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

Sean Woodcock Excerpts

Committee stage
Tuesday 11th February 2025 Public Bill Committees

[Naz Shah]

I completely agree.

Professor Owen also said:

“I have had over 20 years of research interest in mental capacity. When I look at the issues relating to mental capacity with the Bill…the other important point to understand is that they are very novel. We are in uncharted territory with respect to mental capacity, which is very much at the hub of the Bill.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q286.]

Like my hon. Friend the Member for Bexleyheath and Crayford, I am certainly not a doctor, although I have experience in the NHS, but I do know that we do not have psychiatric experts or experts on capacity in this Committee.

[Sean Woodcock (Banbury) (Lab)]

Earlier, the hon. Member for Solihull West and Shirley made a point about public confidence in the Bill. In oral evidence, the representatives from the Royal College of Psychiatrists—we nearly did not hear from them; we had a vote about whether we would, and they were added later—made it clear that they have severe doubts about applying the Mental Capacity Act to the Bill. Does my hon. Friend share those concerns?

[Naz Shah]

I absolutely share those concerns, which is why I pressed the issue to a vote. As I have explained to my hon. Friend the Member for Spen Valley, I am grateful that the Royal College of Psychiatrists gave evidence. It said that the Mental Capacity Act

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

In oral evidence, Professor Jamilla Hussain, an expert in palliative care and health inequalities, highlighted an inequity in assessment using the Mental Capacity Act. She said that she does not think that

“the Mental Capacity Act and safeguarding training are fit for purpose. For something like assisted dying, we need a higher bar—we need to reduce the variability in practice.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 199, Q260.]

My hon. Friend the Member for Penistone and Stocksbridge mentioned the process in the Bill being repeated eight times, but I want to bring us back to the issue of capacity in relation to coercion. The Royal College of Psychiatrists said:

“In any assessment of capacity, we must also consider whether a person is making the request because they consider that they are a burden or because they do not consider that they have access to effective treatments or good-quality palliative care. At a population level, palliative care, social care and mental health service provision may impact the demand”

for an assisted dying service. Although I appreciate that we will debate this in greater detail later, on clauses relating to coercion, it relates to the issue of capacity. In her evidence to the Committee, Chelsea Roff, a specialist in eating disorders, said:

“One thing I would like to highlight in our study is that all 60 people who died”

by assisted dying after suffering from anorexia, who were mostly young women,

“were found to have mental capacity to make the decision to end their life, so I worry that mental capacity will not be an effective safeguard to prevent people with eating disorders from qualifying under the Bill.

I also note that Oregon and California, where I am from and where we have found cases, have an additional safeguard to mental capacity. That is, if there are any indications that the person might have a mental disorder, that person must be referred for a mental health assessment.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 141, Q177.]

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[Kim Leadbeater]

I will try to keep my comments brief. It is excellent that we have had such a thorough debate on this particular issue, but I am also very conscious of time.

I will do the quick and easy bit first. As the Minister has just said, amendment 202 is to correct a typographical error in the initial drafting of the Bill—despite the high level of expertise involved in the initial drafting of the Bill, that one managed to sneak through. The amendment would simply change the word “capability” to “capacity”, to be consistent with the rest of the Bill.

I now come to amendments 34 to 47 and new clause 1. As we have discussed, those would replace the concept of “capacity”, which is based on the Mental Capacity Act, with a new concept of “ability”. I think that suggestion is coming from a good place and is made with good intention by the hon. Member for Richmond Park; I thank her for her positive engagement with the Bill. However, based on the oral evidence that we received, particularly from the chief medical officer and many other experts, the suggestion would seem unnecessary given that we already have—as has been discussed at length this afternoon—a very well established piece of legislation that is effective in this regard.

The primary purpose of the Mental Capacity Act is to promote and safeguard decision making within a legal framework. As the CMO and other colleagues have said, issues around mental capacity

“are dealt with every day, in every hospital up and down the country; every doctor and nurse above a certain level of seniority should be able to do that normally.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 31, Q3.]

That view was supported by Yogi Amin, an expert in Court of Protection work, human rights and civil liberties, who told us during the oral evidence sessions:

“It is well understood how capacity assessments are done, and it is ingrained”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 140, Q176.]

[Sean Woodcock]

We all understand the evidence of the chief medical officer and why he and others, including Members here, prefer the use of the Mental Capacity Act. It is understood by doctors and it is used every day.

What this debate is fundamentally about is that assisted dying is not done every day. It is not something doctors are used to. As somebody who has said that she wants the toughest safeguards, it is incumbent on my hon. Friend the Member for Spen Valley to understand that what those of us who have concerns about the Bill are saying is that this is unusual. It is a step into the dark.

The amendment tabled by the hon. Member for Richmond Park is about making sure that the issue is not just about what doctors are used to, but that there is another safeguard to ensure that people are not being exploited. Does my hon. Friend understand that?

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[Sean Woodcock]

My hon. Friend the Member for Stroud, in his rebuttal to my hon. Friend the Member for Bradford West, described assisted dying as “medical care”. Personally, I do not regard assisted dying as medical care. Does my hon. Friend agree?

[Naz Shah]

I am still having that debate in my head, and I am not convinced. I will not digress—I will come to the point—but there is a conversation about whether it is “treatment”, “assisted suicide” or “assisted death”. Those terms have been bandied about. I genuinely think that, ultimately, we have to use the word “suicide” because we are amending the Suicide Act 1961. I appreciate the context in which the promoter of the Bill puts it forward, but the truth is that it is about taking one’s life, so that is how I respond to that question.

To come back to the amendments tabled by the hon. Member for East Wiltshire, the reason why I will support them is that I have way too much experience of people in vulnerable positions, and I have a lifetime of experience of seeing what happens. I do think there are options when somebody has a diagnosis of terminal illness. The prison systems are set up to be able to give them compassionate leave and to explore other avenues. Once they are outside that system, they can access support and have their vulnerability reduced.

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[Danny Kruger]

I trace our liberties to an evolution of British law, and of English law, that recognises the essential nature of our individuality as being socialised. We belong to one another and we derive our freedom from other people. Our autonomy, Magna Carta and all the liberties of the individual proceed from that. None of us, no man, is an island. That is what I suggest to my right hon. Friend. His point was about treating everybody as solitary individuals, making independent private decisions. That is not the way any of us operate; it is certainly not the way people in the most vulnerable circumstances operate. What actually happens is that we are heavily influenced by the people around us, by our circumstances and by the choices before us.

To descend from the abstract, let us consider an actual case, albeit a hypothetical one. Someone is in prison. They have committed some crime, or they have not committed a crime but have been remanded. Their whole family life has been smashed to pieces over the years, or just recently. They then get the terrible diagnosis of a terminal illness. A doctor says to them, because they are allowed to do so under the Bill, “You know, one of your options is an assisted death.” I think that that would be incredibly influential, to the point of serious concern, for those of us who know how vulnerable people in prison are. The same applies to people living on the streets, the people my right hon. Friend was describing.

[Sean Woodcock]

I believe that what the hon. Member has just espoused, and what has prompted this amendment, is the sort of thing that would have come out if we had had an impact assessment. If this were a Government Bill, some sort of consultation would have flagged up the potential issues ahead of the next stage. I believe that that is the exercise in which he is engaged. We have been promised a Bill with the strongest possible safeguards. He comes from a position similar to mine, which is that there is no stronger safeguard than preventing people from having assisted dying. I believe—I am happy to be corrected—that what he is trying to do in the absence of that is flag up potential issues that mean that more safeguards are needed than are being offered in this Bill. Is he prepared to comment on that?

[Danny Kruger]

The hon. Gentleman is absolutely right. Once again, it is a shame that we are feeling our way in the absence of that assessment. Nevertheless, I think we all have experience and we can draw on the evidence. The hon. Member for Bradford West made a very powerful point, and she was absolutely right. I spoke earlier about the evidence on suicide among the male prison population; I have experience of working with women in prison as well. There is a genuine danger of chronic, almost epidemic, self-harm among the female prison population. Likewise—this is a fact that we need to bear in mind throughout the debate—suicide is itself contagious. That is why it is so important to discuss it in a responsible way. The option—I use the term advisedly—of assisted suicide is itself dangerous in the context of a prison population in which these ideas are contagious.

My right hon. Friend the Member for North West Hampshire talks about the need to assess each case on its own merits, individually. I recognise that, and in principle of course that is what we should be doing. Nevertheless, that assumes that the safeguards in the Bill are adequate to the challenge of dealing with people in such particularly vulnerable circumstances. I am concerned that they are not adequate anyway. I believe very strongly that they are not appropriate to people in these circumstances and that therefore it is appropriate to have what he calls a blanket ban.

As I said in an intervention earlier, we have to treat particular classes of people in the same way. We do that all the time, with respect specifically to the prison population. The fact is that we have to draw the line somewhere. We are drawing the line in all sorts of places in this Bill—around the age limit and around diagnosis and prognosis. I think it would be very appropriate, given the extreme vulnerability of these populations, to draw it around them and protect them from the vulnerabilities and dangers that I think all Members recognise might apply in certain circumstances. They will apply in heightened likelihood to these populations.

I do not propose to press these amendments to a vote, but I am grateful to hon. Members for the points that they have made, and I hope that the concerns have been noted. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 179, in clause 1, page 1, line 13, after “provided” insert “in England or Wales”.—(Kim Leadbeater.)

This amendment limits the assistance that may be provided in accordance with the Bill to assistance in England or Wales.