Terminally Ill Adults (End of Life) Bill (Twenty First sitting)

Simon Opher Excerpts

Committee stage
Tuesday 11th March 2025 Public Bill Committees

Complications have been reported in other jurisdictions as well. In 2019, Washington state stopped reporting data relating to complications, despite multiple complications being reported in the years before then. None the less, complications including regurgitation, seizures and regaining consciousness have all been recorded since implementation in Washington. In 2018, there were eight recorded complications in Washington, all of which were regurgitation as a result of the ingestion of lethal drugs.

[Dr Simon Opher (Stroud) (Lab)]

I thank the hon. Gentleman for tabling amendment 362. Does he accept that Australia, for example, has a very different regime from America? In Australia, people are given pentobarbital, which has not failed on any occasion—in any of the 2,500 treatments since assisted dying was legalised. In America, people are not allowed to use that; instead, they use another cocktail of drugs, which is not as ideal and can have other side effects. May I also say that I am not sure whether it is totally relevant to discuss the problems of a drug given in America in this context? We are discussing just putting down in law what the doctor is obliged to say to the patient.

[Danny Kruger]

I am grateful to the hon. Gentleman for those points because he helps me to direct my argument. It is essential to discuss the evidence from abroad about the complications that arise from assisted suicide, but the evidence is very patchy: we know what we know, but we don’t know much. There is a complete dearth of evidence, including in Australia. When Australians gave evidence to the Committee, it was put to them, accurately, that there is a great lack of adequate data gathering in Australia, as in other countries too. So when he says there have been no complications in Australia, what he means is that there have been no reports of complications in Australia. As we always need to point out, absence of evidence is not evidence of absence.

[Danny Kruger]

Let us not rehash the conversations that we had in the evidence sessions, but I would advise Members to review those conversations. Indeed, there is further publicly available evidence, which I am happy to share, of the problems with data collection in Australia, as in other countries. To the point of the hon. Member for Stroud about the evidence of complications that arise in other jurisdictions being irrelevant to our discussions, because of the lack of clarity in the Bill about what drugs would be used to bring about the assisted suicides that we are proposing to legalise, all we can do is rely on evidence from abroad, and I will insist on doing so.

As well as questions about complications and side effects, there is also a crucial question about how long it takes to die. In Canada, a study demonstrated that in 5% of cases, patients experienced a prolonged time to death. Another study showed that 50% of cases in Canada with available data—again, there is a lack of data—were unsuccessful within 60 minutes. It is clearly common in other countries for death to take up to or more than an hour.

The Canadian Association of MAiD Assessors and Providers—the people who do it—acknowledged that patients who ingest assisted suicide drugs can experience burning, nausea, vomiting and regurgitation. I am not saying that that always happens, or that it happens in the majority of cases, but it clearly happens. It is therefore appropriate for patients to be properly informed of those risks, if they are associated with the drugs that will be used. We do not know what those are going to be at this stage.

In the Netherlands, where assisted dying or assisted suicide has been legal for 20 years, a third of people with assisted suicide deaths experience some adverse symptoms such as pain, restlessness, shortness of breath, secretions, nausea and vomiting—that is, a third of people experienced some of those distressing side effects as they died, so it is very far from a guarantee of a pain-free death. It is vital that people considering an assisted death are aware of those possible effects, in addition to the primary effect of the drugs which is, of course, to kill them.

There is also a question about the method of administration. People should know that where regimes use the intravenous route of a short-acting anaesthetic, that is also not without problems. People would understand, and potentially argue for, having an anaesthetic as the first part of the cocktail of drugs that will be administered, but evidence from abroad demonstrates that the anaesthetic induction agent, which is usually propofol, a drug that puts people to sleep before surgery, can wear off rapidly in some people, particularly in younger patients, those who are less ill and those who are larger in size.

In around two thirds of assisted deaths with administrations that use that technique, that anaesthetic is rapidly followed by a paralysing agent. The patient cannot then move a muscle and, unable to breathe at all, they die of asphyxia. Unfortunately, there has been no monitoring of patients while they are given those drugs to ascertain whether they regain consciousness as they die. They cannot move a muscle, so they cannot signal distress. We are unclear what the experience of the dying person is beneath the apparent calm that has been induced in them by the paralytic drug that they have been given.

We do know, however, that similar combinations have been used in judicial executions. Post mortems have shown, as reported in The Lancet in 2005, that the level of anaesthetic induction agent in the blood at the time of death was lower than that required for surgery in 88% of executed inmates. Shockingly, in 43%, the concentrations were consistent with awareness, meaning they may have suffered during the execution.

[Dr Opher]

The hon. Gentleman is bringing up lots of rather horrible stories about assisted death. That is why, in Australia, Switzerland and Holland, they have decided, instead of using the regime that he is talking about, to use pentobarbital. At 15 grams, that has not had any failures—no one has woken up. The only real side effect that people complain of before they go to sleep, which happens very quickly, is that it is very bitter. One of the reasons why Dignitas uses it is that it is so effective and it does not have those effects. I would push back on some of those scare stories.

[Danny Kruger]

I am afraid to say that the whole debate about assisted dying is replete with scare stories. The hon. Gentleman says that they are descriptions of horrible events, but that is the situation that we are dealing with. We are here to try to pass legislation that is designed to avert horrible deaths. I am absolutely committed to that as well, but the evidence from abroad shows that people can also have a horrible death with assisted dying.

The hon. Gentleman points to Australia, but the evidence from Western Australia in particular is that over 4% of assisted deaths reported complications. He might be right that it is a better regime than that used in the United States, but even there complications occur. We do not know yet what the regime will be here, but I am alerting the Committee to the genuine danger of an assisted dying regime that induces very unpleasant results for patients.

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[Naz Shah]

I completely agree with the hon. Member. He said it much better than I did in response to my hon. Friend the Member for Ipswich, so I thank him for that.

[Dr Opher]

I will be brief, because I think we have discussed this enough. I totally agree with my hon. Friend the Member for Banbury. Patients need to be informed about the procedure—there is no argument about that—and I approve of the first three amendments in this group.

Let me say a bit about data. I met the pharmacist from Australia who is in charge of assisted dying and he had data on 2,500 assisted dying patients. The data is clear: all the patients died—no one survived. Almost everyone immediately goes to sleep, which can be a problem, because if they do not take all the medicine, it causes a slight difficulty that I will explain in a minute. Fifty per cent died within 30 minutes, 70% within an hour and 95% within two hours. One patient survived for 21 hours because she had not taken the full dose because she fell asleep; that is a potential problem. All these things should be described, and are routinely described to patients in Australia.

The first thing, then, is that we have plenty of data. The second thing I want to say is that we are dealing with the end of life. I have sat with patients as they have died; I have sometimes seen people being a little bit sick. We know how to cope with that. We do not need to specify how we cope with someone who is dying, because we have done it many, many times. I do not think amendment 306 will add anything to the Bill because it is part of what doctors do normally.

[Naz Shah]

I am genuinely trying to understand and would like my hon. Friend to clarify. He says that doctors generally do this anyway, but the difference is that, in this instance, somebody has chosen to die. Generally, when doctors do anything they are trying to save patients, are they not? The general rule of thumb is that a doctor saves lives. In this instance, they are not doing that because the patient wants death.

[Dr Opher]

We are not doing that in situations of terminal care—we are allowing someone to die. We are very experienced in allowing people to die. I have done it for 25 years. It is not a new skill just because we have the assisted dying element. We deal with the situation as it arises.

[Danny Kruger]

rose—

[Dr Opher]

I had virtually finished, but I give way.

[Danny Kruger]

The hon. Gentleman puts his finger on a key point. The hon. Member for Bradford West is absolutely right: surely the hon. Gentleman acknowledges that there is a difference between allowing somebody to die and giving them lethal drugs that make them die. I am sure he would acknowledge the practical, if not the moral, distinction between the two. He says he has lots of experience of helping people to die; has he ever had experience of watching somebody die after administering them lethal drugs? No.

[Dr Opher]

No, I have not, because that is currently illegal—this Committee is about changing that—but I have sat with patients who have slowly died. It is not about whether we get an ambulance; we know we do not do that. We are allowing the patient to die, and if something happens that involves having to help them, we just do it. We do not need to specify that in the Bill: it is part of normal medical practice.

[Jack Abbott]

I will be brief, as I have already alluded to my support. I put on the record my support for amendment 93. There has not been a lot of debate on it because it is a fairly straightforward proposal.

There has been a lot of discussion. Members on both sides of the Committee have spoken in defence of the medical profession in respect of huge parts of the Bill, although they should not have to. We have of course seen occasional bad practice, as we do in all professions, but we should take a moment to reflect on the dedication, diligence, hard work and expertise of medical professionals in everything they do. This debate has on occasion almost presented this as a 50:50 choice between good doctors and bad doctors. I think we would all agree that although we want to put in the right safeguards, that is not the case at all.

I have made this point a number of times, but I do not want to accept amendments that spell out all the rules and regulations so that every doctor has to go to the nth degree all the time. As my hon. Friend the Member for Stroud has said eloquently on a number of occasions, it is already in their codes of conduct, working practice, training and everything else. However, on occasion we cannot be satisfied that something is a given. For that reason, particularly in respect of amendments 142, 362 and perhaps 305, if we say that

“the nature of the substance that might be provided to assist the person to end their own life (including how it will bring about death)”

must be discussed, it is not a huge leap to say that we should also spell out how it may be administered and the possible risks and complications that come with that. As I have said, I do not think it will create any unintended consequences. I do not think it puts the full rulebook on the face of the Bill. If we are stipulating how it will bring about the death, it is not a huge leap to also talk about the other side effects.

Cutting through some of the stories, and everything else we have heard this afternoon, we should be considering what the amendments seek to do—what they say on the tin, as it were. We should be asking doctors to have the conversations, although I am absolutely sure that, as my hon. Friend the Member for Stroud said, those conversations will happen naturally anyway. I do not think there is anything harmful in the particular amendments, as we have discussed today.

Finally, on amendment 306, I understand the points that my hon. Friend the Member for Bradford West and the hon. Member for East Wiltshire made. To be totally honest, I fail to see how the amendment satisfies the arguments they were trying to make, as powerful as those arguments are. It does not solve the issue they are looking to solve; I do not think it answers any of those questions. For that reason, I will not support amendment 306, but I am minded to support the other amendments in the group.

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[Danny Kruger]

I am afraid there is a huge degree of subjectivity throughout the Bill, and we are putting an enormous obligation on doctors to use their best judgment. However, I think it is right to stipulate more clearly that it is appropriate, in general, to inform patients’ families. Leaving the vague term “appropriate” essentially implies that it is either/or—that it is a 50:50 choice whether they do so. So it is important to specify that the expectation is that they should do so. Of course, there will be circumstances in which that would not be the right thing to do, but as the amendments make clear, they should explain that clearly if they are not going to do so.

A doctor might hesitate to suggest a discussion with family if they suspect that there are strained relationships within it. My concern is that, without clear guidance, that judgment could be inconsistent or legally challenged. The doctor might know the next of kin and believe that they would try to stop the patient from ending their life. We have heard quite often the concern about the family being some sort of coercive force, trying to prevent people from fulfilling their autonomous choice to end their life, and that we should put in place barriers to stop families trying to dissuade their loved one from assisted suicide. We heard that repeatedly, particularly from the Australian witnesses.

My concern—this goes specifically to certain communities within our country—is that doctors from individualistic cultures, which we have in western Europe and North America, would prioritise personal autonomy. They would deem it inappropriate to suggest family involvement, viewing that as an intrusion on the patient’s rights. We need to state clearly that that is not the expectation and that the expectation is that they should consider involving the family in the discussion.

My concern is also about an exaggerated respect for medical confidentiality. As the Committee knows, my belief is that this is not a healthcare treatment at all, but if it is to be regarded as such, we should not assume that medical confidentiality applies in an absolute sense. There are specific differences between this so-called medical treatment and others, which do justify an override of the assumption of total medical confidentiality. It is therefore appropriate, as in certain other medical procedures, that family members should be involved.

I want to cite the written evidence from Dr Rosemarie Anthony-Pillai, who pointed out that clause 9

“lays bare the reality that in trying to, rightly, diminish any accusation of coercion or family disagreement, this Bill will lead many to a lonely death.”

She also said:

“Families/loved ones finding out only after the event how the person died will have its own bereavement issues that this Bill in no way seeks to consider.”

I also cite the written evidence we had from AtaLoss, which is a UK charity dedicated to ensuring that bereaved people can access support. It said that discovering the decision that somebody has had help to take their own life without prior warning

“can replicate the distress often associated with sudden or suicide-related deaths, thereby intensifying bereavement trauma and potential suicide contagion.”

That is a very significant threat. We will not rehash the argument about whether suicide increases in countries with assisted suicide, but my strong view, from the evidence, is that it does.

In terms of the patient’s safety, if the process is kept secret even from those who know the patient well, the assessing doctors and the panel will be asking very difficult questions about the patient’s feelings and circumstances partly blindfolded. If a patient is in a controlling relationship, they and the person abusing them are not going to volunteer to the doctor or the panel that there is any pressure going on—indeed, the patient may not even understand it to be pressure. It is very common for an abusive partner to try to isolate the victim from their close friends and family. The hon. Member for Ealing Central and Acton (Dr Huq) wrote recently about how this has come up in her constituency. The ex-husband of her constituent’s sister reappeared on the scene, charmed and isolated this woman, and got her to change her will in his favour. That is a technique of coercive control. Some level of required notification to the wider family would make it much harder for a controlling partner to push someone through this process without it being exposed.

It was made clear earlier today that the Bill’s supporters do not want any hard-edged reasons that count as bad reasons to die to be stated in the Bill—they do not want it asked at all why someone wants to have an assisted death. As it stands, the doctors and the panel would have to approve the death as long as it was the patient’s clear, settled and informed wish, but involvement of those who know the patient well might demonstrate that it was not clear, settled or informed. They may have regularly gone through patches of feeling unloved and unsupported all their life, and that could change. That is information that only the wider family would know.

To conclude, there is real suffering hereto—as I have said, nobody exists in a vacuum. I want to reference the opinion of Judge Elósegui in the European Court of Human Rights. Her opinion was a partial dissent in the Mortier case, which has been discussed before. She said:

“it should be underlined that it cannot be said in an exhaustive way that the principle of autonomy always and at all costs has primacy over the other three principles of bioethics. In particular, we must take into account the consequences of our actions on the rest of the family unit and on our circle of friends.”

That is highly relevant. If we see cases where somebody dies by assisted suicide, and the first thing their child or parent knows about it is they are told to come and collect the body, that will be a scandal. That has happened in other countries, and the Mortier case is a case in point.

I mentioned other cases in which it is obligatory to consult and inform family members. At the moment, that is what happens at the Court of Protection with much less serious applications. Practice directive 9B requires doctors to notify

“at least three persons who are likely to have an interest in being notified”.

That is in the case of organ donation and other procedures. Families are required to be notified, and an indicative list is given, which is supposed to be worked through in order—spouses, people who live with as a spouse, parents, children and so on. The authorities are to jump along through that list, again with some discretion given to them.

To end, on the standard guidance referred to in judgments on that procedure, the judgement of Senior Judge Lush in the Court of Human Rights included the observation that the decision not to notify someone who would otherwise be entitled to be notified is not something that just affects the applicant. It is not just about their interests; there is a wider concern for the whole of society and indeed the family. That is why I support the amendment.

[Dr Opher]

I thank my hon. Friend the Member for York Central for tabling the amendment. The crucial word that the hon. Member for East Wiltshire said in all that was “should”. It is really important that people are strongly encouraged to discuss this with their families. Clause 9(2)(f) states that

“in so far as the assessing doctor considers it appropriate, advise the person to consider discussing the request with their next of kin and other persons they are close to.”

I totally support all that the hon. Member said: the family should always be involved in every decision. However, in the way we practice medicine in this country, if a patient has capacity—if they are not under a section under the Mental Health Act, for example, and can show that they have capacity—they can make decisions about their own healthcare. That involves whether they tell their family.

I agree that not to tell the family is not the best thing and not something I would say that the patient should do, but that is in their remit. It is important because, if we change that, we get rid of all the basis and the foundation of medical care and consent in this country. I agree wholeheartedly with the hon. Member, and I am a strong supporter of the family—I also think that in almost every situation the family will be involved—but the patient does not have to tell the family. That must remain part of their decision.

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

I am torn by this amendment. I absolutely accept that it is the right, the autonomy, of an individual to make the decisions and to have confidentiality when making those decisions, but I will touch on a few things that I have said previously.

First, briefly, I hear what the hon. Member for East Wiltshire said about coercion. Secondly, however, there are two other aspects. Let me go back to something I have talked long and hard about, which is learning disability. One amendment has been accepted and I hope more are to come, but given what my hon. Friend the Member for Stroud said, in that scenario, someone might have to be helped by the doctor to make the decision, because of their level of capacity. When I have made the argument throughout our debates, that has never ever been doubted. The person who has been helped to make that decision may have decided, because they are a burden on their elderly parents, that they will not inform them. Again, that was the rationale of where I got to on Second Reading, frankly.

I see people with elderly parents, often now in their 70s or 80s, who have cared for that person throughout their life. As the Bill and the Mental Capacity Act are laid out, that person could go to the doctor to say, “I do not want my parents to know. I hear what you say, doctor, but under this provision of the Act”—clause 9 of the Bill—“I am not going to tell them.” Under the Mental Capacity Act, if the doctor had any queries about the capacity of that person to make those decisions, that doctor would have to assist them in making them. Let us be clear that that is what the Mental Capacity Act 2005 provides for, and that is what the code of practice says.