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

Stephen Kinnock Excerpts

Committee stage
Wednesday 5th March 2025 Public Bill Committees

[The Minister for Care (Stephen Kinnock)]

It is a pleasure to serve under your chairship, Mrs Harris. The amendments have been tabled by my hon. Friend the Member for Spen Valley in consultation with the Government. This reflects the Government’s role in ensuring that the Bill is legally robust and workable. The amendments relate to the regulation-making powers and bring together various provisions about procedure and requirements for regulations and consultation.

I will address the amendments in two groups, starting with new clause 8 and its consequential amendments 187, 199 and 211. The new clause contains a duty to consult before making regulations; it is intended to consolidate three subsections that contain duties to consult before making regulations, as set out in the original draft of the Bill under clauses 5, 8 and 19. In addition to retaining the existing duties to consult before making regulations in clauses 5, 8 and 19, the new clause requires the Secretary of State to consult before making regulations under clauses 7, 13 and 21, and brings together these requirements under a single duty.

The new clause would place an additional requirement on the Secretary of State to consult the Equality and Human Rights Commission, as well as such other persons that the Secretary of State considers appropriate. The latter group must include persons with expertise in matters relating to whether persons have capacity or have been coerced, unless it would not be appropriate to consult such persons.

I turn to amendments 233, 188, 192, 215 to 219, 222, 225, 226, 212, 213, 200 and 206. There are provisions throughout the Bill, as it is currently drafted, about the procedure for making regulations. All regulations, except for those made under clause 5(3)(a), clause 8(6)(a), clause 30(3) and clause 32, are required to be made under the negative procedure. Amendment 233 would bring together the various provisions about the procedure for making regulations into a single clause, clause 39, thereby removing repetition in the Bill. The amendment seeks to achieve that by replacing subsections (3) to (5) in clause 39 with the following:

“(5A) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) regulations under section 5(3A), 8(6A), 30(3) or 32 unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(5B) Any other statutory instrument made by the Secretary of State containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.”

The amendment would require that any regulations made under those provisions must be laid before, and approved by, a resolution of both Houses of Parliament. This procedure, the draft affirmative procedure, will apply to regulations setting the training, qualifications and experience of both the co-ordinating and the independent doctors, establishing a code of practice and securing arrangements for the provision of assisted dying under the Act. Any other statutory instrument made under powers within the Bill will remain subject to the negative procedure.

As I have said, the Government have taken a neutral position on the substantive policy questions. These comments relate to the legal and regulatory side of the Bill, and I hope that my observations are useful to the Committee.

[Kim Leadbeater]

I have nothing further to add.

Amendment 187 agreed to.

Amendment made: 20, in clause 5, page 3, line 25, at end insert—

“(4A) Regulations under subsection (3)(a) must specify that training in respect of domestic abuse, including coercive control and financial abuse is mandatory.”—(Daniel Francis.)

This amendment would require the registered medical practitioner acting as the coordinating doctor to have undertaken training on domestic abuse, including coercive control and financial abuse.

Amendment made: 188, in clause 5, page 3, line 28, leave out subsection (6).—(Kim Leadbeater.)

This amendment is consequential on Amendment 233, which contains a single set of provisions about the procedure for regulations under the Bill.

Clause 5, as amended, ordered to stand part of the Bill.

Clause 6

Requirement for proof of identity

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The Bill does that overall. It takes us clearly through a journey from the initial discussion to the final act. There is a chronology to the process, naturally enough, and the Bill reflects that. I am therefore unclear why we have this amendment 419, which I think is essential and important—I wish it were stronger, as I said earlier—but I am unclear why it is here. Why is it a subsection in a clause dealing with regulations for forms of identity? I am concerned about the amendment and why it is in the place it is. I will be grateful for clarification from Ministers or the promoter about why it is there.

[Stephen Kinnock]

This group of amendments refines the requirements related to the first declaration, clarifying the witnessing process, identity verification and regulatory obligations. I will take the amendments in turn.

In executing our duties to ensure that the legislation, if passed, is legally robust and workable, in this group the Government have worked with my hon. Friend the Member for Spen Valley on amendments 189 to 191 and 419. Amendment 189 would clarify the requirement for proof of identity when making a first declaration. It would adjust the wording to make it clear that proof of identity must be provided before a person signs a declaration, ensuring no ambiguity about when the requirement applies.

As with amendment 189, amendment 190 clarifies the requirement for proof of identity when making a first declaration. This amendment would make it clear that a person must provide two forms of proof of identity before signing the declaration, rather than simply at the same time. That ensures that both the co-ordinating doctor and the witness have received the necessary proof before the declaration is signed.

Amendment 191 ensures that the co-ordinating doctor can witness the first declaration only if they are satisfied that the person has provided two forms of proof of identity. The doctor must therefore first be satisfied that the required proof has been given to them and to the witness before proceeding with witnessing the signing of the declaration.

Amendment 419 requires that, before witnessing the first declaration, the co-ordinating doctor must be satisfied that a preliminary discussion has taken place, whether that was conducted by the co-ordinating doctor or another registered medical practitioner. The co-ordinating doctor must also have made or seen a written record of the preliminary discussion.

Amendment 291 adds to the requirement around proof of identity when making a first declaration. It requires that one of the forms of ID provided to the co-ordinating doctor and witness be photographic. The person must also provide proof of residence at this stage of the process. I note we would expect this type of issue to be considered by the Secretary of State when making regulations about forms of proof of identity that are acceptable, as already provided for in clause 6(3). Requiring a person to provide proof that they have been resident in the UK for at least 12 months appears to impose a different residency requirement to other parts of the Bill. Specifically, “being resident” is a looser test than being “ordinarily resident”, in clause 1, and “in the UK” is broader than “in England and Wales”, also in clause 1. In consequence, our assessment is that this amendment may make the Bill less legally coherent.

[Rebecca Paul (Reigate) (Con)]

I want to raise a question on photo ID. My apologies, I probably should have spoken sooner. Thinking this through as we have debated, I think photographic ID is important to avoid mistaken identity and fraud, and to make sure everything works as it should. With respect to this process, would the Minister normally expect photographic ID to be an acceptable or appropriate form of identification?

[Stephen Kinnock]

Yes, I believe so. Photographic ID would be the standard to which we would aspire. I do not know whether there was anything else under her question? I think the answer is yes.

[Sojan Joseph (Ashford) (Lab)]

Could the Minister clarify whether the requirement for one year of residency in the UK means that a foreign citizen studying at a university here would be able to consider assisted dying?

[Stephen Kinnock]

I thank my hon. Friend for that intervention. We have the term “ordinarily resident” in the UK in clause 1. Obviously if the Committee sees fit to accept the amendment it would change to “resident”, which is a looser term. This matter would also be one for the Home Office, as the custodian of our rules and regulations on immigration, but my sense would be that if we stick with “ordinarily resident” then someone who is not ordinarily resident in the United Kingdom would not qualify for assisted dying.

As the Bill currently stands, the Secretary of State has the power but not the obligation to set these requirements in regulations. This amendment would remove this discretion and require the Secretary of State to specify what forms of ID must be provided.

Amendment 293 ensures that regulations on acceptable forms of proof of identify must be approved by both Houses of Parliament before coming into force, by requiring these regulations to follow the affirmative rather than the negative procedure. As I said earlier, the Government’s position is neutral, but I hope my observations—

[Kim Leadbeater]

This is a thought based on the comments by the hon. Member for Reigate. The issue of photographic ID is worth giving consideration. Photo ID is used in multiple settings for different reasons. My slight concern is that some of the people we are thinking about with this Bill would be older and I think of some of my own family members who no longer have driving licences, passports or potentially any form of photographic ID. I would be concerned this could be a barrier for terminally ill people. Considering we are making this a robust process, which I totally agree with, I would be concerned that might present an issue.

[The Chair]

Order. I have asked for interventions to be short and not speeches.

[Stephen Kinnock]

I thank my hon. Friend for that intervention. She makes a very good point. It is definitely something that needs to be explored, to ensure that people are not being excluded for the reasons she set out. It is a different example, but when voter ID was introduced a special ID card was created by the Government to cater for exactly the situation she set out. We have to find a way of ensuring that people are not excluded because of that technicality. She makes a valid point.

[Kit Malthouse (North West Hampshire) (Con)]

Scanning back through my experience of the health service, I do not remember ever having to show my ID, whatever the procedure or medical service. I do not remember showing ID to witness the birth of my children or my wife having to show her ID. I am not sure that is common in the health service. Why would we introduce it for this? I can go in and have a heart bypass and not be asked to show my ID. My assumption is that often people will have been—

[The Chair]

Order. I have asked for interventions to be short.

[Stephen Kinnock]

This section of the Bill covers the issue of ID and says that proof of ID is required. I am simply responding to the requirements of the Bill. I am more than happy to have a debate about ID cards and all sorts of other issues more broadly—

[The Chair]

On another day.

[Stephen Kinnock]

I look forward to having that debate on another day. Unless other colleagues want to intervene, I will now sit down, to the delight of the Chair.

[The Chair]

I call Kim Leadbeater, who now has the opportunity to say anything she likes.

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[Sojan Joseph]

I agree. It highlights the point that the impact assessment will be very important here, to see from where the resources are being pulled to provide this. The Committee should acknowledge amendment 296.

[Stephen Kinnock]

These amendments introduce requirements on the timing within which the co-ordinating doctor must carry out a first assessment once the first declaration is made by a person. I will turn first to amendment 296. As currently drafted, clause 7(1) requires that the co-ordinating doctor must carry out a first assessment

“as soon as reasonably practicable”

after a person has made a first declaration. Amendment 296 would require that after the first declaration is made, the co-ordinating doctor must arrange a mutually convenient time and date for the first assessment to take place, but it removes the stipulation that the assessment must be carried out as soon as reasonably practicable. The amendment would also require the date and time agreed not to jeopardise the care of other patients. The effect of the amendment may be to lengthen the period between the first declaration and the first assessment, in some cases.

Amendments 127 to 141 seek to ensure that the assessments, declarations and statements made throughout the Bill are finalised and recorded within 10 working days of being started. The amendments achieve this by inserting the term “within 10 working days” in place of

“as soon as reasonably practicable”

in clauses 7, 8, 16, 17, 21 and 22. This would put in place a time-bound limit that the medical practitioner must adhere to when carrying out the first and second assessments, when recording information in medical records at various stages, including the High Court declaration, and when recording other matters in medical records.

Our assessment suggests that in most circumstances, although it would depend on the facts of a particular case, the requirement to do an action as soon as practicable would generally amount to a requirement to do the action sooner than in 10 working days’ time. In terms of the operational effects, having a set timeline may give greater certainty to individuals seeking assistance. However, it may limit doctors’ discretion to set the timeline based around the patient’s wishes. These are matters for the Committee to weigh up and consider.

[Kim Leadbeater]

That has been a very useful discussion. I have nothing to add.

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[Dr Opher]

I am grateful that you have not intervened as well, Mrs Harris. You did say that I am allowed to call you “you”.

I will finish on this serious point. Amendment 6 has much power, and we would all agree that if the first or second doctor has doubts, they must—not may—refer to a psychiatrist. Expecting every patient who requests assisted death to have a psychological or psychiatric assessment is simply not necessary, and it would not improve the safety of this Bill.

[Stephen Kinnock]

rose—

[Lewis Atkinson (Sunderland Central) (Lab)]

rose—

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[The Chair]

I call the Minister.

[Stephen Kinnock]

Thank you so much, Mrs Harris—I will try again.

Although it is up to Parliament to pass or reject this Bill, the Government remain committed to ensuring its legal robustness and workability. For that reason, we have worked closely with my hon. Friend the Member for Spen Valley, and we have mutually agreed some amendments, including amendments 370 and 202. This group of amendments relates to the assessment process for determining a person’s ability to make a first declaration. I will take them in turn.

As the Bill stands, the co-ordinating doctor is responsible for ascertaining whether, in their opinion, a person applying for assistance to end their own life has met the eligibility criteria in clause 7(2), as part of the first doctor’s assessment. Amendment 347 would change the co-ordinating doctor’s role from ascertaining whether, in their opinion, the criteria in clause 7(2) are met to instead ensuring that steps have been taken to confirm that those criteria are met. Its practical effect would be that the co-ordinating doctor could rely on the assessment of other, non-specified, persons to confirm that the eligibility criteria have been met.

Amendment 294 provides that the co-ordinating doctor, in ascertaining whether, in their opinion, the criteria in clause 7(2) are met, would be required to base that assessment on evidence that has been provided. It does not specify who would provide the evidence, what types of evidence would be considered acceptable or whether the co-ordinating doctor could disregard evidence if they consider it appropriate to do so. It could create uncertainty for the co-ordinating doctor in carrying out the first assessment.

Amendment 14 would require the co-ordinating doctor, when making the first assessment, to take into account an additional report. The report would be made by a qualified person and would cover duress and/or coercion, communication needs and capacity. It would be informed by an interview between the specialist and the person applying for assistance to end their own life. The specialist must have expertise in psychiatry or other qualifications set out in regulations. There are various exclusions aimed at avoiding conflicts of interest.

Amendment 15 would similarly require that the independent doctor, in making the second doctor’s assessment, takes the report into account. Amendments 16 to 19 are consequential to amendment 14.

In practice, the amendments would represent a change at the medical assessment stage from requiring two professionals to requiring three. They also represent a departure from usual practice for professionals applying the Mental Capacity Act 2005. The requirement to interview the person and write a report that must, in all cases, address capacity may amount to an assessment of capacity in itself. That would undermine a core principle of the Mental Capacity Act, which is the presumption of capacity.

In addition, the test of capacity set out in the amendments is more limited than the test of capacity under the Mental Capacity Act. It covers only capacity to understand information, not capacity to retain, use or weigh it.

Amendment 284 would require the co-ordinating and independent doctors to, in all cases, refer the person seeking assisted dying to a psychiatrist for an assessment of their mental capacity. Although that is set out in the explanatory note from my hon. Friend the Member for York Central, the amendment does not specify the type of assessment that is required. Putting aside specification of the type of assessment, the overall intention of the amendment is that, in order to be eligible for assisted dying, a capacity assessment would always be required, irrespective of whether there is a proper reason to doubt that the person has capacity. That would differ from the Mental Capacity Act, under which capacity is presumed unless it is established that the person lacks it.

Amendment 6 would require the assessing doctor to refer all cases where there is doubt about mental capacity for an assessment by a doctor who is an expert in psychiatry. This is a power, as currently drafted, but the amendment would make it a duty. Requiring, rather than permitting, the assessing doctor to make a referral when capacity is in doubt would remove their discretion on whether to refer a person to a doctor who is an expert in psychiatry. Instead, it would be required in all cases where there is doubt about capacity.

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[Stephen Kinnock]

The purpose of these amendments is to prevent someone with an impairment of judgment arising from a mental disorder or other condition from being able to access assisted dying. Impairment of judgment is an uncertain legal concept that is far wider than the current test of capacity, which requires that the person must be unable to make a specific decision, and “impairment of judgment” is not defined in the amendment.

Under the Mental Capacity Act 2005, the inability to make a decision must be directly caused by

“an impairment of, or a disturbance in the functioning of, the mind or brain.”

However, under the amendments, the requirement is merely that the inability to decide must arise from such an impairment or disturbance, making the threshold significantly broader. The meaning of other conditions outside of mental disorder is also unclear. For instance, it might include a physical condition, and it is unclear how this would interact with the Bill’s provisions on terminal illness. I hope those observations were helpful for the Committee.

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[Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)]

It is a pleasure to serve under your leadership, Mrs Harris.

I will speak to this octet of amendments and set out why I cannot support them. In my view, they are a classic example of legislative embroidery. If we wanted a better example, we could not find one. Sadly, they would achieve nothing but add a great deal of confusion to the situation.

Throughout the Bill, a clear set of criteria must be fulfilled in order to move from one stage of the process to another. To lay on, additionally, a frankly woolly and ill-defined legal test that has not been set out in in this legislation and that overrides those criteria, without any reasoning to underpin it or any sense of purpose behind it, is simply confusing. The test would make the Bill less operable in reality, and it undermines everything that comes before it—there is no purpose to having criteria that we have to move through if we are then to say, “Actually, that is null and void, because I have a sense that I am just not comfortable with it.” If one is not comfortable with one stage of the criteria, that is enough for it to fall or to be referred to someone else—for example, to a capacity assessment, as has been suggested. The amendment is legal nonsense. I see where it is coming from, but it is legal nonsense in how it is drafted, and it does not assist in making a more meaningful or operable Bill. Therefore, I cannot support it.

[Stephen Kinnock]

The amendments seek to ensure that an individual requesting assistance to die will not be able to do so if there is a real risk that the eligibility criteria have not been met.

The Bill provides in clauses 7, 8, 12, 13 and 18 that where the assessing doctor or court is satisfied that, in their opinion, the eligibility criteria that they are charged with assessing have been satisfied, they must complete the next relevant step required by the Bill. If, however, the assessing doctor or court are not satisfied that the eligibility criteria that they are charged with assessing have been met, they must not take the next steps set out under the Bill.

Our assessment is that, as drafted, this group of amendments could create uncertainty as to what the assessing doctors are required to assess. The amendment would add a separate, potentially overlapping requirement on the assessing doctors and the court to assess whether there were no real risk. That could create uncertainty for the assessing doctors as to what is additionally required. I hope those observations were helpful to the Committee.

[Kim Leadbeater]

I have nothing to add, Mrs Harris.

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[The Chair]

I call Steve Kinnock—sorry, I meant Minister Kinnock; he is Steve to his friends.

[Stephen Kinnock]

If I am still your friend by the end of this Committee, I will be absolutely amazed.

[The Chair]

Yes, we need to talk.

[Stephen Kinnock]

Under amendment 56, the second independent doctor would be required to assess whether the person seeking assisted dying would be liable for detention under the Mental Health Act 1983. If they are liable to be detained, the necessary statement cannot be made for the assisted dying process to continue. Assessment under the Mental Health Act requires consideration of someone’s mental disorder and the risk of harm they present to themselves or others if they are not admitted and/or treated for their mental disorder.

Someone can be detained under the Mental Health Act both with and without capacity. Many people could be considered liable to be detained, but would not actually be detained if, for example, they could receive treatment for their mental disorder in the community. Members should be aware that the Mental Health Bill before Parliament, which will soon leave the Lords and come to this place, includes plans to strengthen and clarify the criteria for detention.

Amendment 57 would require the independent doctor to undertake the second assessment jointly with the co-ordinating doctor. If they are unable to, they would be required to confer before completing the assessment. In the Bill as currently drafted, the second assessment is intended to be conducted independently of the first.

I now turn to the famous amendment 1. As the Bill is currently drafted, the second doctor, known as the independent doctor, must be a “registered medical practitioner” who

“has such training, qualifications and experience as the Secretary of State may by regulations specify”.

The amendment intends to make it a requirement that the second assessment is conducted by

“a registered medical practitioner who is registered in the specialism of psychiatry”.

Operationally, focusing on one medical specialty may have workforce implications that the Government would need to work through, should this Bill pass with that amendment.

Amendment 197, along with amendment 198, place

“a duty on the Secretary of State to make regulations about the training, qualifications and experience required in order to act as the independent doctor.”

The Government have worked with my hon. Friend the Member for Spen Valley on these amendments to ensure that the legislation is robust and workable. Amendment 198 specifies:

“The regulations must include training about…assessing capacity”

and

“assessing whether a person has been coerced or pressured by any other person.”

Under amendment 58, the second independent doctor would have to be an approved medical practitioner under section 12 of the Mental Health Act. A section 12 -approved doctor is

“a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder”.

Their role is to make a medical recommendation, which is part of the process of determining whether someone is liable to be detained under the Act. Section 12-approved doctors are also eligible to carry out mental health assessments as part of the deprivation of liberty safeguards under the Mental Capacity Act. The objective of the mental health assessment is to ensure that the person is medically diagnosed as being “of unsound mind” and so comes within the scope of article 5 of the European convention on human rights, the right to liberty.

The purpose of amendment 428 is to impose an obligation to take all reasonable steps to ensure that the independent doctor is proficient in the Welsh language, if services or functions in the Bill are to be provided to an individual in Welsh in Wales. This mirrors amendment 427, which we have already debated. The amendment does not make clear who is obliged to ensure that these steps are taken or who will assess and enforce whether “fluent proficiency” is met. This may reduce the pool of registered medical practitioners able to carry out the function of an independent doctor under the Bill.

It may be helpful to note again that, regardless of this amendment, under the Welsh Language (Wales) Measure 2011, the NHS in Wales has a statutory duty to deliver its services to the public in both Welsh and English. That legislation gives the Welsh language official status in Wales, and it states that individuals in Wales

“should be able to live their lives through the medium of the Welsh language if they choose to do so.”

The Welsh Government’s active offer for health is intended to support all staff across NHS Wales to provide a service in Welsh for patients without them having to ask for it. Of course, I will add that we have agreed to have further discussions on these points with the right hon. Member for Dwyfor Meirionnydd, and I look forward to them.

Amendment 21 would require that a registered medical practitioner could act as an independent doctor only if they have undertaken training on identifying domestic abuse. Should this amendment be accepted, it would require setting up training mechanisms to equip registered medical practitioners who want to act as independent doctors with the knowledge and skills needed to identify domestic abuse, including coercive control and financial abuse. I hope those observations were helpful for the Committee.

[Kim Leadbeater]

I will not test the patience of the Committee by repeating the Minister’s comments on amendments 197 and 198, but he is absolutely right that they relate to the duty imposed on the Secretary of State to make regulations about the training, qualifications and experience required to act as the independent doctor. I hope that Committee members can support them.

Amendment 21 was tabled by my hon. Friend the Member for Lowestoft, and further to my comments this morning on the very similar amendment 20, I am very pleased to support amendment 21. We have spoken a lot about the training requirements for the provisions of the Bill, and I firmly believe that we have to set ourselves the very high standard of having the best training that we possibly can for medical practitioners involved in the processes set out in the legislation. It is vital because only those medical practitioners who have chosen to undergo such training would be allowed to play the role of assessing doctors.

We have already discussed many of the components that will be required in that training, but it must include assessing capacity and detecting coercion or pressure, which is in line with this amendment, so I am very pleased to support it in that regard. Doctors must have appropriate qualifications and experience to ensure that those seeking assistance under the legislation are in the best possible hands throughout.

I also welcome the comments made by my hon. Friend the Member for Banbury about the wider benefits of such training, which is a really important point to make. It feeds into the wider benefits that there would be for not just the health service but society as a whole. It also feeds into the work that is being done by the Home Office and my hon. Friend the Member for Birmingham Yardley (Jess Phillips), who is the Minister for Safeguarding and Violence Against Women and Girls—I just had to google the fancy title that she goes by nowadays. There is a broader conversation to be had about society and the role of training for coercive control, financial abuse and domestic abuse. I support amendment 21, along with my amendments 197 and 198.

Amendment 56 negatived.