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?