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

Sarah Sackman Excerpts

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

Q I have a question for Alex Ruck Keene. I noticed the concerns in your evidence about presumption of capacity, and I know that you have written in the past about concerns over different disciplines having different definitions of capacity. Later on in your evidence, you also mention multidisciplinary consideration of circumstances in assessing eligibility. How might that multidisciplinary eligibility assessment alleviate some of your concerns in relation to capacity decisions?

Alex Ruck Keene: We have capacity, but we also have to make sure that it is settled, informed and voluntary, and that we do not have things like pressure or influence going on. It is important to make it clear that we are not just saying that this is about all the weight going on capacity. For instance, if you have social workers involved—if you have, say, palliative care social workers involved, assuming it is a palliative care situation—they are going to be far better informed about what options might be out there than a doctor, potentially, depending on the doctor. Social workers more generally might well have more expertise in picking up signs of coercion or influence than a doctor, but I do not necessarily want to get into, “Some disciplines are good at X” and “Some disciplines are good at Y”—I have come across brilliant examples and bad examples in both zones.

It is partly about multidisciplinariness and also about the fact that you have more than one person trying to talk it through. When I train, I always try to tell people that 85% of capacity assessments are not all that difficult —they are just made difficult because you do not have time or you are not listening—but 15% are more difficult. I think a lot of these will be in the 15% zone, and in that zone, the more people you can have thinking about it, so long as they have an agreed framework within which to think, the more reliable, transparent and accountable the outcome is going to be.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

Q I want to pick up on your evidence, Sir Nicholas, in relation to the panel that we have just been discussing with Sir Max. I have three questions. First, what do you envisage the panel doing under your model? Will it be ensuring that a lawful process has been followed or doing something more than that?

Sir Nicholas Mostyn: The former.

[Sarah Sackman]

Q That is helpful. Secondly, what information do you think the panel will need in order to reach a determination on that question?

Sir Nicholas Mostyn: It will have the statements in schedules 1 to 4, signed by both doctors twice. This is where it gets slightly tricky. Is the panel expected to be a ferret and say, “This does not quite chime for me”? The Committee will have to consider how investigative the panel will be, or whether it will purely sit back, be passive and work on the material it has. Of course, under clause 12, it has to hear orally. That might get the alarm bells going, but I believe that the panel should be entitled to call for further evidence if it has concerns. As I say, I have been trying to find out why 10% of cases were rejected by the panel in Spain. There must have been some kind of procurement of further evidence by the panel in order to do that.

[Sarah Sackman]

Q I suppose my third question, then, is how do you envisage such a panel, if at all, interacting with the High Court—with, say, a final right of appeal to the High Court, similar to what is in the Bill?

Sir Nicholas Mostyn: Article 10 of the Spanish law gives an appeal on a point of law to their high court, so I would have the same, with an appeal on a point of law to the High Court, but only on a point of law.

Alex Ruck Keene: Either way—it would have to be either way. It could not just be against a decision not to approve, logically, because the current model is very odd in saying that you can only appeal one way to the High Court.

Sir Nicholas Mostyn: Yes. Spain gives either side the right to appeal, so I agree with that, but it is confined to a point of law.

Sir Max Hill: I would only add that I wonder whether that is the only route through, namely leaving open a judicial review appellate process, or whether, for example, as we imagine with a number of commissioner-led processes already in this jurisdiction, the panel—or frankly, I suspect, panels, which might sit regionally, chaired perhaps by the retired judiciary—would have an appellate route to a national body, which you could call a national commission, instead of a judicial-review route to the Court.

There are a large number of commissioners, some sitting under the Home Office and some sitting under the Ministry of Justice—in a sense, I was a commissioner when I was the independent reviewer of terrorism legislation—with closely defined powers. There are many others who sit in an enhanced regulatory position—highly qualified individuals. You could describe them as national commissioners, if that is an appropriate term, and they would have superintendence over regional panels, and the power to appoint retired judiciary, perhaps with the assistance of the Official Solicitor, to sit on those regional panels, and then to have an internal appellate mechanism.

Sir Nicholas Mostyn: You have to have an appeals process of some type, because otherwise there will be judicial review. If there is no appeal, there is judicial review—so you have to have an appeal of some type or there will be judicial review.

Sir Max Hill: Yes, I agree.

[Sarah Sackman]

Thank you.

[The Chair]

We have some Members who want to ask more questions; we have about six minutes or so. Jake Richards, you did have a possible question earlier on.

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

Sarah Sackman Excerpts

Committee stage
Thursday 30th January 2025 Public Bill Committees

[Sarah Green]

Q To follow up on what you just said about legislative consent, in October of last year, the Senedd voted against Julie Morgan’s assisted dying motion. In your opinion, what implications does that have for the Bill and its progress?

Professor Lewis: A motion was put forward by Julie Morgan that was supported by three or four Members of the Senedd, which was broadly in support not of this specific Bill, but of the purpose of this Bill, and it was defeated, as you say, after a full debate on the Floor of the Senedd. Formally, legally and constitutionally, that is of no consequence, because it was not a legislative consent motion, and of course, as I said earlier, this Parliament is able to do what it likes. It could totally disregard that. Whether that would be a prudent or an appropriate thing to do, or even what one might describe as a constitutionally appropriate thing to do, is another matter.

I think it reinforces the point that there is a significance in making sure that scrutiny of the Bill has a Welsh focus. You might consider, for example, making different provision in Wales. How do you respect what was a democratic vote in the Senedd in Cardiff? Well, you might consider having different commencement provisions—I am not advocating this, it is just an example of what you might do. Commencement of the Bill in Wales might happen in a different way, on the assumption it was passed. You might put that in the hands of Welsh Ministers and the Senedd, just as an example.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

Q To be clear, I am here as a Government Minister on this Committee, and the Government are entirely neutral on the Bill, so we do not take a position on the substance of the issues you have raised. Clearly, the draft Bill is intended to apply in both England and Wales, as you say, and your note is extremely helpful in highlighting some of those issues that will need to be worked out. As a Government, we will work closely with the Welsh Government to assess the legalities and practicalities of any potential changes to the law.

You have highlighted in particular the distinctions between health law, which is a devolved matter, and the law on suicide, which currently is not devolved. On the first page of your written evidence, you draw out clauses 32, 31, 33 and 34 in particular as issues that we should focus on in ironing out those legalities. Is there anything else you want to add to that that you think that we as a Government should focus on in our work consulting with the Senedd?

Professor Lewis: I think it is important that both Governments understand how the implementation of what will be a pretty radical change in the law will happen on the ground within the health service and among those who are responsible for delivering social services. I am thinking of issues such as adult safeguarding, which in Wales has its own specific law and is slightly different from the arrangements in England. There are those kinds of nuances between the two territories, and I think it would be prudent to focus on them.

I also think it is wise to bear in mind that Wales has certain statutory bodies whose interests might extend to the Bill. For example, there is the Older People’s Commissioner for Wales, in particular; there is the Future Generations Commissioner for Wales as well. I think it is important that there is some forum, some scope, for those people also to be involved in how this is shaped.

[Sarah Olney]

Q Dr Price, I am really glad that we are able to have the Royal College of Psychiatrists in front of us today; thank you for making the time. I want to ask you about paragraph 11 of your written evidence, which states that it is the royal college’s view that the Mental Capacity Act

“is not sufficient for the purposes of this Bill.”

Could you expand a little on that and, if you feel able, make some recommendations as to what you think could be sufficient?

Dr Price: Thank you. In answering this, I will also refer back to Professor Gareth Owen’s oral submission, thinking about the purpose that the Mental Capacity Act was drawn up for and the fact that decisions about the ending of life were not one of the originally designed functions of it. We would need to think carefully about how that would then translate into a decision that was specifically about the capacity to end one’s life.

We also need to think about how that would work in practice. When we are thinking about capacity assessments, it is usually related to a treatment or a choice about a treatment or about somebody’s life—for example, changing residence. Psychiatrists and doctors and actually lots of professionals are very used to those sorts of decisions and have gathered a lot of knowledge, expertise and experience around it. This particular decision is something that in this country we do not have knowledge, expertise and experience in, and we therefore need to think about how that would look in practice.

As for advice to the Committee about what that might look like, I think that we need to gather what evidence we have—it is actually very thin—from other jurisdictions that think about capacity as part of this process. I am thinking about my PhD: I visited Oregon and talked to practitioners who were directly involved in these sorts of assessments. They described the process, but they are not using the Mental Capacity Act as their framework. They described a very interpersonal process, which relied on a relationship with the patient, and the better a patient was known, the more a gut feeling-type assessment was used. We need to think here about whether that would be a sufficient conversation to have.

One of the things that I have thought quite a lot about is how we can really understand the workings of a mental capacity assessment, and one of the best ways we can do that is to see who is not permitted to access assisted suicide because of a lack of capacity and what that assessment showed. We do not have data because the assessments for people who were not permitted to do it are not published; we cannot read them, so if this becomes legislation, one of the suggestions that I would have—it is supported by the Royal College of Psychiatrists—is to, with patients’ consent, record capacity assessments to see whether they meet the standard that is necessary. I think it is important to set out the standard necessary and the components needed to be confident about a mental capacity assessment. That will help with standards, but will also help with training, because this is new territory for psychiatry, for medicine, and to be able to think about consistency and reliability, training needs to actually see a transparency in capacity assessments.

--- Later in debate ---

[Daniel Francis]

On a point of order, Mrs Harris. Yesterday, we heard evidence about the impact of the Bill on different groups with protected characteristics, including age, disability, race and sexual orientation. We heard from the EHRC, an arm’s length body of the Government, that it strongly recommends that a full impact assessment, a human rights assessment and a delegated powers memorandum be undertaken before the Committee begins line-by-line scrutiny.

We have also heard from witnesses about the impact that the Bill will have on disabled people, from Disability Rights UK and others, on black and minority ethnic people, from Dr Jamilla Hussain, from LGBT people, from Baroness Falkner, and on those from a low-income background, from Sam Royston of Marie Curie. We heard from Dr Sarah Cox and Dr Jamilla Hussain that evidence from their work shows that this Bill has a higher probability of pushing minority groups further away from seeking healthcare, while inequality pre-exists. As observed through the pandemic and from available data, minority groups do not always trust that their interests will be best represented in institutions that would enable the facilitation of someone’s death, should this Bill become law.

I therefore believe that on the basis of that advice, so as not to inadvertently widen health inequalities through Bill, it is essential to have health impact assessments. I appreciate that an equality impact assessment will be produced for Report stage, it will not be available for detailed line-by-line scrutiny. When we agreed the timetable for line-by-line scrutiny last Tuesday, we were not aware that this assessment would be produced, given it was first reported to the House during the money resolution last Wednesday. There is a risk that there will be a bigger impact on people with protected characteristics, and this will not be understood fully until the Government have produced the equality impact assessment. As things stand, that means that we will move into line-by-line scrutiny of the Bill on 11 February without a full understanding from the assessment of the impact of the Bill.

I am therefore minded to request a short Adjournment of the Committee so that, as advised, we can receive the assessments before we progress to line-by-line scrutiny. Please will you advise me, Mrs Harris, how I could secure such a motion to adjourn the Committee until we are in receipt of the evidence, as advised by the witnesses yesterday?

[Sarah Sackman]

Further to that point of order, Mrs Harris. I want to clarify the Government’s position. As the Committee knows, the Government are neutral on the Bill, but once the Committee has concluded its work and prior to Report, we are committed to publishing the ECHR memorandum, a delegated powers memorandum, the economic impact assessment that was committed to during the money resolution debate, and an assessment of the equalities impact of the Bill. In terms of the timing, it is necessary that the impacts that are assessed be of the Bill as it is brought forward. If the Bill is liable to change via amendments proposed by members of this Committee, it is important that we know what it is that we are assessing the impact of. That is why the proposed timing is to publish the impact assessment at that stage. The point is that before Members of the House come to a vote on Report and Third Reading, they will all have before them the impact assessment in respect of equalities and all those other aspects of the Bill.

[Danny Kruger]

On a point of order, Mrs Harris.

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

Sarah Sackman Excerpts

Committee stage
Wednesday 12th February 2025 Public Bill Committees

[Rebecca Paul]

I absolutely agree that such clarity would be very useful. The hon. Member and I both want to ensure that undue influence is captured somewhere; I am less picky about where. As long as it gets covered somewhere in the Bill, that would be an improvement to the Bill, and I hope that everyone would really welcome that. I think everyone recognises the issue. I am not hearing that people are opposed to this; they recognise that there can be more subtle forms of coercion. If we can work together to find the best place for that to go in the Bill, I am very open to that.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

It might help if I offer—with the usual caveat that of course the Government are neutral—the Government’s position with respect to what the hon. Lady has been discussing. It is important to point out that the terms “coercion” and “coercive behaviour” and “pressure” that are used on the face of the Bill appear in existing legislation without statutory definition. In other words, they are given their ordinary meaning and they operate effectively in that manner in the criminal law. The hon. Lady is absolutely right that clause 26, which we shall come to in due course, is a separate matter, but of course it will be important to review the Bill as a whole and to understand the interaction between the different provisions in clause 1, as we trace it through to the criminal offences.

It is the Government’s view that manipulative behaviour or undue influence—the terms that the hon. Lady is using—would come within the normal meaning as understood in case law by the judiciary of the terms “pressure” and “coercion”. In terms of the integrity of the statute book, there is a concern that by adding additional terms, we run the risk of creating confusion, because when it comes to the interpretation of those provisions, judges will be looking to understand and ascertain what Parliament meant by “undue influence” that was not currently covered by coercion. Given that those terms are commonly broadly interpreted, it is the Government’s view that the sorts of behaviours that the hon. Lady is describing—“undue influence”—would be covered by the terms used on the face of the Bill. For simplicity, given that our existing body of law interprets those provisions widely, and to ensure consistent application of the law in this context and other contexts where coercion arises, it is important from the Government’s point of view to retain the Bill’s current wording.

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

Sarah Sackman Excerpts

Committee stage
Wednesday 12th March 2025 Public Bill Committees

[Naz Shah]

If I may, Ms McVey, I will speak to the issue of the judicial oversight of the panel and the whole of new clause 21. I would like to understand something, and perhaps the Minister or my hon. Friend the Member for Spen Valley could help me. We have been talking a lot about judicial oversight. My concern is that even if we had judicial oversight, there is no liability if something goes wrong. We would have had judicial oversight, but now we have panel oversight—non-judicial oversight—of the decision. Even then, what if somebody went down the assisted dying route and an issue was raised afterwards? What recourse would anybody—family members and so on—have to hold anybody liable if they did something wrong, including, potentially, the commissioner?

[The Minister of State, Ministry of Justice (Sarah Sackman)]

It is a pleasure to serve under your chairship, Ms McVey.

As my hon. Friend the Minister for Care and I have made clear throughout debate, the Government continue to remain neutral on the Bill and do not have a position on assisted dying. Once again, my remarks will focus on the legal and practical impacts of the amendments, with a view to assisting Committee members. I will first speak to amendments 371 to 373, 377, 378, 381, 388, 390 and 391, new clauses 14, 15, 17 and 21, and new schedules 1 and 2, all tabled by my hon. Friend the Member for Spen Valley.

In executing our duties to ensure that the legislation, if passed, is legally robust and workable, the Government have worked with my hon. Friend the Member for Spen Valley in relation to the amendments, which propose the voluntary assisted dying commission and the panels. They reflect my hon. Friend’s intent to replace the court approval process that is currently set out in the Bill. I confirm that this change was driven not by capacity concerns from within Government, but by the Bill promoter’s policy intent. Let me be clear: the High Court stage could be made to work, but if the Committee and Parliament elect for the commissioner and panel model, the state will work to deliver that.

New clause 14 and consequential amendment 391 would provide for the establishment of a voluntary assisted dying commissioner. In keeping with other appointments of this significance, the commissioner would be appointed by the Prime Minister, and the individual in post must hold or have held office—so it is not sitting judges, but could be a retired judge—as a judge of the Supreme Court, the Court of Appeal or the High Court.

New clause 14 sets out the central functions of the commissioner, which will be detailed further in new clauses 15 and 17 and new schedule 1. The commissioner would receive documents, including the reports from the co-ordinating doctor and declarations under the legislation, make appointments to the list of persons eligible to sit on assisted dying review panels, and refer cases to those panels, which would replace the role of the High Court in the original draft of the Bill. In addition, the commissioner would have the responsibility for monitoring the Bill’s operation and reporting annually to Parliament, which we will no doubt come to in clause 34. It is important to pause there, because that is one aspect in which the commissioner model is distinct from that of a court or tribunal. It will serve multiple functions, not least the monitoring of the Bill’s operation and reporting on that annually to Parliament.

New schedule 1 contains practical arrangements for the office of the voluntary assisted dying commissioner, as established in new clause 14. In practice, we anticipate that the commissioner’s office will be a non-departmental public body. The establishment of such an office to support the Government-appointed chair or commissioner is common practice for roles of this nature. One such model is the Investigatory Powers Commissioner, which is chaired by a person who is holding or who has held high judicial office. The schedule also introduces the role of a deputy commissioner, who, like the commissioner, must have been appointed by the Prime Minister and hold or have held office as a judge of the Supreme Court, the Court of Appeal or the High Court.

Both the commissioner and deputy commissioner would be appointed for terms of five years, with their remuneration set by the Secretary of State. The commissioner would have the ability to appoint their own staff, having obtained approval from the Secretary of State in regard to the number of staff, the remuneration and the terms, as well as providing an annual statement of accounts. In the ordinary way, such a public body would be subject to other statutory provisions, not least the Equality Act 2010.

New clause 15 would establish the mechanism for the referral by the voluntary assisted dying commissioner to an assisted dying review panel. When the commissioner receives a first declaration from the person seeking assistance, and reports from the co-ordinating and independent doctors as to their assessments of the person—including a statement by those doctors as to the person’s eligibility for assistance—they would be required to refer the case to a panel as soon as reasonably practical. In practice, the task of organising the work of each panel would fall to the commissioner’s office. The co-ordinating doctor would be required to inform the commissioner where a first or second declaration is cancelled. Where the commissioner is informed of the cancellation of the first declaration, they must not refer the case to a panel, or must inform the panel to disregard the application if already referred.

Amendments 371, 372, 373, 377, 378, 381, 388 and 390 are all consequential amendments on new clause 21, and together establish the mechanism for the consideration of cases by the assisted dying review panels in place of the High Court. Panels would be required to review each case and issue a certificate of eligibility where they are satisfied that all requirements set out in the Bill have been met.

[Sarah Olney]

I seek clarification. As drafted, in clause 12(1)(c), the High Court would give

“a declaration that the requirements of this Act have been met”,

but in new clause 21(6)(a), the panel is required to issue a certificate of eligibility, to which the Minister just referred. I seek the Minister’s guidance on whether it is the Government’s view that the High Court declaration has equal weight in law to the certificate of eligibility set out in new clause 21. I ask particularly because that certificate will be relied on for the purposes of suspending the Suicide Act 1961, under which a criminal offence would otherwise have been committed. The certificate of eligibility will need to be relied on to demonstrate that no criminal offence has been committed under that law. Is it the view of the Minister and the Government that a High Court direction, as originally required, can now be fully replaced by, and have equal weight with, a certificate of eligibility?

[Sarah Sackman]

As I understand it, everything has to be internally coherent in whatever the final draft of the Bill is. Within this structure, because in this case it is a panel that issues the certificate, it is its own sui generis certificate appropriate to this process. The declaration that was referred to in the earlier draft is one that the High Court would normally do. Given that this is on the face of the Bill, and will be in primary legislation, it would have legal force and would, if it were internally coherent with the rest of the legislation, have the legal effect of operating coherently with the criminal offences and, indeed, with the suspension of the Suicide Act, as the hon. Lady just asked. That is my understanding.

[Sarah Olney]

My original question was more about whether it has the same legal force as a High Court direction.

--- Later in debate ---

[Sarah Sackman]

My understanding is that it would, yes. If I am wrong about that, I will obviously come back to the Committee and correct it, but my understanding is that it would. They are two different things—one is called a certificate of eligibility and one is a High Court declaration—but in terms of how they operate within this legal scheme, my understanding is that they would have the same legal effect, and they are intended to.

Under new clause 21, the panel must hear from, and may question, the person seeking assistance and the co-ordinating doctor, or the independent doctor, or both. The panel may also hear, and may question, the person’s proxy if that is relevant, and any other person, including those appearing to have relevant knowledge or experience. This could include family members, or other individuals with an interest in the welfare of the person, as well as other experts. The new clause is explicit that the panel must not grant the certificate of eligibility if it is not satisfied that all the requirements have been met. Further consequential amendments introduce references to the certificate of eligibility throughout the Bill. Once the panel has made a decision, it will be required to notify the person seeking assistance, the co-ordinating doctor, the commissioner and any other person specified in the regulations.

As others have pointed out, the amendments tabled by my hon. Friend the Member for Spen Valley do not spell out every step of the process or the procedure that the panels would be expected to follow. That is left to secondary legislation, and it will be for the commission and the commissioner to produce their own guidance on how the panels and the panel procedure are intended to be governed and regulated. That is in line with the approach to legislation more broadly, with main objectives typically set out in primary legislation, and secondary policy issues and technical and administrative matters, dealt with through secondary legislation, regulations and guidance.

--- Later in debate ---

[Naz Shah]

We have heard before that the panel’s decision must be unanimous. However, I have tried looking in the Bill and it does not state that specifically. My understanding is that two people could nod their head, the other one would not have to, and it would still pass.

[Sarah Sackman]

I believe it is in there. Let me find the relevant provision so that I can refer my hon. Friend to it.

[Naz Shah]

It is a majority vote, not unanimous.

[Sarah Sackman]

It is a majority vote for the other decisions that a panel may make, but in respect of certification, the decision is unanimous. Paragraph 5(2) of new schedule 2 states:

“Decisions of a panel may be taken by a majority vote”.

Such decisions include whether to hear from an additional expert, or whether further investigation is required in respect of an aspect that the panel may be concerned about, such as coercion or capacity. While those decisions can be taken by a majority vote, in respect of certification and granting a certificate of eligibility, I refer my hon. Friend to paragraph 5(3), which states:

“The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.”

That is a slightly mealy-mouthed way of saying that if any member of the panel resists the grant of the certificate, no certificate can be issued.

[Danny Kruger]

I just want to support the hon. Member for Bradford West. She is absolutely right. It is clearly intended that there should be a unanimous decision but, in fact, as the hon. Lady pointed out, if one of the members decides effectively to abstain, the procedure does go ahead. It is not that they all have to actively support the decision; only two of them have to do that. One of them could have their doubts and sit on their hands, and it would still go ahead.

[Sarah Sackman]

That might be something that other hon. Members wish to take away with them, whatever the policy intent may have been. In fairness, I do not think that the question of whether there is a requirement to give a positive indication of a decision either way is on the face of the Bill. However, I think that clearly the intention behind paragraph 5(3) of new schedule 2 is that there is unanimity in relation to the grant of an eligibility certificate.

[Daniel Francis]

I was once on a planning committee in which one member of the committee voted in favour and all the other members abstained, so the recommendation went through one to zero. Technically, given the way in which new schedule 2 reads to me, that could happen, because one member could vote in favour and two could abstain, and that would therefore be considered unanimous. Will the Minister comment on that?

[Sarah Sackman]

We are discussing how to construe the provision in paragraph 5 of new schedule 2. I should reiterate that, obviously, it is the promoter’s intent to have—hon. Members may call it what they will—the safeguard of unanimity behind that provision. If there is any feeling that the drafting does not fully reflect that intent, it can be tightened up. However, under of the Bill, there is clearly an intent to have unanimity in respect of the final decision about certification.

[Kim Leadbeater]

It absolutely is the policy intent that there should be a unanimous decision of the panel. If there is any lack of clarity, I am very happy to look into working with official draftspeople to tighten that up.

[Sarah Sackman]

I thank hon. Members for their interventions.

In respect of the standard that would be applied in order for the panel to be satisfied, in practice, as I was saying, the panel would establish a case on the balance of probability in those circumstances only on the basis of strong evidence. In other words, the more serious the issue to be determined, the closer the scrutiny and the stronger the evidence required.

Introducing a requirement for the panel to be satisfied beyond all reasonable doubt at this stage would create a difference to, or a divergence from, the standard applied by professionals earlier in the process, such as by the doctors in the first and second assessments, and—I think the hon. Member for Reigate acknowledged this in her speech—to ascertain whether, among other things, the person has capacity to make the decision to end their own life, whether they have a clear, settled and informed wish to do so, and that they have not been pressured or coerced. Such a requirement would create the problem of making the application of the Bill incoherent because, of course, if a civil standard has been applied earlier in the process, the higher, criminal bar could never be satisfied at the panel stage. The principal decision is what standard should be applied and, as I have said, the civil standard is used in other end-of-life decisions, but there is also a question of the internal coherence of the Bill.

[Rebecca Paul]

I thank the Minister for the very clear way in which she is explaining everything. I completely acknowledge what she has just said. As she rightly said, I alluded to the fact that I tried to make the change at an earlier stage, but was unsuccessful, and I am now trying to put it through here. Can the Minister comment on the meaning of “satisfied”? If we are not going to have “beyond reasonable doubt”, can she expand a little on the meaning of “satisfied” and whether she is comfortable that that is clear enough for these purposes?

[Sarah Sackman]

The answer is yes. I, on behalf of the Government, am satisfied that that would be commonly and well understood by those applying it, and any court construing it, that the standard to be applied is the civil standard. That would be understood by not just the commissioner in terms of laying down the rules for the panels, but the panels themselves. It is important to recall that as Lord Bingham, one of the most distinguished judges that this country has ever produced, once said,

“The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved”,

and there is no doubt, based on what Parliament has debated, about the utmost seriousness of these issues. To answer the hon. Member’s question, the answer is yes, I think it is clear. That is the Government’s position.

Amendment (b) to new clause 21 would give the panel discretion to refuse to grant a certificate of eligibility where the requirements stated in the Bill are met if it believes there are

“particular circumstances which make it inappropriate for the person”

to be provided with assistance. The Government’s view is that this could risk unpredictability and inconsistency in the panel’s decision making and reduce legal certainty for the person seeking assistance, as well as for the panel.

Amendment (c) to new clause 21 concerns three specific requirements under subsection (2):

“(c) that the person has capacity…(h) that the person has a clear, settled and informed wish to end their own life”

and

“(i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person”.

The amendment would mean that despite finding that those criteria had been met on the balance of probabilities, the panel could stay proceedings when it believed there was a real risk that they have not been satisfied. As with amendment (b) to new clause 21, this could result in uncertainty for the applicant and in terms of what is required of the panel in its decision making.

As I referred to earlier, in a lot of these decisions, the question of whether somebody has capacity or is being coerced is ultimately a binary decision for each panel member. The person has capacity or they do not. In applying the civil standard with the rigour that Lord Bingham spoke about in the most serious cases in circumstances when the panel or its members identify that there is a real risk, one would expect them to exercise their discretionary powers to seek more evidence to remove that risk and doubt, and if that persists, to refuse and make the binary choice that the person does not have capacity or is being coerced, or vice versa.

Amendment (d) to new clause 21 would require the panel to hear from and question both assessing doctors, as opposed to the requirement that the person must hear from, and may question, one of the doctors, and may hear from and question both. The amendment would also require the panel to hear from and question the person seeking assistance and the person’s proxy when clause 15 applies. Under new clause 21, the panel must hear from and may question the person seeking assistance and would have the ability to hear from and question their proxy.

The amendment would also make it explicit that the panel must consider hearing from and questioning parties interested in the welfare of the person and those involved in the person’s care. Under new clause 21, the panel would have the ability to hear from any other person, which could include family members, caregivers and whomever else it deems appropriate.

--- Later in debate ---

[Sarah Sackman]

My hon. Friend is absolutely right. Under the Bill as drafted, a panel and the commission are not invested with powers of summons, and the evidence that is heard and requested is not conveyed under oath. It is not a court or a tribunal. Those provisions do not apply, so she is absolutely right. They can make the request, but they cannot compel someone to attend.

Amendment (e) to new clause 21 would make it explicit that, when considered appropriate for medical reasons, the panel would be able to use pre-recorded audio or video material when considering evidence for the purposes of determining a person’s eligibility for assistance. Panel procedure would be set out in guidance issued by the commissioner, which would detail the processes governing the panel process in general, but also for the use of that form of evidence.

New schedule 2, which was tabled by my hon. Friend the. Member for Spen Valley, builds on the new clause 21. The new schedule further details the composition and the intended proceedings of the assisted dying review panels. As we have heard, panels would be formed of three members, including a legal member sitting as chair, a psychiatrist and a social worker.

Thanks to the hon. Member for Richmond Park, we have dealt with the provision on decisions to grant the certificate of eligibility and how they will be determined by members of the panel. We heard from the promoter herself, my hon. Friend the Member for Spen Valley, that the intention is that such decisions are unanimous.

The commissioner would be responsible for making appointments to a list of persons eligible to sit as members of the multidisciplinary panels, and for establishing those panels. Under the schedule, the legal member as chair of the panel must hold or have held high judicial office, be one of His Majesty’s counsel—that is a KC—or have been authorised as a temporary judge in the High Court. The psychiatrist member must be a registered medical practitioner and a practising registered psychiatrist, and the social worker member must appear on the register maintained by Social Work England or Social Work Wales.

[Naz Shah]

The Minister is being generous with her time. I just want to confirm that the Bill does not require the social worker to be a palliative care specialist. Am I right in thinking that?

[Sarah Sackman]

I think the hon. Lady is right that that is not specified as a requirement. All three panel members would be drawn from the relevant professions and would therefore be subject to the standards pertaining to those professions. In the legal profession, they will be practitioners who are experienced in analysis and reaching decisions based on facts and law. The professional standards for all three regulated professions place a high value not just on integrity, but on impartiality. For the commissioner and for any judges on the panel, the “Guide to Judicial Conduct” makes the principles explicit.

[Naz Shah]

The Minister mentions impartiality. As things stand, the doctors who take part in the process will have made the choice to do so. Would the same yardstick be applied to the panel, or would its members just be appointed? Could they choose not to participate in the process?

[Sarah Sackman]

I anticipate that members of the professions will apply to be members of the panel. There will have to be a recruitment process, which is something that the commissioner, who is appointed by the Prime Minister, will undertake. I emphasise the point that all the professions, in their different ways—I am obviously most familiar with the legal profession, particularly the Bar—are governed by professional standards that specify the need for and place a high value on not just integrity, but impartiality.

[Naz Shah]

I struggle to agree that there would be impartiality, because there are people who are committed, believe in, agree with or are advocates for assisted dying. Does that not raise a concern about potential bias—subconscious bias, even?

[Sarah Sackman]

There is no doubt that, as we will see later, the panel would be subject in all its decisions to public law principles, including procedural propriety. The absence of any suggestion of bias—even of the appearance of bias—is an important public law principle. In any event, given the recruitment process, the interviews that would be undertaken and the professional standards to which all these people would be held, I think that they would apply their independent and impartial skills and judgment to the decision making and the assessment of eligibility in a manner appropriate to the task set out in the Bill.

One would expect professionals on the panel to adhere to their professional standards and act with impartiality in ascertaining whether the eligibility criteria have been met. Speaking as the Minister—indeed, even speaking for myself—I have no reason to doubt the independence, impartiality and professionalism of the panel or see any suggestion of bias.

[Danny Kruger]

I appreciate that an impact assessment is due to come later, after we have debated whether we should have this system or not. Nevertheless, will the Minister tell the Committee whether officials in her Department or in the Department of Health and Social Care have informed the hon. Member for Spen Valley whether the workforce will have sufficient capacity to provide the professionals required? Has any estimate been made of the number of people who will be required to step forward to take part in these panels?

I note the point that the reason why the proposed High Court stage was dropped was not that Ministry of Justice officials had informed the hon. Member for Spen Valley that the family court system would be overwhelmed. Can the Minister confirm that there was no communication to the hon. Member that the courts would not be able to cope with the demand? That was clearly reported in the media at the time, but can she confirm that it was not the case?

[Sarah Sackman]

The hon. Gentleman’s first point is a matter for the impact assessment itself. Clearly both Departments have data on the state of the professions, on how many KCs there are in the country and on how many people will be needed to provide the service. As I say, if Parliament wishes it and legislates for it, the state will work to deliver it, but the detail will come in the impact assessment.

On the hon. Gentleman’s second question, as I made clear earlier, the effective shift away from the High Court model in clause 12 to the model in the new clauses has been driven by the policy intent of my hon. Friend the Member for Spen Valley. I will not get into the precise chronology of when the matter was raised, but it came from my hon. Friend.

Yesterday, I hotfooted it from the Committee to Justice questions, where I was delighted to see the hon. Member for Reigate. We discussed capacity issues in our Crown courts and civil courts. Those issues are well reported in the media, but there is no connection between them and the policy shift here. If this is what Parliament chooses to legislate, the state will work to deliver it.

[Kim Leadbeater]

It is important to acknowledge that it will be a number of years before this law will be implemented. Hopefully, the Government will continue the fantastic job that they are doing to improve capacity in our courts, so that even if capacity is an issue now, a few years down the line it will not be.

[Sarah Sackman]

I thank my hon. Friend for that encouragement. The Government’s position throughout the entire process, in so far as we have worked with her on these amendments and others to give effect to her intent, is to ensure that they are workable and operable. If this were not workable, we would not be here discussing it.

There are several examples across Government of judges or senior lawyers and KCs sitting on decision-making panels or in organisations or bodies that sit outside the framework of His Majesty’s Courts and Tribunals Service. We have discussed some examples, such as public inquiries. I say this as the Minister for courts: it speaks to the trust and public confidence in both judges and KCs that when there is a public policy challenge to which many of us as politicians struggle to find a resolution, we so often turn to judge-led and KC-led inquiries to establish either what has happened or how systems can be improved. That is partly because of the impartiality and integrity that they bring to that work. I offer the example of the judicial commissioners who operate on behalf of the Investigatory Powers Commissioner and who provide independent authorisation of application for the use of the most intrusive investigatory powers.

We have mentioned inquiries; I have also mentioned Parole Board panels as an example of inquisitorial rather than adversarial panels. They are often multidisciplinary, and many of their members are current or retired judges. They sit and hear issues of the most complex nature, assessing the risk that prisoners may present to the public on release.

[Danny Kruger]

I appreciate the Minister’s point about the Parole Board. Does she acknowledge that in the Parole Board example there is the essence of an adversarial system, because the victim is invited to give a statement? The board therefore hears opinions from, as it were, both sides of the case. Who will fulfil that second role in the proposals before the Committee?

[Sarah Sackman]

I drew the comparison for the purpose of showing where judges and legal experts are deployed in a multidisciplinary forum that is not a court or tribunal. I was not suggesting that there is a straight-line analogy. After all, a Parole Board panel is performing a different function to make a global assessment of risk. That is what it is ultimately doing; it is not strictly speaking an adversarial process in that sense.

The situation that the Bill addresses is that of an individual seeking to establish their eligibility for a right that—if the Act is passed—Parliament will have conferred on those who meet the criteria. It is not an adjudication. It is the panel’s function to assess, through the various conversations and provisions and by interrogating the information that has been provided, whether it is properly satisfied that the eligibility of the person’s election to avail themselves of that right is sound.

[Sarah Olney]

I am trying to clarify this for my own benefit, because I am not familiar with some of these procedures. Is there a difference between a High Court judge leading an inquiry or sitting on a panel, using their legal experience to provide advice or recommendations or give an opinion, and having a judge sitting in the High Court, who, under the original wording of clause 12, would be giving a direction? If there is a difference, have we not crossed from one role to the other by introducing a panel rather than a High Court direction? Does that matter for the purposes of the legislation?

[Sarah Sackman]

To be absolutely clear, what we are discussing reflects the intent of my hon. Friend the Member for Spen Valley. It is important to break it down. We have a judge in the role of the commissioner, and the commissioner will set up the framework and guidance for how the panels will operate and will lend their expertise. Our judges often sit on the Civil Procedure Rule Committee, developing the appropriate practice to govern the process in question. In this case, it would be the process of providing the third layer and the assessment whether the eligibility criteria have been met.

The commissioner would also—and this is where the role is distinct from that of a court or tribunal—provide a monitoring and reporting function to Parliament on the operation of the Act. That is a fundamental distinction from the model that we will have if we pursue clause 12, because in that case each application for an assisted death would go to whichever High Court judge happened to be sitting on that day. There would be no requirement for particular expertise on the part of the High Court judge, and that judge would not have to report on the operation of the Act. It is a different model that my hon. Friend has elected.

--- Later in debate ---

[Liz Saville Roberts]

The situation exists already in Wales. For example, people are prepared to travel in order to facilitate Welsh-medium coroner inquests. There are local authorities such as my own, Gwynedd, that have a requirement that all social workers be able to work in the medium of Welsh. The requirement will already be there, but this is a process of acknowledging those psychiatrists who are able to meet it. It is critical for the Bill, if we are to put the person and their needs first.

I urge the Minister to consider the amendment. We are already familiar with this matter in relation to digital technology and the operations that we already need to put in place to allow people to use their language in Wales. The amendment recognises the dire situation. It recognises the absolute urgency of people who are at the most stressful time in their life being able to use the language that they prefer.

[Sarah Sackman]

I want to reassure the right hon. Lady about the provisions that will apply even if her amendment is not accepted. The Welsh Language Act 1993 requires public bodies that are either named in the Act or named by Welsh Ministers, and which provide services to the public in Wales, to prepare a Welsh language scheme setting out the steps that the body will take in relation to the use of the Welsh language while providing those services. As I understand it, this approach is used all the time in legal proceedings in Wales.

In an instance in which a party wishes to speak in Welsh at the proceedings, section 22 of the 1993 Act will apply. Any party to the legal proceedings can express themselves in Welsh, at which point a Welsh interpreter would be commissioned to facilitate the discussion. That will happen. That will be the status quo—the backstop, if you like—without the amendment. Requiring all members of the panel to speak fluent Welsh would, in the Government’s view, be a significant operational challenge that could lead to undue delay at the end of life.

[Tom Gordon]

I speak only one language and it is definitely not Welsh, even though I did have a stint working in Wales. With any language, things can be lost in translation. When we are talking about something like assisted dying, does the Minister acknowledge that even with very skilled interpreters, there would have to be a suitable level of training to make sure that everything was fully thought through and there were no cracks—that nothing would slip through the net. That is not covered under the Welsh Language Act currently, and that is why the amendment has been tabled. Does she appreciate the severity of that?

[Sarah Sackman]

]The right hon. Member for Dwyfor Meirionnydd and the hon. Members for Chesham and Amersham and for Harrogate and Knaresborough have all put their case incredibly powerfully. In emphasising the operational difficulties that the Government have identified, I will make this point. The approach under section 22 of the Welsh Language Act is that the ability to speak in Welsh and have interpretation services is adopted in very serious legal proceedings indeed. The hon. Gentleman is right: we are talking about nuances that can determine civil or criminal liability; those are very serious issues indeed. I am not saying that that is quite as serious as matters of life or death, but getting right the sorts of things that interpreters need to ensure they are getting right, as well as vindicating the person’s ability to express themselves in their mother tongue or their preferred tongue, is something that happens already and would happen under the operation of this legislation.

[Liz Saville Roberts]

I wonder whether the Minister appreciates that when it comes to Welsh speakers using their language in the face of the majority language, English, with its status, what we are doing here is putting another barrier in their way: “I am making a nuisance of myself; I have to ask a favour and get interpreters.” That is not what we should be doing with this legislation. We should be putting those people first and making sure that they can express themselves at this most emotional time as effectively as possible. Interpreters should not be in the room with the assisted dying panels. That is fundamentally against the nature of the Bill.

[Sarah Sackman]

I appreciate the passion and force with which the right hon. Lady makes that point. I have set out the Government’s concerns about deliverability—the operational challenges around delivering what has been suggested. This is a case of applying section 22 of the Welsh Language Act to the commissioner, who under the promoter’s new schedule 2 would be able to give guidance to panels on how exactly they should facilitate exactly what the right hon. Lady is seeking—the ability of the dying person who is seeking an assisted death to express themselves through the Welsh language within those most sensitive of proceedings. There could be facilitation by the commissioner in order to commission an interpreter and assist the person to speak in Welsh.

I appreciate that the right hon. Lady feels that that would create a barrier that is not appropriate to this context, but I think it is a reflection of the fact that certainly the Government are not seeking to stand in the way of people expressing themselves in Welsh. We want to vindicate that. It is in line with our wider commitment to devolution and to working with the devolved Governments in the context of the Bill. The right hon. Lady has made her point forcefully, and no doubt the Committee will come to vote on this amendment, but I have to, on behalf of the Government, acting responsibly, lay out some of the challenges that it would mean to the operability and deliverability of the Bill.

[Sarah Green (Chesham and Amersham) (LD)]

I accept that the Minister is in a difficult position, because she is presenting the case for the Government’s position and cannot take a position herself. I will just gently ask whether she accepts the weariness of Welsh language speakers and campaigners over generations, who have been faced time and again with the same argument—of operational challenges, whatever that issue may be. I suggest to her that perhaps it is time that the Government stopped using that excuse.

[Sarah Sackman]

I thank the hon. Lady for that intervention. She has heard the Government’s position on the operation of the Bill. As I said, it is important that, in the event that this amendment is not taken forward, the points and the force with which they are made are fed into the commissioner’s modus operandi in order, as far as possible and within what resources allow, to allow people to express themselves in the Welsh language. As I said, I want to put on record our continued commitment to devolution in that context, and to working with the Welsh Government to resolve in a thoughtful and constructive way any of the outstanding legal, technical and constitutional issues that may arise.

[Liz Saville Roberts]

Surely many of the constitutional issues that we are discussing should be decided by the Senedd and the Welsh Government. It is a matter of urgency now that we discuss the “appropriate authority”, which is a term used in other legislation. I believe that in the Crime and Policing Bill, “appropriate authority” is used in relation to England and Scotland. We need to have clarity on these decisions as we move ahead.

[Sarah Sackman]

The right hon. Lady is absolutely right that we do need clarity. As my hon. Friend the Member for Spen Valley has made clear, the intention is for the legislation to apply across both England and Wales, and the model being proposed under these provisions is a single commission. We need to ensure close working to resolve those technical and legal issues.

Amendment (b) to new schedule 2 deals with the issue of the Official Solicitor. It seeks to establish a process through which a person nominated by the Official Solicitor acts as an advocate to the panel. It is important to remind ourselves of the role that the Official Solicitor typically plays. They act as a litigation friend, and where they do act as an advocate to the court, the purpose of that function is to assist courts on a difficult or novel point of law. The focus of the Official Solicitor is in representing adults who lack mental capacity, and children. Both groups are plainly out of the scope of the Bill. The Bill applies to someone who has capacity and who is applying for an assisted death.

The amendment would require a significant and radical change in the function and focus of the Official Solicitor. Under new schedule 2, assisted dying review panels would have their own powers to determine whether the requirements of the Bill had been met, including the ability to hear from and question any other person.

[Naz Shah]

The Minister is being very generous in giving way. I want to understand something. She says that the Official Solicitor is there to help with adults who lack capacity, but in the cases before the Court of Protection of the girls who had anorexia, the judges took a decision that they should not continue to be force-fed. The judges concluded in nine of 10 cases that they lacked capacity, and yet accepted that these girls were inevitably going to die. In that case, would the role of the Official Solicitor not be helpful as a further safeguard?

[Sarah Sackman]

It is important to look at this issue in the context of what my hon. Friend the Member for Spen Valley is setting out to do through the legislation, and what the panel’s function is, which is the function that was discussed in the debate. This is not a trial or an inquiry. That is not what is being undertaken by the panel. The panel’s purpose is to ensure that the eligibility criteria process has been followed in a correct, lawful and safe way. As others have pointed out, it is not adversarial, and will not be described as such in the Bill.

All that I am saying on behalf of the Government is that the Official Solicitor’s role is most frequently to assist in court with a difficult or novel point of law when the person cannot do it themselves. Well, we do not have that here. We are not determining points of law; we are determining whether this person has met the eligibility criteria. Secondly, the Official Solicitor’s role is for when individuals lack capacity. In the Bill, by definition, the person who is applying has already satisfied two doctors that they have capacity. Of course, the question of capacity may be something that the panel wishes to explore further—it has the three panel members and the ability to draw on its powers to seek further information to test that—but it is not clear, without altering the current role that the Official Solicitor plays within our legal system, what role they would be serving.

[Naz Shah]

I appreciate the Minister’s position and am grateful for her explanation, but it does not address the central point, which is that nine girls were deemed not to have capacity. Despite all the amendments that have been tabled and the letter from all the charities about anorexia, that has not been addressed. In absence of any impact assessment on one of the issues that most frustrates me, how do the Government conclude that the workability of the Bill is sufficient? Will it work, given that we do not have the protection for those girls who may have anorexia? There is precedent for such girls who did not have capacity. How will the Government safeguard those girls in particular?

[Sarah Sackman]

I thank my hon. Friend for her intervention. She has brought up that case a number of times in various debates on the Bill. In this context, part of the provision—in terms of the design and operation of the commissioner and the panels to which the various cases are referred—is the development of guidance. If the commissioner deems specific processes appropriate to the consideration of applications for assisted death where anorexia is an issue, that guidance can be developed. Again, that is a matter for the promoter of the Bill, but one might have thought that having a dedicated body in relation to assisted death—which also has the monitoring function that we will come to in clause 34—means the development of expertise in dealing with cases, in particular those especially difficult cases of the nature my hon. Friend the Member for Bradford West raises. From a Government point of view, that would not necessarily flow—it is hard to see why it would at all—from the High Court, if we revert to that. That is a distinction between the two models that the Bill’s promoter has explored.

[Kim Leadbeater]

That is another important argument for having the panel. Where a terminally ill person with an eating disorder has been deemed to have capacity by two doctors and—I surmise, as we now have the compulsory referral—a psychiatrist, we will have on the panel another psychiatrist and a social worker. The panel does help to address concerns about capacity. Does the Minister agree?

[Sarah Sackman]

My hon. Friend has developed her thinking, and the Government have worked with her to reflect that policy intent. I think she is right that the panel is capable of doing just that and it could operate in that way.

Amendment (c) to new schedule 2 relates to the issue of domestic abuse training. It would make the voluntary assisted dying commissioner responsible for ensuring that all panel members had received training on domestic abuse, including coercive control and financial abuse. Persons appointed to the list of eligible panel members would already be qualified in the field of law, psychiatry or social work, and would have done all the training that pertains to receiving a professional qualification in those fields.

In addition, under new schedule 2 tabled by my hon. Friend the Member for Spen Valley, the commissioner would be able to give guidance to the panels, which could include training requirements, and the panels must have regard to that guidance in the exercise of their functions. That is all I propose to say about that. It might be seen as an example of something that would typically—I am not saying it has to—be left to regulation or the guidance, rather than being in primary legislation.

Amendment (d) to new schedule 2 relates to the panel sitting in private or in public. It seeks to ensure that panels sit in private by default.

[Kit Malthouse]

I am not sure that my amendment (d) was selected—unfortunately, I missed the deadline—so the Minister does not need to cover it.

[The Chair]

Order. I will suspend the sitting—

[Sarah Sackman]

Put us all out of our misery!

[The Chair]

I did not wish to say that, but the Minister did. We will come back at 5.10 pm.

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

Sarah Sackman Excerpts

Committee stage
Wednesday 19th March 2025 Public Bill Committees

[Danny Kruger]

I am grateful. With great respect to other members of the Committee, I think the hon. Gentleman is the most honest advocate of assisted dying among us, because he genuinely recognises that autonomy demands the widest possible range of eligibility. It might be that other Members feel that we have the balance exactly right. I recognise the force of his argument that if we are going to introduce a new human right, it is very difficult to circumscribe its boundaries. He himself thinks that there should be some boundaries: he proposed an amendment that specified 12 months, and he thinks that only certain people should be able to ask someone else to perform assisted death to them. Nevertheless, he is acknowledging that if we believe in autonomy, the Bill would not satisfy some people.

I think it would be intellectually coherent and more logical for proponents of the Bill to want to repeal section 2 of the Suicide Act, and I do not understand why they are not doing so. We could certainly continue to insist on prohibitions against any form of coercion, persuasion or inducement to take one’s own life, but if somebody is clearly in their right mind and wants to receive assistance to kill themselves, that is the principle of the Bill. It would be neater if we amended the Suicide Act accordingly.

The fact that proponents do not want to do so suggests that they see some value in the law and that they consider that that value trumps concerns about autonomy and the impact of the law on family members of someone who wishes to travel to Switzerland to end their life. I agree that there are such principles—namely, the intrinsic value of life and the protection of the vulnerable—but I do not see why proponents of the Bill consider that such principles trump autonomy when it comes to terminally ill adults in England.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

It is a pleasure to serve under your chairship, Mr Dowd. My remarks, as ever, will focus on the legal and practical impact of the amendments to assist Members in undertaking line-by-line scrutiny. In exercising our duties to ensure that legislation that is passed is legally robust and workable, the Government have worked closely with my hon. Friend the Member for Spen Valley to reflect her intent.

Clause 24, as amended by amendments 504 and 505, will mean that individuals who assist a person to end their life in accordance with the terms of the Bill are not subject to criminal prosecution. Currently, it is a criminal offence under section 2 of the Suicide Act 1961 for a person to do an act that is

“capable of encouraging or assisting the suicide or attempted suicide of another person”

and intended

“to encourage or assist suicide or an attempt at suicide.”

That offence attracts a maximum penalty of 14 years’ imprisonment. Amendment 504 would amend clause 24(1) to ensure that a person is not guilty of an offence—[Interruption.]

[The Chair]

Order.

--- Later in debate ---

On resuming—

[Sarah Sackman]

I was introducing amendment 504, which amends clause 24(1) to ensure that a person is not guilty of an offence by virtue of providing assistance in accordance with, or performing a function under, the Bill—for example, by undertaking the first or second assessment or providing the approved substance. The effect of the amendment is to ensure that a person is not guilty of an offence by virtue of assisting a person seeking to end their own life in accordance with the Bill. The phrase “in accordance with” the Bill is key. For example, where someone accompanies a person to the appointment at which they will self-administer the substance, the amendment would carve out any criminal liability for the accompanying person.

As originally drafted, the wording would have limited the protection offered by subsection (1) to the far narrower situation of the medical professionals providing assistance under clause 18. The amendment will give effect to the policy intent of the hon. Member for Spen Valley of applying that protection to all those who provide assistance in accordance with, or by performing a function under, the Bill. Subsection (2) clarifies that the clause does not override other ways in which a court may find that a person is not guilty of an offence.

Clause 24(3) inserts proposed new section 2AA into the Suicide Act 1961. As amended by amendment 505, that new section ensures that it is not an offence under the Suicide Act to perform a function under the Bill, or to assist a person seeking to end their own life by doing anything under the Bill. That is for the same reasons that I set out in relation to subsection (1). The new section also provides a defence to the offence of encouraging or assisting suicide, where a person reasonably believes that they were acting in accordance with the Bill, and that they took all reasonable precautions and exercised all due diligence to avoid committing the offence.

Taken as a package, the effect of these amendments is to make the Bill legally workable. To do that, it is necessary to ensure that those who assist a person to use the lawful route are not then subject to criminal liability for doing so. Clause 24 clause, taken together with amendments 504 and 505, gives effect to that.

Let me address some of the issues raised by Opposition Members. There was a question as to whether there is any overlap between offences under the Bill—we will come to some of those offences in due course with clauses 26 and 27—and offences that remain on the statute book under the Suicide Act. The short answer to the question from the hon. Member for Reigate, although I know she has written to my Department, and I will ensure that she receives a full written answer, is that it would remain an offence under the Suicide Act 1961 to encourage suicide, including an assisted death under this Bill.

To the extent that any overlapping offences remain, that is not an unusual approach to drafting in the criminal law. However, the effect of the clause is that it would remain an offence under the 1961 Act to encourage someone to commit suicide. Where a person’s “encouragement”—the hon. Member focused on that term—is such that it amounts to what the courts would understand to be pressure or coercion, that could be an offence under clause 26, which we will come to. As I said, it is not unusual to have a degree of overlap in criminal offences. Again, what someone is charged and prosecuted with falls to the prosecutor, depending on the specific circumstances of the case and what would be most appropriate in that scenario.

I also want to address the scenario that the hon. Member for East Wiltshire posited, about whether a pharmacist who acted in a way that amounted to gross negligence manslaughter would benefit from immunity under clause 24(1) as amended. Again, with the important caveat that it will depend on the particular facts of the case, the offence of gross negligence manslaughter is committed where a death is the result of gross negligence in what would otherwise be a lawful act or omission on the part of the defendant, and where the defendant owes a duty of care to the victim—there are a number of actors within the Bill’s process who owe a duty of care to the person applying for assisted dying.

Let us assume for a moment that, in the hon. Member’s scenario, we do have gross negligence manslaughter on the particular facts; in those circumstances, the Government are content that the pharmacist could not be properly said to be performing a function under the Bill, or in accordance with the Bill, so clause 24(1)—the carve-out from criminal liability—would not apply. I think that that covers most of the questions that were posited earlier.

[Danny Kruger]

It may well be that the Minister has clarified the case sufficiently, but will she explain something for my sake? She is suggesting that the pharmacist inadvertently but negligently caused the death of a patient, having performed the duties under the Bill and believing that they were doing so. Surely, they were performing duties under the Bill, so they would potentially be captured by the carve-out.

[Sarah Sackman]

Again, it would depend on the actual facts. However, if they were attempting to perform duties under the Bill, it is highly unlikely that, in circumstances where the facts establish and meet the threshold of gross negligence manslaughter, they could be said to have carried out those duties in accordance with the Bill. They might have been carrying out duties that they thought were what the Bill prescribed, but if they have done that in such a way that it amounts to gross negligence manslaughter, then clause 24(1) would not apply.

The hon. Gentleman makes the point about what the pharmacist in that scenario believes they are doing; that belief has to be reasonable, and that is a test that our courts are well used to applying. That is why the amendments introduce the belief that someone is acting in accordance with the Bill. It is not enough that they think they are doing it; it has to be a reasonable belief. That is an objective standard.

[Rebecca Paul]

I thank the Minister for those helpful clarifications. Was any consideration given to also exempting encouragement as an offence under the Suicide Act? I am interested in why it was not exempted in the same way as assistance, particularly given that if it did fall within coercion and pressure—based on what the Minister said—it would get picked up as a criminal offence anyway under the Bill. I appreciate that the Minister will write to me on some of this, but the issue comes back to what is encouragement. As the hon. Member for Spen Valley set out—

[Rebecca Paul]

My apologies, Mr Dowd, but it is a technical point. I think the Minister understands what I am asking.

[Sarah Sackman]

Helpfully, the hon. Member has also set out her questions fully and precisely in a letter to me, so I think I know what she is asking and I will try and answer it as best I can. I reiterate, as I and the Minister for Care have said throughout, that the policy choices have been for the promoter—the Government remain neutral. The offence of encouraging or assisting suicide or attempted suicide in section 2 of the Suicide Act is well established. Encouraging someone to go through the assisted dying process under the Bill with the intention of encouraging suicide or an attempt at suicide would therefore remain a criminal offence under section 2 of the Suicide Act. That is what I made clear earlier.

What we are talking about will always depend on the particular circumstances of the case. It is the Government’s view that in a scenario—I think this is what the hon. Member for Reigate is getting at—where a family member or friend simply suggests to a person with a terminal condition that the option of assisted death under the Bill is something they may wish to consider, and nothing more, it is unlikely—dare I say, inconceivable—that that would amount to an offence under the 1961 Act.

However, if someone encourages a person in a more tangible way, such as encouraging or pressuring them to make the first declaration, that could well amount to an offence under the 1961 Act. Where that encouragement crosses the threshold into what, interpreted in line with their natural meaning, the courts would understand as pressure or coercion, that could amount to an offence under clause 26 of the Bill, which we will come to in due course. I hope that that addresses the hon. Lady’s question. I will set that out to her in writing, and she is welcome to write back if there is any ambiguity.

I hope that that assists the Committee. I am going to sit down before anybody else intervenes.

[The Chair]

May I make an observation? I understand where the hon. Member for Reigate is coming from, but if letters have gone back and forth to the Department and other Committee members are not privy to what they say, the debate gets a little abstract. That is all I am trying to get to—we should not get too abstract, so that everybody knows what is being said.

--- Later in debate ---

[Kim Leadbeater]

Thank you, Chair.

[Sarah Sackman]

I will address the point about injunctions, which we have touched on at a number of junctures in our debate. In terms of applying for an interim injunction in a civil case, a very well-established test is the American Cyanamid test, which all the lawyers in the room would have learned at law school. The first of those tests is, “Is there a serious issue to be tried?” Someone does not have to establish to the civil standard—

[The Chair]

Order. Can we get the order of debate right? Members may make a speech for as long as they want, on the issues they want. They may intervene to get clarity from another Member, but that has to be short and sweet. There is nothing to stop a Member from making another speech, even if they have spoken before. I exhort Members, if they want clarity, to make a speech separately, unless it is a very short intervention. If it is going to be a long intervention, they may well want to make another de facto speech and get clarity through that. They are entitled to stand up as much as they want. I am not encouraging Members to do that, but that is the gist. If the Minister wants to stand up again and clarify the point in its own speech, that is fine.