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.