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.