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

Stephen Kinnock Excerpts

Committee stage
Wednesday 19th March 2025 Public Bill Committees

[Jake Richards]

I welcome the amendments tabled by my hon. Friend the Member for Spen Valley. As I think she accepts, given that she tabled the amendments, there is an oddity with the Bill as drafted that has to be fixed, and I think the amendments would do that.

I appreciate that there is some force to the argument of the hon. Member for East Wiltshire. I would be interested to hear what the Minister says, but it seems to me that there is a balancing act between ensuring that medical practitioners and clinicians are working in an environment in which they do not constantly feel the heat of a lawyer’s breath on their neck, and ensuring protections. There is some force to the argument for removing the clause altogether, but on balance I see more force in the argument that we should have more clarity.

I want to raise some more issues that need to be considered in the light of the provision for aspects of civil liability in this process. That is why last night I supported the amendment in the name of my hon. Friend the Member for Ipswich, which was not passed, relating to guidance for doctors in certain circumstances during this process. I raise those points about the standard of care and the duty that doctors and clinicians will be working to throughout the process for the record, and so that the Government and my hon. Friend the Member for Spen Valley can take them forward. I raise those questions not because they are unanswerable—I think they are answerable—but because we need to work out exactly what we are asking our doctors to work to, and what form that guidance comes in. Does it need to be legitimised by Parliament, or can it be undertaken by a Minister?

I do not think I need to expand greatly on the point, but we can all imagine circumstances in which clinicians are compromised in their view of the duty of care that they have to the patient. When this process begins in this jurisdiction, it needs to be clear what that is.

[The Minister for Care (Stephen Kinnock)]

It is a pleasure to serve under your chairship, Mr Dowd. Well done for arriving on time, by the way.

These amendments aim to ensure that, if passed, this legislation will be legally and operationally workable. I will offer a technical, factual explanation and rationale for them. Amendments 501, 502 and 503 replace clause 25(1) and instead provide that the provision of assistance in accordance with the Bill will, of itself, not give rise to civil liabilities in certain circumstances. Those circumstances are where an individual provides assistance in accordance with the Bill, where an individual performs any other function under the Bill in accordance with the Bill, and where an individual assists a person seeking to end their life under the Bill, in connection with the doing of anything under the Bill. Proposed new subsection (1A) would create an exception to the exclusion of civil liabilities, providing that civil liabilities can arise in cases when an act is performed dishonestly or otherwise than in good faith, as well as in cases of negligence. Without this amendment, there is the possibility that clause 25(1) could provide blanket immunity to a person from all civil liabilities, even when they may have been negligent in their actions in providing assistance in accordance with the provisions in the Bill.

[Kim Leadbeater]

I will speak briefly on this issue. An important point was made by my hon. Friend the Member for Rother Valley about the protections that clause 25 and these amendments provide for medical practitioners. I think the clause strikes the right balance, but it is important to remove the blanket immunity. My hon. Friend referred to codes of practice and codes of conduct. We have talked a lot about good medical practice from the General Medical Council, and we have a clause in the Bill on codes of practice. I feel confident in the clause, but I am still having regular meetings with officials about the legal implications of the Bill. I will continue those conversations, but I am happy that the clause as it stands serves the correct purpose.

--- Later in debate ---

[Danny Kruger]

Absolutely; that is what I am doing.

I referenced the debate we had last night, which I hope is within scope, because the suggestion has been either that the Bill insufficiently addresses the need for a regulatory regime for the approval of drugs specifically for the purpose of assisted dying or, as the Government are saying, that the drugs’ existing licences are sufficient for these purposes. Is the Government’s position that there will be no regulator involved and that this will sit entirely with the Minister, as in this clause? If regulators are to be involved, will further legislation be needed?

I will not repeat evidence from the Royal Pharmaceutical Society concerning the legal arrangement, but I will refer to evidence submitted by Máire Stapleton, a pharmacist with more than 30 years’ experience in clinical governance, who made this point:

“Based upon a preliminary review of current published data, it is difficult to see how the regulatory and professional standards for prescribing and dispensing unlicensed drugs can be met.”

There is further evidence to that effect from the Royal Pharmaceutical Society, pharmacists and barristers.

Given that there is so little on the face of the Bill and no guardrails for the use of the power that will be given to the Secretary of State, why is the negative procedure judged appropriate for something of this significance? It cannot be argued that the negative procedure is needed because the amendments might need to be made quickly and frequently—that cannot be the case, because we have not yet authorised the regime. The negative procedure would allow the Secretary of State quite unjustified ability to change these processes without any requirement for a parliamentary debate or vote.

Lord Hermer, the Attorney General, has said that this new Government will take a new approach, considering the

“real need to consider the balance between primary and secondary legislation, which in recent years has weighed too heavily in favour of delegated powers.”

He criticised the previous Government’s

“excessive reliance on delegated powers, Henry VIII clauses, or skeleton legislation,”

which

“upsets the proper balance between Parliament and the executive. This not only strikes at the rule of law values I have already outlined, but also at the cardinal principles of accessibility and legal certainty.

In my view, the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means, in particular, a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards.”

I conclude with this question to the Minister: has she considered the advice of Lord Hermer in coming to a view on the appropriateness of this clause and the way that these powers have been taken? As the Hansard Society notes,

“the Government has an overriding duty of care to the statute book. As such, any powers that may accrue to Ministers because of a Private Member’s Bill must be acceptable to the Government. It must therefore take a view on the powers and their scrutiny”.

Has the sponsor or the Minister consulted with the Royal Pharmaceutical Society on the sufficiency of this power? Has sufficient work been done to look at the workability and operationalisation of this clause? I hope the Committee will join me in supporting these amendments.

[Stephen Kinnock]

It is a great pleasure to serve under your chairship today, Mrs Harris. Amendment 442 would require the Secretary of State to make regulations for the prescribing, dispensing, transporting, storage, handling and disposal of approved substances, including the keeping of records relating to those activities. That differs from the Bill’s current approach, which enables the exercise of a power by the Secretary of State to make such regulations.

In practice, where the Secretary of State makes regulations specifying substances for the purpose of the Bill under clause 20, they will necessarily also make regulations for the prescribing, dispensing and transporting of said substances under clause 28. However, requiring, rather than enabling, the regulations under clause 28 to be made may reduce flexibility in terms of their timing as there is a range of technical issues that may need to be resolved—for example, clinical questions on how an approved substance should be prescribed or dispensed.

Amendment 443 would mean that regulations for the prescribing and dispensing of approved substances could be made only in relation to substances that have already been approved by

“the Medicines and Healthcare products Regulatory Agency and either the National Institute for Clinical Excellence or the All Wales Medicines Strategy Group”.

That may impact the operational delivery of the Bill as the drafting is ambiguous. One possible interpretation is that the amendment may require the approved substances to be licensed by the MHRA specifically for the purpose of assisted dying. That would require additional powers to amend medicines regulations, which are not currently provided for in the Bill. NICE and the All Wales Medicines Strategy Group typically make recommendations only on medicines that have already been proven to be safe and efficacious. They do not approve medicines in the way the amendment implies, and this could infringe upon the role of the MHRA.

--- Later in debate ---

[Naz Shah]

Would the Government’s intention not be to sign this duty over to a regulator?

[Stephen Kinnock]

My understanding is that the amendment would place the duty on a medical practitioner. I am speaking to the purpose and effect of the amendment, which is not about a regulator; it is about a medical practitioner. Does that answer my hon. Friend’s question?

[Naz Shah]

I am not sure, but I will give it more thought.

--- Later in debate ---

[Stephen Kinnock]

Amendment 445 would require that the Secretary of State make regulations about enforcement, including provision of imposing civil penalties, when making regulations for prescribing, dispensing, transporting, storage, handling and disposal of approved substances, including the keeping of records relating to those activities. That would be a change from the current approach in the Bill, which gives a power to the Secretary of State to make such provisions. In practice, where the Secretary of State makes regulations specifying substances under clause 20, they will necessarily make regulations under clause 28 for the prescribing, dispensing and transporting of said substances, and on enforcement, which would include imposing civil penalties.

[Danny Kruger]

Further to the intervention from the hon. Member for Bradford West, I would like to understand whether the Minister envisages an independent regulator of any sort being responsible for overseeing the regime? We currently do not know what that will be—a future Secretary of State will design it—but does he envisage that there will be some sort of regulatory body with that job, and if not the MHRA, who?

[Stephen Kinnock]

We will at some point get to clause 32, which is about the way in which the system will work, specifically with the NHS, and the role of regulation will absolutely be debated in that context. My sense is that it would be best to confront that issue when we debate clauses 32 and 39. Officials are currently working with the promoter of the Bill, my hon. Friend the Member for Spen Valley. We know that her policy intent is for the service to be an integral part of the NHS, but with some flexibility in the way it is delivered; we have briefly touched on that in previous debates. As an integral part of the NHS, it will have to be a regulated service, based on the foundations of the way in which the NHS is regulated more broadly. I think the answer to the hon. Gentleman’s question is basically yes, but the right place to debate it and potentially amend the Bill would be in clauses 32 to 39.

[Danny Kruger]

We look forward to the amendments that the Government are working on, but, as part of that process, does the Minister envisage that there will be amendments to NHS legislation itself?

[The Chair]

Order. We need to discuss the amendment, not speculate about the future.

[Stephen Kinnock]

Thank you, Mrs Harris; you have helped me to answer the hon. Gentleman’s question in a far more pithy and direct way than I could have. I think it is best for us to wait for us to discuss clauses 32 and 39, when we can really get into the meat of the precise issue he raised.

Amendment 521 would change the requirements in clause 28 so that regulations governing the prescribing, dispensing, transporting, storage, handling, disposal and records relating to these activities of approved substances under the Bill must be laid in draft form and approved by resolution in each House of Parliament. This is a change from the current requirement in the Bill that the regulations are subject to the negative procedure. Both procedures are subject to Parliamentary scrutiny. However, the requirement for active debate in both Houses of Parliament as a result of the amendment would extend the timeline to make or change regulations.

Amendment 485 is similar. It would alter the requirement in clause 28 that regulations governing prescribing, dispensing, transporting, storage, handling, disposal and records relating to these activities of approved substances are subject to the affirmative procedure, instead of the negative procedure as drafted. Similar to the change of procedure proposed by amendment 521, the affirmative procedure would extend the timeline to make or change regulations.

That is the end of my observations. I hope they were helpful to the Committee.

[Kim Leadbeater]

I will speak briefly about amendments 485 and 521, on which I will respectfully disagree—not for the first time—with the hon. Member for East Wiltshire. I believe the negative procedure is perfectly adequate in matters of this kind. We had a similar debate the other day.

I will also speak to amendments 442 and 445 in the name of my hon. Friend the Member for York Central. Although I take on board the comments of the Minister about time pressures, I am minded to support both these amendments. Regulations are important and I have no problem with placing the duty on the Secretary of State in those two instances.

--- Later in debate ---

[Danny Kruger]

I want to quickly explain that my amendment 523 is consequential on amendment 447, but there is drafting issue. I will not go into the details but, if amendment 447 is made, as I understand it will be, my amendment 523 is not necessary. I would be grateful for the Minister’s guidance: if he has been advised by parliamentary counsel that the clause as amended by amendment 447 is okay and there is no need for amendment 523, I do not propose to press it to a vote.

[Stephen Kinnock]

This group of amendments relates to clause 30 of the Bill and the codes of practice that may be issued by the Secretary of State.

As the Bill is drafted, the Secretary of State may issue one or more codes of practice in connection with arrangements pertinent to the assisted dying process. Amendment 447 requires the Secretary of State to issue such codes, substituting “must” for “may”. As such, codes of practice would need to be issued for all matters listed in clause 30(1).

Amendment 394 has the effect of broadening to Secretary of State’s power to issue codes of practice, explicitly enabling the Secretary of State to issue guidance in connection with

“information and support to persons with learning disabilities who are eligible to request assistance”

under the Bill, including information and support about the role of advocates. I note that under the Equality Act 2010, health providers are already under a duty to make reasonable adjustments in the provision of services, including for persons with a learning disability. That duty includes taking steps to provide information, including on what support services are available.

As drafted, clause 30(1)(c) provides that the Secretary of State may issue codes of practice on

“the arrangements for ensuring effective communication in connection with the provision of assistance…including the use of interpreters”.

Amendment 448 provides that, if the Secretary of State issues codes of practice that include the use of interpreters, those interpreters should be “registered and qualified”. The amendment would limit those who are able to translate to only those who are registered and have a recognised qualification. However, the amendment does not state who or what such a registration would be with, or what would constitute a recognised and appropriate level of qualification.

Amendment 534 adds to the list of codes of practice that the Secretary of State may issue. The addition is a code of practice on the acceptable forms of proof of identity when a person makes a first declaration. Clause 6(3) of the Bill already provides a regulation-making power that sets out the acceptable forms of proof of identity. Amendment 534 would give the Secretary of State a power to make codes of practice about how someone can ensure they are compliant with the requirements set out under clause 6(3). The amendment has little practical effect, because clause 30(1)(e) already provides a wide power for issuing codes of practice, providing that the Secretary of State may issue codes of practice on

“such other matters relating to the operation of this Act as the Secretary of State considers appropriate.”

Amendment 523 allows the Secretary of State to issue further codes of practice at his discretion, should they not be covered by the preceding subsection (1) of this clause. The Bill’s promoter has said she is minded to support amendment 447, and the hon. Member for East Wiltshire asks whether, if amendment 447 is incorporated into the Bill, that renders amendment 523 unnecessary or surplus to requirements. I am not entirely sure, so I will quickly check while the Bill’s promoter is making her remarks and come back to him immediately.

[Kim Leadbeater]

I thought we were going to get a full house with this group, but let us have a look. I am minded to support amendment 447, as I have previously said. I will wait to hear from the Minister the impact that that will have on amendment 523.

[Stephen Kinnock]

I can confirm that amendment 523 is a helpful amendment as 447 is incorporated, so that is all fine—we are good with that.

[Kim Leadbeater]

That is very helpful indeed. In that case I am very pleased to support amendment 523 in the name of the hon. Member for East Wiltshire as well. I am also minded to support amendment 394 in the name of my hon. Friend the Member for Bexleyheath and Crayford, which I think is very sensible, like his other amendments that I have supported. I am not sure that amendment 534 in the name of my hon. Friend the Member for Ipswich is entirely necessary, but I fully understand the sentiment and therefore I am minded to support that amendment as well.

That brings me on to the final amendment, 448. I wanted to support this amendment, but I have taken on board the Minister’s comments on the lack of clarity about what it means to be registered and qualified. As such, I cannot support that amendment this evening, but I think we could look at coming up with something on Report that would achieve the objective that my hon. Friend the Member for York Central intended.

Amendment 447 agreed to.

Amendment made: 394, in clause 30, page 18, line 24, at end insert—

“(ba) the provision of information and support to persons with learning disabilities who are eligible to request assistance to end their own life under this Act, including the role of advocates for such persons;”—(Daniel Francis.)

Amendment made: 416, in clause 30, page 18, line 25, leave out paragraph (c).—(Jack Abbott.)

This amendment is linked to Amendment 417.

Amendment made: 430, in clause 30, page 18, line 30, at end insert—

“(da) responding to unexpected complications that arise in relation to the administration of the approved substance under section 18, including when the procedure fails;”.—(Daniel Francis.)

--- Later in debate ---

[Stephen Kinnock]

Amendment 517 relates to new clause 25, which I will come to next. The amendment would make provision for the Secretary of State to issue a code of practice regarding arrangements for a qualifying person to receive the support of an independent advocate, as set out under new clause 25. The new clause would require the Secretary of State to make regulations about the appointment of independent advocates.

The role of the independent advocate would be to provide support and advocacy to a qualifying person seeking to understand options around end-of-life care, including the possibility of requesting access to assisted dying. A qualifying person is defined in the new clause as someone who has a learning disability, a mental disorder as defined under the Mental Health Act 1983, or autism; or who might experience substantial difficulty in understanding the processes or communicating their views, wishes or feelings; or who meets criteria specified by the Secretary of State in regulations.

Although the new clause would require the Secretary of State to make regulations about the appointment of independent advocates, there is discretion as to what those regulations should include. The new clause sets out a non-exhaustive list of the things that the regulations may provide. The effect of this is that the new clause leaves open who would be obliged to ensure that an independent advocate is present and the precise nature of the obligations around their appointment. It is also unclear how a person would be determined to be a qualifying person, as the definition is quite broad and encompasses a wide range of people with varying support and advocacy needs.

Finally, although the new clause would enable provisions to be made about payments of independent advocates, it is not clear who would make these payments or how they would be funded.

I hope those observations were helpful to the Committee.

[Kim Leadbeater]

My hon. Friend the hon. Member for Penistone and Stocksbridge has made a powerful and passionate case for the provision of independent advocates, and, as always, has done an outstanding job of advocating for people with disabilities, including learning disabilities, mental disorders and autism, as she has done throughout this entire process.

It is essential that anybody considering the choice at the end of life made possible by this Bill should fully understand the nature and consequences of any decision they may make. These amendments have made me reflect on comments—I think made by the hon. Member for East Wiltshire a few weeks ago—about the purpose of the Bill. He proposed that the Bill is either about choice and autonomy or it is about safeguards. Actually, this group presents very clear evidence that it is and must be about both, and I hope he can support the amendments.

I take on board the Minister’s comments. I heard an element of caution from him, and I am happy to work with the Government and my hon. Friend the Member for Penistone and Stocksbridge if there are any further requirements prior to Report stage, but I am very happy to support the amendment and the new clause.

--- Later in debate ---

[Danny Kruger]

The point I am making is that we are suggesting that some future Secretary of State, in a different Government of which we know nothing, might decide to issue codes of practice that will determine how this process is delivered, but I will leave that point.

We must address the weak status of these codes of practice. I regret that they are being left in this weak form. At a minimum level, we should require that they are properly complied with. This cannot be remedied after the Bill has passed. No matter how strong the language in the codes of practice, that language cannot override or change the nature of a statutory duty. Any enhanced duty has to come from a source external to the document being considered itself—namely, the statute. I ask the hon. Member for Spen Valley, why not insist that practitioners comply with the relevant provisions of the code?

[Stephen Kinnock]

I will speak on amendment 524, in the name of the hon. Member for East Wiltshire. As the Bill stands, a person is required to “have regard to” any codes of practice issued by the Secretary of State when performing a function under the Bill. Amendment 524 would mean that individuals are instead required to “comply with” the codes of practice issued. That could limit someone to doing only what is specified in the code, rather than allowing them to exercise their professional discretion to perform the function in the most appropriate way, having given regard to the code. It is also unclear from the amendment who would monitor or enforce compliance with the codes. Codes of practice are normally detailed practical guidance on how to comply with legal obligations, and are generally not legally binding.

I hope those observations are helpful to the Committee.

[Kim Leadbeater]

I understand the sentiment behind the amendment, but as the Minister said, codes of practice serve a particular purpose. Everyone has to comply with and abide by the law, but codes of practice are there to assist in the exercise of a person’s professional judgment. I worry about losing the ability for professionally trained and regulated people to use their professional discretion and have the flexibility they need to do their jobs well, if we accepted this amendment.

I think the hon. Member for East Wiltshire answered his own question in his description of what a code of practice does. Although the amendment comes from a good place, I cannot support it. We need to have flexibility, and trust in our professionals to do their job.

--- Later in debate ---

[Daniel Francis]

These amendments refer to the oral evidence we received from Mencap. They would add provisions to ensure those consulted in the preparation of the chief medical officer’s guidance include persons with learning disabilities. I commend the amendments to the Committee.

[Stephen Kinnock]

Clause 31(2) provides that, before preparing guidance under the clause, the relevant CMO must consult such persons as they consider appropriate. Amendment 395 would add a duty for the CMO to consult persons with learning disabilities before preparing such guidance. That may call into question why other specific groups are not expressly listed.

Amendment 396 would include persons with learning disabilities as an additional category of people to which the CMOs must have regard in relation to preparing practical and accessible information, advice and guidance under clause 31. The effect would be to include persons with learning disabilities as a specific category of people in addition to the listed categories. This could imply that those with learning disabilities would not already be included in one of the categories already listed, namely

“persons requesting or considering requesting assistance to end their own lives…next of kin and families of such persons”

and “the general public.”

Clause 31 sets out a duty on the chief medical officers for England and Wales to publish public-facing guidance relating to the operation of the legislation. It has rightly been a matter for the Committee to determine amendments to the clause, and the Government will respect the will of Parliament. As Members will know, the Government have been working with the Bill’s promoter, my hon. Friend the Member for Spen Valley, on amendments to ensure that, if passed, the legislation will be legally robust and workable.

On this clause, we intend to support the development of further such technical amendments on Report. Where amendments are required to clarify the obligations in relation to the preparation of guidance, we will work with the promoter to ensure that MPs receive good notice to give them adequate time for consideration. I hope those observations were helpful for the Committee.

[Kim Leadbeater]

I briefly show my support for these amendments that have been tabled by my hon. Friend the Member for Bexleyheath and Crayford.

Amendment 395 agreed to.

Amendment made: 396, in clause 31, page 19, line 14, at end insert—

“(ba) persons with learning disabilities;”—(Daniel Francis.)

Clause 31, as amended, ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Bambos Charalambous.)