Wales to catch up with England, neither of which are desirable. Another alternative is to take away any choice that Wales might have on the matter entirely, and have the law apply in Wales in exactly the same way it does in England, including when it comes to the actual delivery of services. That would avoid the legal limbo problem, but at the cost of acting in a way that is constitutionally quite wrong.

That brings us to the solution that Professor Lewis proposed in his blog:

“How then might the Bill be amended to respect the Senedd’s vote on the matter of principle? One straightforward way would be to provide for different commencement provisions in the Bill. As things stand, under clause 42 of the Bill, most of the Bill will not come into force until the Secretary of State has brought it into force, with the approval of the UK Parliament. Why not provide that the Bill will only come into force in Wales when and if the Welsh Ministers bring it into force with the approval of the Senedd?”

That is what I seek to do through my amendment.

I can foresee three objections. First, it might be said that the criminal law is a reserved matter and therefore Parliament ought not to refrain from legislating for Wales or have different commencement arrangements for the criminal law in England compared with Wales, but Parliament is sovereign and can do what it wants. By the same reasoning, Parliament should never grant a temporary power to a devolved legislature to legislate on matters that are normally reserved, yet Parliament does do that.

The second objection might be that England and Wales are a single jurisdiction, and that there should not be a difference in the criminal law between them, but this misunderstands that, as a result of the devolution settlement, there are already differences in the criminal law of England and Wales. For example, in our law there is a defence of reasonable chastisement, which means that parents smacking their children would not be committing a criminal offence. Although the criminal law is not devolved to Wales, child welfare is and, using those powers on child welfare, the Senedd voted to abolish the defence of reasonable chastisement in Wales. That means that there is a difference in the criminal law of England and Wales. A position whereby assisting suicide was partially decriminalised in England but fully criminalised in Wales would not be an oddity. There is no principle of our constitution that says that the criminal law must be the same on both sides of the border.

The key issue is that the decriminalisation of assisted suicide, which the Bill will bring about, is not a stand-alone measure. What we are introducing is not something like the Swiss criminal code, for example, which does not criminalise assisted suicide when the person acted for non-selfish motives. Rather, it is a decriminalisation of assisted suicide that is contingent with complying with a detailed healthcare regulatory scheme, which is an issue that is devolved to Wales.

Finally, it might be objected that this might create difficult cross-border issues. As Professor Lewis put it in his blog,

“that would be true also if, for instance, the Scottish Bill did not become law. Far more difficult cross-border issues were successfully accommodated in the context of legislation, also involving profound ethical considerations, when the National Assembly for Wales (as the Senedd was then called) changed the law on organ donations.”

I accept that such a situation might require constitutional amendments at subsequent stages, but these could easily be made by the Government on Report.

Ultimately, when one looks at it in detail, having a different commencement provision for Wales is the only practical way of respecting the vote of the Senedd while not running the risk of creating a legal limbo. Finally, I draw the Committee’s attention to the supplementary written evidence of Professor Lewis, in which he commends my amendment 535.

Regardless of where we stand on assisted dying, we should respect democracy. The people of Wales, through their elected representatives—acting as they should, as representatives—have voted against assisted dying. We should respect that choice and not impose it on them, in whole or in part, without their consent.

Terminally Ill Adults (End of Life) Bill

Sarah Olney Excerpts

Report stage & 3rd reading
Friday 20th June 2025 Commons Chamber

[Sarah Olney (Richmond Park) (LD)]

Many Members present will look forward to the day when it is possible for people in this country to die in peace, with dignity and at a time of their choosing. The opportunity to bring that about is closer than ever before, but it can happen only if Members vote against the Bill today. The express will of the House, as reflected in the Second Reading vote; the momentum generated by the Bill; and the support of the Prime Minister, as we understand it, to change the law have created a moment when it is possible to grasp the chance to bring in assisted dying legislation, but I warn Members that if this Bill passes, the case for assisted dying will be fatally undermined, and it will put back their cause for a generation.

I have sat through Committee and Report, listened to the oral evidence and participated in the debates. This Bill, if it passes, will be challenged in the courts. It will be subject to endless attempts to amend it in Parliament. It will be difficult to implement effectively, and ultimately it will lose the confidence of the public.

It was immensely challenging to properly debate the Bill in Committee, because we frequently found ourselves needing an understanding of medical practice or points of law that MPs are not typically expert in. We spent many hours, for example, debating whether or not the provisions of the Mental Capacity Act 2005 were sufficient for someone who was making the decision to die. Of course, we consulted experts, and some said the provisions were sufficient, some said they were not. I do not believe that this particular decision is one that politicians are best placed to make.

[Bradley Thomas (Bromsgrove) (Con)]

Will the hon. Lady give way?

--- Later in debate ---

[Sarah Olney]

I am sorry, but I will make progress. We would all have been better served by asking a team of experts to evaluate the evidence, draw on their professional experience and come to a settled consensus among themselves on this point about mental capacity and, likewise, the questions we had about how best to approach anorexia within the context of assisted dying and whether the Bill provides a suitable framework for the provision and control of drugs designed for the ending of a life.

These are not political decisions. They have, however, been decided by politicians, and we have approached them in our usual adversarial way, where the right answer is not the one arrived at after careful thought, consideration and consultation, but the one that can muster the most votes. We have therefore reached a most unsatisfactory conclusion.

This legislation imposes duties and responsibilities on professionals who do not think them compatible with their expert practice. It was amended in Committee to require that a panel approve an application for assisted dying, and that the panel include a psychiatrist. The Royal College of Psychiatrists has stated that it opposes this legislation.

[Mr Adnan Hussain (Blackburn) (Ind)]

Will the hon. Lady give way?

[Sarah Olney]

I will not give way, sorry. Assisted dying under this legislation cannot be implemented without psychiatrists, but they would be acting outside the advice and guidance of their professional body.

[Daisy Cooper (St Albans) (LD)]

Will my hon. Friend give way?

[Sarah Olney]

I am not giving way. Will there be sufficient psychiatrists prepared to implement the provisions of this legislation, against the advice of their professional body, to ensure that enough panels can be convened for the purpose of facilitating assisted dying? It is hard to see how there could be.

[Daisy Cooper]

Will my hon. Friend give way?

[Sarah Olney]

I am not giving way. By contrast, many decisions are expressly reserved for politicians. Should the limited resources of the NHS be used to deliver an assisted dying service, or should it be possible to offer the service as a profit-making enterprise? What information should be collected and reported about assisted dying? Who should oversee and regulate its practitioners? Members of Parliament are to have no say over any of those matters at all. Those are all powers to be reserved to the Secretary of State, to be decided behind closed doors. Once again, this legislation grants these responsibilities to people who do not want them.

Neither the current Health Secretary nor the current Justice Secretary are supporters of this Bill. After today, the House of Commons will be shut out of further decision making on this Bill, even though many of the decisions still to be made are rightfully ours to make. The lack of professional consensus or acceptance of the requirements of this legislation, coupled with a lack of political scrutiny of many of its more important provisions, creates an unstable foundation upon which to build an assisted dying service. For such a service to succeed, it needs professionals willing to deliver it, who can have confidence that they are acting within the law and will be supported by their professional peers and by society at large. I do not see how this legislation can deliver that.

It is instructive to compare this piece of legislation with the Abortion Act 1967. That, too, was a private Member’s Bill, brought to this House by the Liberal MP David Steel, but it was preceded by a medical advisory committee chaired by the president of the Royal College of Obstetricians and Gynaecologists, which approved the Bill. The professionals who would be needed to enact the legislation had indicated their support for the Bill before it reached the Commons. The Bill only delegated one power to the Secretary of State. The legislation was hotly debated then as now, but once it was passed, it came into force within six months.

Remarkably, with the exception of amendments required to bring it into line with successive Human Fertilisation and Embryology Acts and to extend its provisions to Northern Ireland, the provisions that the Abortion Act brought into law have remained almost entirely unchanged in 58 years—until just this week, in fact. The careful consideration of the issues that took place before the legislation came to the Commons, combined with the fact that all its provisions were included within the primary legislation to be debated and voted on in one go, has enabled a settled consensus to develop around abortion provision in this country, in contrast to other jurisdictions. It has enabled vulnerable women to seek the help they need and given healthcare workers the confidence and support they require to meet those needs. That is what we need, if we want to deliver a successful assisted dying service, and this legislation cannot deliver that.

If Members want assisted dying, vote against this Bill and make the most of the moment to press for a better approach that can deliver a sustainable framework, accepted and supported by the medical profession, and in which the public can have confidence. If people’s lives are going to be ended prematurely as a result of this legislation that we pass, we cannot take risks. We cannot afford to pass this Bill.

Terminally Ill Adults (End of Life) Bill

Sarah Olney Excerpts

Report stage
Friday 13th June 2025 Commons Chamber

[Kim Leadbeater]

I have nearly finished.

I have had many such conversations over recent months with those who support the amendment, including with palliative care doctors, nurses, hospice staff, GPs, Hospice UK and Marie Curie. I thank them all for their constructive engagement with the Bill. I cannot imagine that anyone in this place is not truly grateful for the outstanding work done every day by the wonderful people working in palliative and end-of-life care in every one of our constituencies. Many of us, if not most of us, will have personal experience of the kindness and compassion that those people have shown to our own families and friends.

But this is not an either/or conversation. Palliative and end-of-life care and assisted dying can and do work side by side to give terminally ill patients the care and choice that they deserve in their final days. Just as there should not be an either/or for dying people, there should also not be an either/or for us as legislators in having to choose between supporting assisted dying or other end-of-life choices. That is why I am supporting amendment 21: to ensure that in this place we channel our energies into supporting all options available to terminally ill people—something that I have always committed to do.

[Sarah Olney (Richmond Park) (LD)]

It is a privilege to be called at this stage in the debate. My principal reason for voting against the Bill on Second Reading was my concern that vulnerable people would be put at risk. I agreed to serve on the Bill Committee to do what I could to allay my concerns about that issue and address some of the issues raised by others. I do not think that the revised version of the Bill properly or completely reflects the concerns expressed on a multitude of different occasions. Consequently, it does not fully mitigate the risks to vulnerable groups.

We all recognise that decision making of any kind does not take place in a vacuum and that, in all parts of life, we live in a particular context. The Equality Act 2010 recognises that many people face discrimination or unfair treatment as a result of particular characteristics and that reasonable steps should be taken to eliminate that. It was very clear from the oral evidence sessions that particular care has to be taken to assess the context within which people are making the decision to seek an assisted death: if they suffer from a mental illness or eating disorder, if they are from a low-income or ethnic minority background, if they suffer from a disability or if they are in an abusive relationship. Those factors are likely to lead to an increased risk that someone will seek an assisted death that they would not have sought if those factors were not present.

In Committee, I and others made the point that it would have been desirable to have received an equality impact assessment before the detailed work of Committee scrutiny had begun, so that Committee members had a sense of how the proposed legislation would impact groups that we know can suffer disproportionate levels of disadvantage.

[Sir John Hayes (South Holland and The Deepings) (Con)]

Will the hon. Lady give way?

[Sarah Olney]

I will not, if that is okay.

We were told that it was not practical to produce such an assessment until after Committee stage, as it would be necessary to assess the impact of amendments made in Committee.

The equality impact assessment was finally published five weeks ago. I have to say that I was pretty astounded. It does not recognise that certain groups in this country may have their lives prematurely shortened as a result of this legislation; instead, it concerns itself with the barriers that vulnerable people may face when trying to access assisted dying. I find that astonishing. Did the people who drafted the assessment not hear the speech of the hon. Member for Vauxhall and Camberwell Green (Florence Eshalomi) on Second Reading? She spoke with passion about how the underlying inequalities in access to healthcare experienced by those from black and minority ethnic backgrounds would be exacerbated if the Bill passed unamended. Did they not listen to the oral evidence that Dr Jamilla Hussain gave to the Bill Committee? She talked about her experience of working with racialised communities in Bradford and their fears of being pushed disproportionately towards an assisted dying pathway. Did they not listen to the testimony of Dr Miro Griffiths on the experience and concerns of disabled people—testimony that has been echoed by Baroness Tanni Grey-Thompson and the actress Liz Carr?

I find it inexplicable that the framing of the impact on vulnerable people should be the removal of barriers to accessing assisted dying and not, as it should be, the increased risk to their health and wellbeing that the Bill presents. I am concerned that we are thinking about the impact on vulnerable people solely with reference to those who are suffering a terminal illness with less than six months to live. We are not thinking about the impact on wider society of introducing a concept of lives not being worth living and how that might disproportionately affect our more vulnerable communities.

My new clause 19 and consequential new schedule 2 and amendment 88 seek to ensure that a comprehensive range of statistics are collected about those who seek and receive an assisted death, so that proper and complete monitoring of requests can be carried out. It is imperative that we get the most detailed possible picture of who is requesting an assisted death so that any patterns of disproportionality can be properly detected and addressed.

[Jim Shannon]

What assurances does the Bill give to the families of people with a disability, or those with mental health issues and those who are anorexic? I do not see any. Does the hon. Lady see any assurances for those who want to end their lives but suffer from those ailments?

[Sarah Olney]

I welcome that intervention. I spoke extensively about the Bill’s impact on anorexic people, and I am not satisfied that those concerns have been addressed.

I am pleased to support amendment 21 tabled by my good friend, colleague and constituency neighbour, my hon. Friend the Member for Twickenham (Munira Wilson), which has attracted support from across the House. It would require the Secretary of State to report on the impact that the Act has had on the healthcare available to those with palliative and end-of-life care needs. I am really pleased that the hon. Member for Spen Valley (Kim Leadbeater) has agreed to accept the amendment.

I am also pleased to support amendments 103 and 104 in the name of my other constituency neighbour, my hon. Friend the Member for Wimbledon (Mr Kohler). They seek to make all statutory instruments made under the Act subject to the affirmative procedure rather than the negative procedure. As it stands, the Act will come into force in four years’ time with no further scrutiny by MPs, yet a whole host of issues that have been delegated to the Secretary of State or have not even been considered will need to be legislated for after Royal Assent. As the Bill stands, the only way for Parliament to scrutinise those powers will be to call for a 90-minute debate on a motion that cannot be amended and will be voted on only if the Leader of the Opposition calls for a vote. Making statutory instruments subject to the affirmative procedure rather than the negative procedure would mean that the Secretary of State, whoever that is, can exercise the powers delegated to them only with the approval of Parliament. For an issue as sensitive and profound as assisted dying, I believe that to be an appropriate level of scrutiny.

[Paula Barker (Liverpool Wavertree) (Lab)]

Will the hon. Lady give way?

[Sarah Olney]

I am sorry, but I will make some progress.

In a similar vein, I plan to support the amendments in the name of the right hon. Member for Tonbridge (Tom Tugendhat), which seek to remove all Henry VIII powers from the Bill and from the amendments introduced by the hon. Member for Spen Valley. I will support the right hon. Member’s amendments if they are selected for a vote, as I do not believe that the use of Henry VIII powers is appropriate or necessary.

I want to speak against amendment 94 in the name of the hon. Member for Spen Valley. It appears to be innocuous, but in reality it would reverse the effect of an amendment that I had accepted in Committee. The Bill as originally drafted would create an enormous constitutional minefield. It seeks to amend the criminal law of England and Wales, which is a reserved matter for the UK Parliament, and simultaneously to make provision for healthcare, which is a matter devolved to the Senedd in Wales. The Senedd debated a motion calling on the Welsh Government to support the principles of assisted dying, but it was defeated by 19 votes to 26. The motion was non-binding, but the Bill gives the UK Parliament the power to impose on the Senedd in Wales a measure that it has expressly said it does not want. The Bill as amended in Committee would give the Senedd the power to decide for itself when it is ready to bring the Bill into force.

Amendment 94 would reverse that provision and deprive the Senedd of the right to exercise its legitimate powers. It is not just that the amendment would restore the constitutional loophole that the Committee had closed; it threatens to create real problems and risks for Welsh citizens if the Senedd is forced to implement the Bill before its devolved healthcare system is ready. I urge fellow Members to have regard to the Committee’s decision and vote against amendment 94.

--- Later in debate ---

[Dr Sandher]

My hon. Friend makes a powerful point, and other hon. Members have also spoken powerfully about the impact that the Bill could have on ethnic minorities. Does any hon. Member know how many ethnic minorities access assisted dying in other nations? I will give way on this point; the hon. Member for Richmond Park (Sarah Olney) raised it earlier.

[Sarah Olney]

The hon. Member calls me to speak. If we do not know, it is probably because those other nations are not collecting the data. My position is that we should be collecting the data, which is why hon. Members should vote for my new clause 19.

[Dr Sandher]

We do know. Ethnic minorities are less likely to access assisted dying in jurisdictions where it is in place. In Oregon, 10% of those accessing assisted dying are ethnic minorities, but they make up 40% of the population. In California, ethnic minorities make up 15% of people accessing the option, but 30% of the population. However, that is not the point. The point of the Bill is to give people the choice to end their life regardless of the colour of their skin. There is no special quality about the colour of my skin that affects my access or the need for a special representative in this case, which is covered by the ECHR and by the Secretary of State.