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

Sarah Olney Excerpts

Committee stage
Tuesday 18th March 2025 Public Bill Committees

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

It is a pleasure to serve under your chairship, Sir Roger. I will speak to amendments 429 and 430 in my name. During oral evidence, we discussed the issues in subsections (9) and (10) of clause 18 and whether there is a contradiction. Subsection (9) states that the co-ordinating doctor

“must remain with the person”

and subsection (10) says:

“For the purposes of subsection (9), the coordinating doctor need not be in the same room as the person”.

We also discussed how that works in other jurisdictions. My amendment 429 would deal with that conflict. If the Bill were to become law, that conflict could be queried.

We also need to consider the possibility of complications. Clearly, if there are complications and the doctor is not in the same room, they would not necessarily be aware of those complications. I accept that, in some normal circumstances, doctors and medical professionals are not present in the room at the time of death; at other times, they are present. The amendment would mean that if something were to go wrong and someone was having a painful reaction to the drugs, the doctor would be there to see and help.

I do not understand what the Bill means when it says the doctor does not have to be in the same room. How far away would the doctor have to be? One subsection says the doctor has to remain with the person, and the following subsection says they do not have to be in the same room. If the Bill were to pass, we would be asking doctors to do something that is unprecedented. If the person were to suffer complications such as seizures or vomiting, or if they were exhibiting signs of distress, it appears that the doctor should be present. Members may think this could encroach on a patient’s privacy, but I think there is a discrepancy between the two subsections.

On amendment 430, I am conscious that my hon. Friend the Member for Ipswich has tabled a similar amendment. The intention of my amendment is to ensure there are regulations in responding to any unexpected complications that arise in relation to the administration of the approved substance, including when the procedure fails. I am conscious that if a doctor intervenes, they could end up in breach of the Suicide Act 1961. I therefore left the wording in that vein, as I understand that we will receive more information in due course.

Again, we received oral evidence from a number of people that what a doctor is meant to do in the event of unexpected complications is a matter of concern from both a legal and a medical perspective. We know from the evidence received from other jurisdictions that—I accept in a small minority of cases—there can be complications or the death can take much longer than expected. We also received evidence that, on rare occasions, death can take days.

Amendment 430 would show we have thought about those circumstances and provided for them by giving doctors a code of practice to refer to, rather than being left in the dark if a difficult situation arises at the time of death. We must not find ourselves in a circumstance in which doctors and patients are unprepared. It is important for us to think through, provide for and safeguard against all possible scenarios, however rare they might be. Of course, we would not want them to happen, but in some circumstances they might, and we would not want there to be a legal hole. Accepting the amendment would mean the Secretary of State has the opportunity to provide a code of practice for such circumstances. I hope hon. Members will be able to support the amendments in my name.

[Sarah Olney (Richmond Park) (LD)]

It is a pleasure to serve under your chairmanship, Sir Roger. I support amendment 429, tabled by the hon. Member for Bexleyheath and Crayford.

I do not understand how subsection (9) can require the doctor to remain with the person until they have self-administered and died, or until they have decided not to self-administer, while subsection (10) states that the doctor need not be in the same room. The Bill becomes even less coherent when we consider subsection (11), which requires the doctor to remove the substance immediately if the person decides not to self-administer—how can the doctor do so if they are not in the same room? Amendment 429 would make the scheme more coherent and I support it for that reason.

I accept that there are downsides to having the doctor present, especially before the administration, as people have a normal desire for privacy, but that needs to be balanced against the risk of someone else taking the substance or something going wrong in the process of self-administration. In Australia, there is no requirement for the doctor to be present, which has led to some cases of abuse. I understand why the Bill’s promoter has chosen not to go down the Australian route, but the position arrived at in subsection (10) lacks coherence and is unclear.

What does it mean to remain with the person without being in the same room? Does it mean being in the corridor just outside the room, but with the door open? What if it is closed? What if, as a result of the door being closed, the doctor is no longer within earshot? I am not the only one who is confused, as so are the doctors who will have to apply the legislation. For example, Dr Janet Menage, a retired GP, told us in written evidence—TIAB 182—that the provisions

“are mutually exclusive: doctor ‘must remain with the patient’ but ‘not in the same room’…This makes no sense. In any case, if the attending doctor is not in the same room there could potentially be an intervention by another person to the patient’s detriment. Or the patient may wish to cancel the suicide at the last moment and be unsupported in voicing that decision.”

With or without subsection (10), I would like to know whether the Minister has made an assessment of the workforce impact of such a requirement for the doctor to be present. As Dr Rebecca Jones told us:

“As the death may take many hours, I’m uncertain of the practicalities of this”.

[Sean Woodcock]

The hon. Lady is making an important point about the lack of coherence that amendment 429 is trying to sort out. Throughout these weeks of debate in Committee, we have heard about the importance of clarity for practitioners. This provision introduces severe doubt as to exactly what a practitioner is meant to do. I understand that we do not want to say, “You have to do this and this, and in this order”, and that amendments have been rejected on that basis, but this clause opens a massive loophole in the law and practice, which concerns me. Does the hon. Lady share my concern?

[Sarah Olney]

The hon. Gentleman is absolutely right. It is fundamental that, with this legislation, we provide very clear guidance to the medical practitioners who will be engaged in assisting patients with this matter. This is not only for their peace of mind that what they are doing is acceptable under the law, and accords with what Parliament has decided, but for the protection of patients. It is incumbent on us to be really clear about what we mean, and I do not believe we are as the Bill is currently drafted.

[Sojan Joseph]

We repeatedly talk about doctors, but nurses, healthcare assistants and other professionals will definitely be involved in a hospital environment. The Bill does not talk about other professionals. Furthermore, within a hospital environment, NHS wards may be bays without individual bedrooms. Does the hon. Lady think we need to be clearer on the procedures that will happen in those areas?

[Sarah Olney]

I am grateful for the hon. Gentleman’s professional experience, which is extremely helpful. He is absolutely right. Following the point made by the hon. Member for Banbury, we cannot define the circumstances in which a patient will find themselves when this is taking place. That is why it is incumbent on us to make sure we provide very clear guidance on precisely what Parliament intends.

As Dr Rebecca Jones told us in written evidence:

“As the death may take many hours, I’m uncertain of the practicalities of”

doctors remaining with the patient

“for many doctors…have competing demands on their time.”

In written evidence, Dr Chris Ainsworth asked how this will work in cases where death takes several days, as has happened in Oregon, while Dr Trevor Stammers wrote:

“If the doctor is required to be present until the patient’s death, this may require hours of practitioners’ time to fulfil and is unlikely to be adhered to in many cases if the dying process is protracted.”

Dr Rachel Fisher said in her written evidence that for Australian doctors, who are not required to be present at the final act, each assisted death requires around 60 hours of professional time. For British doctors, we will need to add the time it takes for the self-administration to result in death. Dr Fisher also raised the real impact on doctors, writing,

“imagine the practicalities of those who must deliver it. The GP, motivated by a deep desire to preserve life and relieve suffering arrives at the home of the patient with a cocktail of powerful drugs. What if the patient has symptoms? Who will collect their child from nursery or school if the patient takes a long time to die? How will they know when to decide the death was unsuccessful? Will there be counselling for GPs observing and feeling complicit in a potentially drawn out and symptomatic death?”

Finally, Dr Paul Shaw asked in his written evidence:

“How will this service be funded? What support will be required from the NHS when things go wrong or death takes longer than expected? Will this be a 0900-1700hrs service? What will be the out of hours arrangements?”

A lot of the written evidence touches on the practicalities of a doctor being required to remain with the patient until they die. Amendment 429, in the name of the hon. Member for Bexleyheath and Crayford, seeks to clarify whether “being with the patient” requires the doctor to be physically present in the room.

[Dr Opher]

I understand that hon. Members are coming from a good place, but I do not understand how amendment 429 would stop the doctor having to stay with the patient until they die. I agree that it is an important issue, so could the hon. Lady elucidate on that?

[Sarah Olney]

The hon. Gentleman gives me an opportunity to conclude my remarks. I support amendment 429 because it is important to provide clarity that when we say “with the patient,” we mean in the room. However, I invite the Minister to expand further on the resource requirement of assisted dying. I want the doctor to remain with the patient, which I think is critical. That is why I support amendment 429, but the implication of the Bill is a considerable resource requirement, particularly for GPs, and I would like the Minister to respond to that.

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

I rise to speak to amendments 532 and 533, standing in my name, and in support of amendments 429 and 430, tabled by my hon. Friend the Member for Bexleyheath and Crayford. I appreciate that my amendments are similar to amendment 430. They go a little bit further, but probably not as far as we have previously discussed in the Committee.

I totally understand the concerns about the Bill being overly prescriptive about the regulations that could be passed down to the doctors making such decisions. However, it is important that we enable the Secretary of State to provide guidance, in addition to GMC regulations, on what the co-ordinating doctor must do if the procedure has failed. At the moment, the Bill simply states:

“The coordinating doctor must remain with the person until”

that time. However, I appreciate that amendment 429, if passed, would cover that issue.

Clause 9 states:

“The assessing doctor must…discuss with the person their wishes in the event of complications arising in connection with the self-administration of an approved substance under section 18”.

However, the Bill as drafted is not clear about what a doctor is legally permitted to do in the event of such complications. That is particularly important, as the Bill expressly states that the final act of administration must be taken by the person themselves. Therefore, the Bill as it stands stipulates that the doctor must discuss the patient’s wishes in the event of complications without stipulating what actions the doctor can take in such an event and thus what the patient’s options actually are.

There is a gap in the Bill and a lack of clarity on that critical issue, which has been raised frequently in both written and, to an extent, oral evidence. Dr Alexandra Mullock argued that, as

“the Bill would only permit”

a doctor only to assist in the patient’s self-administering a substance,

“administering drugs to end the life of a patient who might be unconscious (but not dying) is not permitted.”

She also raised the possibility that a patient might regain consciousness, but

“be too ill to make a second attempt”

at self-administration. What should a doctor do if that occurs? Unless the Secretary of State clarifies what a doctor can do in that situation—my amendment would not do that; it would merely give the Secretary of State direction to do so—the co-ordinating director could be placed in a difficult position.

Professor Alex Ruck Keene argued that the Bill as it stands could lead to the potential for medical professionals to be “required to stand by”, yet without being able to take steps to respond to complications so as to ensure that the process is completed. I fully appreciate that all doctors would use their good training, common sense and years of extensive practice to make a best-case judgment, and we would always support them in that, but the Bill has the unintended consequence of not giving doctors true cover in that area.

Dr Mullock also asked what should occur if the patient survives a procedure, “but is badly affected”. What treatment should be provided? Should the patient be moved to hospital? Should the patient be sedated or made comfortable until a natural death occurs, or should the doctor be able to take steps for the patient to die following the initial failed attempt? We need answers to those questions. Amendment 532 does not seek to answer them, but it would stipulate that the Secretary of State must do so at a certain point.

--- Later in debate ---

[Lewis Atkinson]

To me, amendment 430, tabled by my hon. Friend the Member for Bexleyheath and Crayford, strikes the right balance. Under clause 30 the Secretary of State “may” make provision for codes of practice on these matters if that is required; I am uncomfortable with saying that the Secretary of State “must” do so, when it is likely that it will be more appropriate for the GMC or some other body to make those regulations. We get into a difficult precedent if the Secretary of State must specify the reaction in certain medical circumstances but we routinely leave that to medical regulation and practice more widely. I think a “may” power, as set out in amendment 430, would allow that backstop provision, but would not get into the issue of “must”. It is also likely to be more respectful of the conversations as outlined in clause 9.

[Sarah Olney]

I am listening to what the hon. Gentleman is saying, and a lot of what he is talking about in terms of giving doctors discretion makes a lot of sense in a routine medical intervention, but this is not a routine medical intervention. This is a very serious point, and the doctor’s judgment in this case could well fall either side of what is permissible by the law. That is why it is so important that it is really clear. Whether we decide in Committee that it must be on the face of the Bill, or whether we want, as per the hon. Member for Ipswich’s amendment 532, to leave it to the Secretary of State, it must be clear and specific.

[Lewis Atkinson]

I think the Bill is very clear on the legal parameters. A doctor may not act, in terms of administering the substance, in a way to hasten death. Within that, we are back into the realms of normal medical practice, as my hon. Friend the Member for Stroud set out. I am sure that there will be legal guidance, whether that be from the GMC or elsewhere, if and when the Bill were to pass. The Secretary of State would have the powers anyway under clause 30, but for the avoidance of doubt, amendment 430 strikes the right balance in giving backstop permissions to the Secretary of State to clarify anything if needed.

--- Later in debate ---

[Lewis Atkinson]

I disagree. As clause 9 makes clear, the doctor will have had a conversation with the patient about their wishes in advance, in exactly the same way as a surgeon would have a conversation with a patient in advance of high-risk surgery—

[Sarah Olney]

rose—

[Lewis Atkinson]

I am not going to take any further interventions; I am going to answer this point and make some progress.

The surgeon would say, “If this procedure fails, would you wish me to attempt resuscitation? Would you wish to be put on a support system?” The hon. Gentleman misunderstands current practice on consultation with patients, in advance of procedures, about their wishes, which is where there is significant established evidence.

--- Later in debate ---

[Sarah Olney]

I hope the Minister can answer a question for me. I hear what he is saying about concerns with the amendments themselves, which makes a lot of sense, and the policy objectives of the hon. Member for Spen Valley. What I am concerned about is that in the Bill as drafted, notwithstanding that various amendments have been tabled, it is not clear what the doctor should do in the event of complications. There may well have been an earlier conversation with the patient, but the patient’s request may still leave the doctor in the position of committing a criminal offence.

I would like to know whose responsibility it is to ensure that doctors are not left in that position, which could come about either because the Bill as drafted is not clear or the amendments do not make the appropriate clarification. The hon. Member for Spen Valley has done a marvellous job, but in terms of policy intention the Bill does not cover this aspect. The Minister is saying that it is his job only to ensure that the amendments are appropriate. I am still very concerned that there is a big gap here and that we are potentially leaving doctors in the very difficult position of not knowing whether or not carrying out the patient’s intentions would leave them in the position of breaking the law. I would like to know whose responsibility it is to ensure that doctors are not left in that situation.

[Stephen Kinnock]

The hon. Lady will know that we rely on medical practitioners to make professional judgments all the time. My hon. Friend the Member for Stroud has set out the range of things that medical practitioners can do when they are dealing with end-of-life care. That happens all the time.

In these circumstances, it is the view of the Government that we should continue to rely on the skill, judgment and expertise of medical practitioners, underpinned by the various codes of practice—the GMC, or good medical practice, being probably the most obvious one. There is an understandable desire to use primary legislation to address issues of this kind, but it is important to point out that that could prove to be counterproductive and that we could end up with a Bill that becomes less workable and therefore potentially less safe—what one might call the law of unintended consequences.

[Sarah Olney]

The Minister is talking about somebody making a medical judgment, which would obviously be the right thing to do in the normal course of events, but we are talking about a doctor being left in a position of not knowing whether to take a further step that would end somebody’s life or to take the step that would be natural for a doctor—to try to revive the patient. This is about what the legal position is in that case—it is not a matter for medical judgment.

[Stephen Kinnock]

My response would be to refer the hon. Lady to clause 30(1), which sets out that the Secretary of State will produce a code of practice. Amendment 430, which my hon. Friend the Member for Spen Valley has said she is minded to support, would also ensure that the code of practice includes guidance on the matter that the hon. Lady raises. I think there is a commitment to a code of practice, and if amendment 430 passes then it would be explicitly in the Bill that that code of practice should include the issue that she raises.

Amendment 533 places a duty on the Secretary of State to make regulations specifying where the provision of assistance under the Bill may take place. It sets out a requirement on the Secretary of State to consult such persons as the Secretary of State considers appropriate prior to making such regulations, including certain specified groups.

Amendment 430 would broaden the Secretary of State’s power to issue codes of practice under clause 30. It would explicitly enable the Secretary of State to issue a code of practice in connection with responding to unexpected complications that arise in relation to the administration of the approved substance under section 18, including when the procedure fails.

I understand that amendment 255 is no longer relevant as it relates to schedule 6, which is going to be changed—I think that is right—so, in that sense, the amendment is null and void. I hope that those observations were helpful.

--- Later in debate ---

[The Chair]

I was under the impression that cold concentrated the mind, but we will see what we can do. I speak as one who will not be in the room. The point has been taken.

Clause 19

Authorising another doctor to provide assistance

[Sarah Olney]

I beg to move amendment 408, in clause 19, page 13, line 18, after “provided” insert “has been consulted and”.

The amendment ensures the person has been consulted before they have given consent for another medical practitioner to be authorised to provide assistance.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 210, in clause 19, page 13, line 22, at end insert—

“(2A) Regulations under subsection (2)(b) may in particular provide that the required training, qualifications or experience is to be determined by a person specified in the regulations.”.

This amendment enables regulations under subsection (2)(b) to provide that the required training, qualifications or experience is to be determined by a person specified in the regulations.

Amendment 499, in clause 19, page 13, line 25, at end insert—

“(3A) Where a registered medical practitioner who is authorised under subsection (1) is not satisfied of all of the matters mentioned in section 18(4), they must notify the coordinating doctor immediately.”

This amendment provides that where a practitioner authorised under clause 19(1) is not satisfied of all of the matters mentioned in clause 18(4), they must immediately notify the coordinating doctor.

Amendment 22, in clause 19, page 13, line 32, at end insert—

“(5A) Regulations under subsection (2)(b) must specify that training in respect of domestic abuse, including coercive control and financial abuse is mandatory.”

This amendment would require that, in the event of the coordinating doctor authorising another registered medical practitioner to provide assistance under the Act, that other registered medical practitioner must also have undertaken training on domestic abuse, including coercive control and financial abuse.

Clause stand part.

[Sarah Olney]

Amendment 408 seeks clarity on a critical aspect of the legislation. Clause 19 allows a co-ordinating doctor to authorise another registered medical practitioner to carry out their functions, providing that the patient consents and that the replacement has completed training, qualifications and experience as specified by the Secretary of State. This is a facilitation clause to smooth the process, and in some cases it might seem like something that we should just nod through. If the co-ordinating doctor becomes unwell, takes leave or faces an emergency that prevents them from fulfilling their duties, they might delegate to ensure continuity of care for the patient. If the patient relocates, perhaps to be closer to family, or if the co-ordinating doctor cannot travel to the patient’s location due to the distance or logistics, a local practitioner could be authorised to step in, provided they meet the specified requirements and the patient consents.

--- Later in debate ---

[The Chair]

It was something else you were pre-empting yourself with—that is fine. I call Sarah Olney.

[Sarah Olney]

I have nothing to add.

Amendment 408 agreed to.

Amendments made: 210, in clause 19, page 13, line 22, at end insert—

“(2A) Regulations under subsection (2)(b) may in particular provide that the required training, qualifications or experience is to be determined by a person specified in the regulations.”

This amendment enables regulations under subsection (2)(b) to provide that the required training, qualifications or experience is to be determined by a person specified in the regulations.

Amendment 499, in clause 19, page 13, line 25, at end insert—

“(3A) Where a registered medical practitioner who is authorised under subsection (1) is not satisfied of all of the matters mentioned in section 18(4), they must notify the coordinating doctor immediately.”

This amendment provides that where a practitioner authorised under clause 19(1) is not satisfied of all of the matters mentioned in clause 18(4), they must immediately notify the coordinating doctor.

Amendment 211, in clause 19, page 13, line 31, leave out subsection (5).—(Kim Leadbeater.)

See the statement for Amendment 187.

Amendment made: 22, in clause 19, page 13, line 32, at end insert—

“(5A) Regulations under subsection (2)(b) must specify that training in respect of domestic abuse, including coercive control and financial abuse is mandatory.”—(Naz Shah.)

This amendment would require that, in the event of the coordinating doctor authorising another registered medical practitioner to provide assistance under the Act, that other registered medical practitioner must also have undertaken training on domestic abuse, including coercive control and financial abuse.

Amendment made: 212, in clause 19, page 13, line 33, leave out subsection (6).—(Kim Leadbeater.)

See the statement for Amendment 188.

Clause 19, as amended, ordered to stand part of the Bill.

Clause 20

Meaning of “approved substance”

[Danny Kruger]

I beg to move amendment 409, in clause 20, page 13, line 35, leave out from “specify” to “for” and insert—

“two or more drugs or other substances with different techniques of administration”.

The amendment requires that the Secretary of State specifies two or more drugs or other substances, which have different techniques of administration.