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

Debate between Sarah Olney and Danny Kruger

Committee stage
Tuesday 25th March 2025 Public Bill Committees

[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 ---

[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?

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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

Debate between Sarah Olney and Danny Kruger

Committee stage
Tuesday 18th March 2025 Public Bill Committees

[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.

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

Debate between Sarah Olney and Danny Kruger

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.

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

Debate between Sarah Olney and Danny Kruger

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.

--- Later in debate ---

[Sarah Olney]

Will the hon. Gentleman give way?

[Danny Kruger]

Will the hon. Gentleman give way?

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

Debate between Sarah Olney and Danny Kruger

Committee stage
Wednesday 26th February 2025 Public Bill Committees

[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 (Eighth sitting)

Debate between Sarah Olney and Danny Kruger

Committee stage
Tuesday 11th February 2025 Public Bill Committees

[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.

--- Later in debate ---

[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.