Terminally Ill Adults (End of Life) Bill
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Lord Kamall (Con)
As I set out last week and will repeat if noble Lords will forgive me, I completely agree with what the Government Chief Whip said about noble Lords ensuring that they speak to the amendments and do not give Second Reading speeches, but, at the same time, I think it is important that all noble Lords who want to speak to an amendment are given the opportunity to do so.
I thank the noble Baroness, Lady Finlay of Llandaff, for her amendment in this group. It seeks to ensure that someone who currently is or has recently been deprived of their liberty will not be eligible under the Act. This amendment refers to the Mental Capacity Act 2005, which is also the Act underpinning capacity for the purposes of this Bill. I appreciate the underlying logic behind the amendment, which has opened up a valuable discussion of who exactly should have access to assisted dying services. I am sure that all noble Lords would agree, whatever their position, that there should be robust provisions and safeguards in the Bill and that it should be available only to those who are suffering from terminal illnesses who are of sound mind, so that we do not inadvertently open it up to those with issues related to their capacity.
I am also grateful to the noble Baroness, Lady Berger, for her contribution in place of the noble Baroness, Lady Keeley. It is very important that, given the backlog in the system, not just those who have DoLS but those who have made an application for DoLS are deemed not to have capacity when seeking to end their lives. It would be very interesting to hear the Government’s perspective on this and that of the noble and learned Lord.
These questions all fundamentally ask whether the Bill is right to use the Mental Capacity Act 2005 as the basis for defining capacity. I am very grateful to the noble and learned Lord, Lord Falconer of Thoroton, for offering to meet those who have tabled these amendments. That is very constructive and helpful and should be acknowledged. I also look forward to hearing the noble and learned Lord’s responses to some of the issues that have been raised.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am grateful to noble Lords for their contributions on this group. To echo the comments of my noble friend the Chief Whip, the Government remain neutral on the principle of assisted dying and on the passage of this Bill. Whether the law in this area should change is a matter for Parliament. As before, any comments that I make will focus on amendments where the Government have major legal, technical or operational workability concerns.
This group relates to deprivation of liberty and eligibility for seeking an assisted death. I thank the noble Baroness, Lady Finlay, and my noble friend Baroness Keeley for tabling the amendments in this group. Amendments 16 and 114, tabled by the noble Baroness, Lady Finlay, seek to prevent individuals who have been deprived of their liberty within the last 12 months under the Mental Capacity Act being eligible for an assisted death. In the case of Amendments 16A and 114A, tabled by my noble friend Lady Keeley, someone would be ineligible as a result of an application for deprivation of liberty having been made, irrespective of the outcome of that application.
Noble Lords may wish to consider that the amendments would introduce a departure from the Mental Capacity Act framework by linking a lack of capacity in one area—capacity to consent to care and treatment arrangements that amount to confinement—to lack of capacity in another area, that being capacity to make the decision to end one’s life. Amendments 16A and 114A go further and would make a person ineligible on the basis that only an application for deprivation of liberty had been made. This may result in a situation where the application was unwarranted, but that person would still be ineligible for assisted death.
Regarding the European Convention on Human Rights—
Lord Scriven (LD)
I want to ask what the Government’s view is. This actually changes the whole basis of the Mental Capacity Act. The Mental Capacity Act concerns existing capacity. These amendments move into retrospective or future capacity, which is completely incompatible with the Mental Capacity Act. Do the Government have any views about that significant change of capacity and the test of the capacity of an individual?
Baroness Merron (Lab)
I hope that the comments I have made already indicate where we are concerned, rather than going into further areas, but I would be very happy to look at the noble Lord’s point.
I also wish to raise points relating to the European Convention on Human Rights. As before, these are potential risks that I am raising to inform noble Lords’ decision-making, but I wish to be clear that the underlying policies are rightly a matter for Parliament. Noble Lords may wish to note the requirement for an objective, proportionate and reasonable justification to treat those who have previously lacked capacity in a different context differently from others who have not. Noble Lords may also wish to consider whether there is justification for different treatment where an application for deprivation of liberty has been made, but not necessarily completed or approved. In the absence of justifications that are sufficient to persuade a court, the amendments may conflict with ECHR obligations, specifically Article 14 on the prohibition of discrimination, when read with Article 8.
I confirm to noble Lords that, if a court finds that primary legislation is incompatible, it may make a declaration of incompatibility. This does not invalidate legislation. As is usual, the Government would then consider—
Lord Harper (Con)
I am grateful to the Minister for making that point, which I think was the question I asked last time. This is very relevant to the question that I posed to the noble and learned Lord, Lord Falconer. It is very important that we put protections in the legislation, so that they are not subsequently unpicked, whether by domestic courts or the European Court of Human Rights. If they are only in a code of practice or guidance, it would not provide protection against those legal challenges. Will the Minister just confirm that what I have said is correct?
Baroness Merron (Lab)
I am sure that my noble and learned friend will comment on the noble Lord’s points, but the point I wished to make, which might be helpful, is that it is usual practice for the Government to consider and address these matters. Noble Lords are aware that there is a range of ways of dealing with that: by amending primary legislation, through a remedial order or by a declaration of incompatibility. That is the usual practice.
Lord Pannick (CB)
On human rights law, does the Minister agree that, if Parliament forms a considered judgment that there is a basis for a differentiation in this context or any other, it is most unlikely that a court is going to intervene on the sensitive subjects of social policy that we are concerned with here?
Baroness Merron (Lab)
I hear the noble Lord, but my role today, as I am sure he understands, is to advise your Lordships on the risks as we see them and for noble Lords to decide how they wish to interpret them with regard to these amendments. But I am grateful for the point that the noble Lord makes.
Noble Lords may wish to note that these amendments would lead to different treatments for those detained under the Mental Health Act from those detained under the Mental Capacity Act. Only those detained under the Mental Capacity Act would be excluded from assisted dying. Noble Lords may wish to consider whether this is justifiable, given that the criteria for detention under both Acts are similar. The decision on which Act to use is largely a matter of professional discretion. Operationally, these amendments could also create confusion for practitioners, because they depart from the principle that capacity assessments are decision- and time-specific, so additional guidance and training would be needed.
Finally, as noble Lords will be aware, these amendments have not had technical drafting support from officials, which means that they may not be fully workable, effective or enforceable in the way that they are currently drafted. However, the issues raised are rightly a matter for noble Lords to consider and decide.
Baroness Berridge (Con)
I have heard this outline of the Government’s position. Am I correct in understanding that the Government have no position on ensuring that the Bill is safe for vulnerable groups of people?
Lord Kamall (Con)
The question that a number of noble Lords are concerned about, when discussing this amendment, is that the Mental Capacity Act was passed in 2005. Of course, the guidance has been updated, but it might be helpful to those in the Committee who are concerned that this Act is 20 years out of date to talk about any guidance that has been updated, so that it is not seen as out of date—if that makes sense. This is just to clarify that we are not dealing with an Act that was set in stone in 2005, as things have changed since then.
Baroness Merron (Lab)
I am grateful to the noble Lord and feel that this would probably be a very appropriate point to move on to my noble and learned friend.
Lord Falconer of Thoroton (Lab)
I will just pick up what the noble Lord, Lord Kamall, is saying. I think he is saying that the Act has been updated over the years and that people have taken account of improvements. He is absolutely right; from my own knowledge of the working of the Act, he makes an absolutely valid point.
I repeat what I said earlier—that we need to discuss this. I will deal with the interventions after I have given my response.
First, the noble Baroness, Lady O’Loan, is right in identifying the risks that arise. That is why I think that the noble Baroness, Lady Finlay, is right that we need to build in some form of enhanced protection.
As far as the intervention from the noble Baroness, Lady Berridge, is concerned, this amendment is limited to DoLS under the Mental Capacity Act; it does not include any exercise of the inherent jurisdiction of the courts on somebody whose liberty has been taken away. The noble Baroness is very welcome to come and discuss that with us, and I will give her notice of any meeting that we have.
As far as the noble Lord, Lord Harper, is concerned, how one provides effective protection depends first on the discussions that take place. I would envisage tabling an amendment on this or maybe agreeing that somebody else tables one. I cannot tell noble Lords the extent to which it will involve the Minister having powers, but it is something that we will discuss.
The points that the Minister, my noble friend Lady Merron, made about discrimination relate to people who have had a deprivation of liberty order in the past, or even those who have one now, who will be excluded altogether from the right to assisted dying. The nature of the Mental Capacity Act is that this should be done on a case-by-case basis. I am proposing that we discuss how to provide enhanced protection rather than excluding.
In the light of what I have said, I hope that the noble Baroness, Lady Finlay, and the noble Baroness, Baroness Berger, on behalf of the noble Baroness, Lady Keeley, feel able to withdraw their amendments.
Earl Howe (Con)
My Lords, this group of amendments covers two distinct but connected questions. The first question, posed by Amendment 17, is, in my judgment, a very helpful one, because the answer will clarify the role—or lack of role—played by a person’s GP in the process being pursued by that person in seeking an assisted death. It seems to me, from reading the Bill’s provisions, that the involvement of a person’s GP in that process, although very likely, is not legally necessary provided that the patient fulfils all the conditions set out in Clause 1(1). Clarification from the noble and learned Lord would be very helpful.
The second question, posed by my noble friend Lady Fraser’s Amendment 62, is also one that I hope can be answered very simply by the noble and learned Lord. Am I correct that it is implicit in Clause 5 that the preliminary discussion between the patient and the registered medical practitioner need not involve a doctor physically situated in England and Wales and need not be face to face? Equally, am I correct that it is unnecessary to state in Clause 1(3)(b) that the steps set out in Clauses 8 and 19 must be taken
“by persons in England or Wales”,
because Clauses 8 and 19 already explicitly provide for this?
Baroness Merron (Lab)
My Lords, I thank noble Lords for their contributions to this debate. As I have said, I will keep my comments limited to the amendments on which the Government have major legal, technical or operational workability concerns.
On Amendments 17 and 309A, in the name of the noble Lord, Lord Beith, and introduced by the noble Baroness, Lady Fraser, Amendment 17 is a probing amendment that seeks to establish whether people who are registered with a GP in Scotland but live in England would be excluded from eligibility for an assisted death under the Bill. Noble Lords may wish to note that Amendment 17 would have limited effect as it amends only Clause 1, which is largely descriptive. Without further amendments to Clauses 10 and 17, which contain duties to assess eligibility criteria, Amendment 17 would not impact those criteria and would introduce conflicting provisions.
Amendment 309A would amend the corresponding eligibility criteria in Clause 10 to include a person registered as a patient with a general medical practice in England, Wales or Scotland. It would not amend Clause 17, which contains the assessment by the panel. Therefore, Amendments 17 and 309A would require further consequential amendments to ensure that the Bill is coherent. This would include amendments to ensure that data recording obligations and the associated criminal offences apply to Scottish GPs. These consequential amendments would likely require consultation with the Scottish Government, as the noble Baroness, Lady Fraser, referred to, in line with the guidance for Private Members’ Bills.
I thank the noble Baroness, Lady Fraser, for tabling Amendment 62. The purpose of this amendment is to establish why the Bill requires only the actions set out in Clauses 10 and 11 to be undertaken by people in England or Wales, and not the preliminary discussion under Clause 5. Our understanding is that the reference to the preliminary discussion in Clause 5 is not mentioned in Clause 1(3) because Clause 5(3) already requires that a person wanting to have a preliminary discussion must be in England and Wales. Amendment 62 would require steps under Clauses 8 and 19 to be taken by persons in England or Wales. As drafted, the Bill requires that most of the steps in Clauses 8, 10, 11 and 19 will already have to take place in England and Wales.
In addition, Amendment 62 would have the effect that, when the Secretary of State makes regulations under Clause 19, the Secretary of State must be in England and Wales at the moment they sign the regulations. This could lead to the regulations being improperly made and challenged should the Secretary of State not physically be in England or Wales at the time of signing the regulations. This raises a practical issue of workability, as I am sure the noble Baroness understands.
On the points raised by the noble Baroness, Lady Fraser, and the noble Lord, Lord Shinkwin, relating to Scotland and guidance that the Government have provided to the sponsor, as I am sure noble Lords will understand, and I have reiterated, we are providing technical and workability support to the sponsor on devolution issues, including those that have been raised. This is an evolving situation that will continue throughout the passage of the Bill.
Lord Falconer of Thoroton (Lab)
I am grateful to everybody who has taken part in this short debate. I pay particular tribute to the noble Baroness, Lady Fraser of Craigmaddie, who discussed the issues with me yesterday and was incredibly clear in the way that she raised them today. She also raised the concerns of the noble Lord, Lord Beith.
I will deal with three issues: first, where the GP practice has to be to satisfy the eligibility requirements; secondly, whether the Clause 5 conversation has to take place with an England and Wales GP, or whether it can take place with a Scottish GP; and thirdly, how we will deal with the clashes between Scotland and England. I am aware, because the noble Baroness, Lady Fraser of Craigmaddie, told me about it, of the deposit return scheme and how that went wrong. I am conscious of that as an issue.
First, the noble Lord, Lord Beith, asks with his amendment whether the GP to whom you have to be a member of the practice can be in Scotland. The answer is no under the Bill at the moment. The Bill is clear that you have to be in a GP’s practice in England or Wales. Everybody has said to me that it is perfectly normal for a person living in England in the border areas to have a GP in Scotland, and asked why cannot we change the Bill to say that your GP could be in Scotland, because that reflects how people actually live.
I am sympathetic to that, but the noble Baroness, Lady Fraser of Craigmaddie, legitimately points out that, if that happened, I would need to make various other changes. For example—and the noble Baroness made this point—under Clause 7, where there is a preliminary discussion it has to be sent to the GP, and the GP has to keep a proper record of it. How can I enforce that unless I expand the provisions of the Bill to allow Scottish enforcement, for which I would need Scottish agreement? My view in relation to the point made by the noble Lord, Lord Beith, is: let us see whether we can make it work, but it will require discussions with Scotland.
Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
My Lords, can we follow the normal courtesies of the House, please? As the noble Baroness was not here at the beginning of this group of amendments, she cannot participate on this group of amendments. I urge noble Lords to take note of where we were and move forward.
Lord Winston (Lab)
My Lords, the noble Baroness, Lady O’Loan, in fact destroys her own argument, because access to GPs, unfortunately, is still a major problem. In that respect, I greatly congratulate the noble Baroness, Lady Gerada, who gave a fantastic maiden speech yesterday explaining the role of the GP and the ideal situation. The fact is, in this Chamber, there will be a number of people who, quite rightly, absolutely deplore or disagree with assisted dying, as they have every right to do.
It is also true that, in my practice many years ago, I saw patients who had requested termination of pregnancy—certainly, in more than one case. However, there is one particular patient who I remember very clearly. Several years after the Abortion Act had been agreed to and had started, I saw a patient who came into the hospital having been refused referral by a GP because he disapproved, as he was entitled to do, of abortion. She did not get a further referral. She went to an illegal practitioner in the East End of London and ended up with infection of the uterus and was in bed for several weeks with septicaemia. She did not die, but her laparotomy required her uterus, tubes and most of her pelvis to be removed. That is the risk. It is always going to be the case that individual GPs have the absolute right to decide how they might handle a particular difficult ethical issue. Of course, the problem here is that these vary from patient to patient; we have to understand that, and simply relying on the GP in this way seems to me to be deeply flawed.
Baroness Lawlor (Con)
My Lords, the noble and learned Lord thought that it was ludicrous that a patient would see the same doctor. Is it ludicrous, in his view, that, on average, 3.5% of consultations between a patient and a doctor are face to face? Is it ludicrous that we should expect those consultations to be with the same doctor?
Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
I am sure that my noble and learned friend will respond to that in the debate, but the noble Baroness has just intervened on an intervention. The Chief Whip made clear reference to that earlier.
Baroness Hollins (CB)
My Lords, I welcome the comments from the noble and learned Lord. General practice is very different today from when I practised as a GP earlier in my career; it was certainly not as part of a multidisciplinary team.
I added my name to the very reasonable Amendment 21 tabled by my noble friend Lady Grey-Thompson. The debate has not been about whether assisted dying should be part of a GP’s role; it has, very helpfully, focused on the importance of continuity of care and accurate records.
I congratulate my noble friend Lady Gerada on her first contribution in Committee; she is correct that GPs now work as part of a multidisciplinary team. I think that patients accept that, but they also expect that a doctor is ultimately responsible for their care when they are seriously ill. Perhaps Amendment 21 could meet the noble and learned Lord’s requirements if it were amended to refer to the medical practice rather than to the general practitioner.
Earl Howe (Con)
My Lords, the noble and learned Lord has already been very helpful in the undertakings and clarificatory comments that he made earlier in the debate, so I shall be very brief. In following up those comments, I will return to the question that I raised on the previous group. The Bill seems consciously to steer clear of insisting that a person’s GP must always be involved in the process being pursued by that person in seeking an assisted death, other than the GP having a duty to note in the patient record that the preliminary discussion has taken place. The entire process, in other words, could be conducted by the patient in conjunction with hospital-based medical consultants.
Do I understand correctly that the noble and learned Lord is willing to look closely at ways of making sure, by whatever means, that the crucial judgments made by clinicians about a patient’s capacity, about coercion and about that person’s settled wish to end their life are firmly and soundly based? The route to achieving that may well be the GP practice and the multidisciplinary team within it, but, as we have heard, that source of information may not be practical or useful in every case. Will the noble and learned Lord therefore ensure that he will consider more generally in the round possible safeguards that will forestall the possibility of superficial or cursory assessments being made—especially, perhaps, assessments by hospital consultants, who may have enjoyed only a brief acquaintance with the patient?
Baroness Merron (Lab)
My Lords, I thank noble Lords for their contributions on proposed safeguards relating to general practice. I will keep my comments limited to the amendments on which the Government have major legal, technical or operational workability concerns. On that basis, I draw noble Lords’ attention to the operational workability concerns in relation to Amendments 19, 20, 21, 29, 30B, 265A and 443A.
Baroness Lawlor (Con)
I beg the Minister’s pardon but she is referring to my Amendments 30B, 265A and 443A, not those of the noble Baroness, Lady Hollins.
Baroness Merron (Lab)
I am most apologetic and grateful for the clarification. I hope that the noble Baroness, Lady Hollins, will forgive me, too.
I will continue. The GP must also have seen them at least six times in face-to-face appointments during those two years. Noble Lords may wish to note that these amendments introduce requirements that may result in people seeking GP appointments that are not clinically necessary. This may have an impact on wider access to GP services. Noble Lords may also wish to note that, even if a person has seen their GP the required number of times over the two-year period, their GP could still refuse to provide the explanatory letter, as they are not under any duty to participate in the provision of assistance, as per Clause 31. This would result in the person being unable to access an assisted death.
Lastly, Amendment 220, tabled by the noble Baroness, Lady Foster, seeks to add an additional step in the assisted dying process. It would not be a compulsory step; therefore, it would not have a major impact or be unworkable. However, this amendment has not had technical drafting support from officials and, although the issues raised are rightly a matter for noble Lords to consider and decide, would likely require further consideration in order to be made fully workable, effective or enforceable.
Baroness Lawlor (Con)
If there are on average 3.5 consultations a year face to face, with calls and so on bringing it up to 8.7, it would not necessarily make for additional unnecessary appointments for a person with such a condition. That is my first clarification. My second is about a letter being required and the doctor concerned not wanting to assist in the process. The letter is not about the process. The letter would go into the person’s history over the two years they have been consulting the doctor. It has nothing to do with the process of seeking an assisted death.
Baroness Merron (Lab)
Acknowledging that the amendments that I was referring to were tabled by the noble Baroness, Lady Lawlor, I have nothing to add to the points that I have already made, other than to say that the noble Baroness used the word “average” and therefore there is a question about workability. Therefore, our interpretations on the noble Baroness’s second point do differ.
Lord Falconer of Thoroton (Lab)
My Lords, I indicated my position in my intervention. I will summarise my understanding of the amendment, what my response is and next steps. All the amendments in this group seek a requirement in addition to having a GP before you can have an assisted death. My noble friend Lord Rook suggests having a GP for at least 12 months and having seen him twice before the first declaration. The noble Baronesses, Lady O’Loan and Lady Grey-Thompson, refer to having an “established relationship” with a GP. The noble Baroness, Lady Finlay, refers to one consultation and a home visit before the application. The noble Baroness, Lady Lawlor, refers to a two-year relationship, an average number of visits face to face and then a letter that relates to the medical condition, the treatment and the state of mind of the patient.
As I have indicated, the GP, in the structure of the Bill, is not somebody who has to be involved. The noble Earl, Lord Howe, encapsulated perfectly that the GP is somebody who is receiving information. All these provisions for making it necessary to have a better relationship with your GP than just having a GP do not touch the safeguards. Quite separately from that, I support what the noble Lord, Lord Deben, and the noble and learned Baroness, Lady Butler-Sloss, said. These provisions have an air of utter unreality if you are saying that a condition of an assisted death is a particular relationship with a particular GP. I do not think that any of these safeguards work or reflect the current drafting of the Bill.
It is clear from listening to the debate that people who are concerned with the care should form a basis for the decision. It may not necessarily be making the decision—a lot of people would say that they should not be making the approval—but their input is vital. That was the insight of the noble Baroness, Lady Gerada, which was very much reflected around the Committee. I am willing and keen to reflect that insight in the Bill. But the route is not through newness in relation to the GP. It is reflecting the proposition that the multidisciplinary team dealing with the patient must have some input. I do not know whether that satisfies the question asked by the noble Earl, Lord Howe, but that is the purpose of what I am taking away from this very valuable debate.
As for the right reverend Prelate the Bishop of Gloucester, we are going to speak about prisoners on the next group. Can I reserve my position in relation to prisoners to avoid there being too much duplication?
In those circumstances, I invite the noble Lords not to press their amendments.
Lord Kamall (Con)
I have never been so popular; it will not last, I know.
I thank the noble Baroness, Lady Grey-Thompson, for her amendments. I pay tribute to her for her sincere and long-standing commitment to protecting the most vulnerable in society. If we cast our minds back to Second Reading, many of the contributions made and concerns raised were regarding those who are the most vulnerable in our society. I remember at Second Reading being particularly touched by the words of the noble Lord, Lord Rees—he is not in his place now—who raised concerns about the vulnerability of some ethnic-minority communities, particularly those from disadvantaged communities as well.
Let us quickly rush through some of the points. On Amendment 22, which would make prisoners ineligible for end-of-life services as envisaged by the Bill, I completely understand the underlying principle. Many have spoken, rightly, about the vulnerability of prisoners. While for some it might seem wrong, as the noble Lord, Lord Farmer, has suggested, that a prisoner who has a terminal illness may have a way of cutting short their sentence by means of this Bill, as my noble friend Lady Coffey alluded to, others may say “Good riddance”. I also recognise the argument that prisoners with a terminal illness should be treated with the same compassion and care at the end of their lives as other terminally ill people subject to the Bill, as my noble friend Lord Markham recognised.
We also have to recognise some of the concerns over moral hazard. I do not know how large the incidence of this would be. Would it really encourage those who are terminally ill to commit crime? No studies have been done, but I am open to that concern. There is also the idea about higher levels of suicidal ideation, as raised by the noble Baroness, Lady Fox. These are really important points that we have to take account of.
The right reverend Prelate and my noble friend Lord Deben spoke about the pressure of reducing the prison population, while the noble Lord, Lord Carter, spoke about the higher rate of suicide among male prisoners. These are all reflections that should give us cause for concern, and things we should take account of as we consider what we will do between Committee and Report.
I thank the noble Baroness, Lady Grey-Thompson, for raising the issue of those who are pregnant. As the noble Baroness said, this was not debated in the other place, so I am grateful that the noble Baroness was able to give us the opportunity to debate it. I am also grateful to the noble Baroness, Lady Berger, for sharing statistics about expectant mothers. It was important that we heard those stats. I cannot begin to imagine the difficulty an individual in those circumstances may face. I understand the concern that it does not seem right that the safety of an unborn child may be endangered under the provisions in the Bill. I also understand that there might be precedence in other legislation. I wonder what the noble and learned Lord’s reflections on that are, given his expertise.
I note the amendment tabled by the noble Lord, Lord Farmer, on access to this for those who are awaiting trial. Once again, I would be very interested in the noble and learned Lord’s legal experience on whether that seems relevant and should be within this Bill. During the debates on the Mental Health Bill, my noble friend Lady Berridge was assiduous in spotting gaps in legislation or inconsistencies between different Acts. My noble friend has done the same thing here by raising concerns over the vulnerability of those with education, health and care plans. I think this needs further consideration.
I also thank the noble Baroness, Lady Grey-Thompson, for her amendments relating to those who are homeless or who live in insecure and temporary accommodation. I welcome the experience of the noble Baroness, Lady Gray. I still remember a conversation I had with one homeless charity that we are all one or two unlucky events or bad decisions away from homelessness. I heard from homeless people who told me that they had a great job and a great family life and that everything was going their way. They lost their job, which then led to them losing their marriage. After incidents of sofa surfing and testing the patience of their friends, they ended up homeless. It could happen to anyone. It is important that we do not dismiss the homeless as people who cannot be bothered or are idle. It could happen to anyone. Any noble Lords who have met those in homeless communities will know that some people had been incredibly successful but, after two or three bad decisions or unlucky things that happened in their life, they suddenly found themselves homeless. They are also judged by the way they look when they are homeless.
I remind all noble Lords that the Bill relates only to those who are suffering from a terminal illness and those who have been given an expectation that they will not live for longer than six months. We have to be very careful that, although we have sympathy for the homeless and prisoners, the Bill relates only to those who have a terminal illness. I know there are concerns that the Bill may be widened beyond that, but that is the debate at this stage. We should be quite clear that we are focusing on those with a terminal illness. So, much like on the question of prisoners and others, I recognise the arguments on all sides, but this is an opportune moment, not only because of time but because of the noble and learned Lord’s legal experience, to hear his reflections—after the Minister, obviously.
Baroness Merron (Lab)
I am most grateful.
My Lords, I thank all noble Lords for their contributions to the debate on this group. As is my consistent introduction, my remarks will focus only on issues where the Government have major legal, technical or operational workability concerns. Many of the points that follow relate to the European Convention on Human Rights. These are risks that I am raising to inform noble Lords’ decision-making, as I said on the first group. I wish to be clear that the underlying policies are a matter for Parliament. I say to noble Lords who referred to my ministerial colleagues in the other place that it is the role of Ministers, whether in your Lordships’ House or in the other place, to flag the risks to the Bill, including potential legal challenges. As I said, policy decisions remain a matter for the sponsors. Decisions in this regard rest with Parliament.
I begin with Amendment 22, tabled by the noble Baroness, Lady Grey-Thompson, and Amendment 30C, tabled by the noble Lord, Lord Farmer. These amendments would make prisoners, a defendant on remand, a defendant on bail or those detained by a hospital order ineligible for assisted dying services, even if they have a terminal illness and meet all other criteria. Aside from the right to liberty—Article 5—the ECHR requires that prisoners, a defendant on remand or a defendant on bail should have the same rights as those who are not. The rights engaged by this amendment are Article 8 on the right to respect for private and family life and Article 14 on prohibition of discrimination. Noble Lords may wish to note the risk that making these groups ineligible for assisted dying would, on the face of it, lead to a difference in treatment, which would need to be objectively and reasonably justified in order to comply with ECHR obligations.
Likewise, making ineligible hospital in-patients who are under a hospital order would lead to a difference in treatment. Without sufficient justification for the discriminatory treatment, this may be a breach of the ECHR, which could lead the courts to issue a declaration of incompatibility.
The noble Baroness, Lady Grey-Thompson, has also tabled Amendments 24, 458, 308 and 347. The purpose of Amendments 24 and 458 is to exclude those who are pregnant from accessing assisted dying, while that of Amendments 308 and 347 is to make persons who are homeless, or living in supported or temporary accommodation, ineligible for assisted dying services. As I have previously noted, the reasons for this difference in treatment would need to be adequately justified to avoid the risk of a successful challenge under the ECHR.
Baroness Stroud (Con)
Can the Minister give her perspective on whether the arguments laid out today would be justifiable as reasons for a different form of treatment between the two categories: prisoners and non-prisoners?
Baroness Merron (Lab)
It is important I reclarify that that is a policy decision. What I am doing with your Lordships’ Committee is advising on risks, to assist noble Lords to make their decision regarding this policy.
Amendments 30A and 119A, tabled by the noble Baroness, Lady Berridge, would exclude any person with an education, health and care plan from being eligible for an assisted death, except in cases provided for in regulations made by the Secretary of State. As drafted, these amendments could impose unclear and potentially undeliverable legal duties on the Secretary of State and are potentially not aligned with how EHCPs work in practice or in law. The amendments give rise to a number of unresolved operational questions that do not work with other provisions of the Bill and they are not drafted with sufficient specificity. That could lead to confusion for those interpreting the legislation and unintended outcomes.
Baroness Berridge (Con)
We are about to have a meeting to outline special additional conditions, so can I clarify that the Minister is not saying that that is not possible and just that the particular conditions outlined in Amendment 119A are not possible?
Baroness Merron (Lab)
First, I am referring to the amendments before us. Secondly, I am advising on risk and workability, again for the assistance of your Lordships’ Committee, which, as is correct and proper, will make the decision.
These amendments appear to treat people with EHCPs differently from those who do not have them. This could give rise to potential incompatibility with Article 14 of the ECHR, when read with Article 8, and would require reasonable justification for differential treatment.
Finally, as noble Lords will be aware, the amendments in this group have not had technical drafting support from officials, so the way they are drafted means that they may not be fully workable, effective or enforceable. However, as I have said, the issues raised are rightly a matter for noble Lords to consider and decide.
Lord Carter of Haslemere (CB)
My Lords, the Minister referred to a number of articles of the ECHR, but she has not referred to Article 2, which is the duty on a state to protect life. That is why the courts have imposed a duty of care on the Prison Service and the Government to protect prisoners from committing suicide. My question goes back to what I said earlier: how do the Government reconcile that duty with a vulnerable prisoner applying for an assisted death? How does that square with the duty under Article 2 and the duty of care to prisoners?
Baroness Merron (Lab)
I refer the noble Lord to the provisions within the Bill. His earlier question was very much about policy. I am sure that my noble and learned friend will also refer to this, but this is a matter of policy and therefore it is for Parliament to decide.
Lord Falconer of Thoroton (Lab)
I am obliged to noble Lords for all their questions. I will deal with the four issues that this group raises: prisoners, pregnant women, homeless people and those who are the subject of an education, health and care plan.
Turning first to prisoners, I declare my interest as chair of a prison charity, Liberty Kitchen. I have been involved in prison issues for a very long time; indeed, I was once the Minister responsible for prisons. When I was in that role, every time a prisoner committed suicide, it was deemed a failure of the Prison Service and something that we took incredibly seriously.
As far as prisoners are concerned, I will make two points. First, this is about people who are terminally ill and have six months or less to live. The question that the sponsors address is whether prisoners should be treated differently from the rest of the population. The posit is: if you are a prisoner and get a terminal illness, is the condition of the prison so terrible that you should never allow a prisoner ever to have that right?