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(1 day, 13 hours ago)
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Lord Kennedy of Southwark (Lab Co-op)
I did not want to disappoint noble Lords. Before we begin this day in Committee, I shall make my usual brief remarks. First, I reiterate my thanks, on behalf of the whole House, to all the staff across the House who are facilitating this Sitting. I know that noble Lords are aware of the huge amount of work that takes place to enable us to consider this important business.
I will not repeat everything that I have said before at length, but I thought that it would be helpful to remind noble Lords of a few key points. Again, I will look to adjourn our proceedings at around 6 pm. Any noble Lord may seek to bring our proceedings to an end before then by moving the Motion that the House be now resumed.
Today will begin with a debate on a group of amendments that was adjourned when proceedings concluded on our previous day in Committee. Once the Deputy Chairman of Committees calls the debate on that group of amendments, any noble Lord who was here at the start of the proceedings on our previous day of debate may participate, but nobody else. The clerks have helpfully provided a list of all those who were present; it was shared with the usual channels last week and again yesterday. I have asked the Whips to monitor this and ensure that only those on the list participate. So, please, if you were not here at the start of the debate last time we sat, do not attempt to speak. Shouting out, “Let them speak”, is not helpful when the Companion is clear on this.
When we conclude today and look to finish our proceedings at 6 pm, it will be easier if we can conclude the group we are on by then, rather than going on to a new group. Obviously, if I have to, I will adjourn again in the middle of the group, but it is much cleaner for everybody if we finish the group so that we can start a new debate on the next day. The clerks will compile a list of the people speaking in the later debates to ensure that we have everyone’s names if we have to adjourn mid-group.
My noble and learned friend Lord Falconer of Thoroton has again set a target for today’s Committee debate. As I have said before, I hope that discipline and the usual courtesies will apply and that we will make progress towards the target. The Whips will facilitate a short 40-minute lunch break at a convenient point around 1 pm. For general guidance on how we should proceed and conduct ourselves, I highly recommend the Companion—in particular, paragraph 4.29 on page 60, and paragraphs 8.81 and 8.82 on page 143.
Finally, conversations during the debate are not welcome. If you want to have a conversation, please leave the Chamber then come back when you have finished it. With that, we shall move on to the debate.
Terminally Ill Adults (End of Life) Bill
(1 day, 13 hours ago)
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The Earl of Effingham (Con)
My Lords, debate on this group, as with every group thus far in the Bill, has been extensive and in depth. We have heard from around 19 noble Lords on over 70 amendments. His Majesty’s loyal Opposition do not believe that it would be an effective use of your Lordships’ time for us to summarise the excellent contributions made across all Benches by many noble Lords. The relevant points have been highlighted. We welcome the opportunity to hear from the Minister and the noble and learned Lord, Lord Falconer, to understand their position on the proposals that we have all listened to with interest.
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, as with the groups on 27 February, I have structured this speech by grouping amendments by theme rather than taking them in order. This is in the interests of dealing with them as quickly as possible. If anything needs a longer explanation then I will take interventions, but it would be a more effective use of time if noble Lords wrote to me so that I could try to give a fuller and more detailed explanation.
I will begin with some observations about the legal implications of some of the amendments, then outline what the Government see as operational workability issues presented by some of the amendments. Finally, there will be some brief drafting considerations. I shall continue to limit my comments to amendments on which the Government have major legal, technical or operational workability concerns. I remain happy to write to any of your Lordships who have further questions relating to the workability of any amendment and will place a copy in the House Library.
The Government’s position remains that it is for Parliament to consider the policy. I will therefore not provide a government view on the merits of any proposed changes or make any observations in a personal capacity. When we were last in Committee, the noble Baroness, Lady Fox, raised how the Government plan to implement this Bill; she was not alone in doing so but she mentioned it specifically. We have not undertaken detailed implementation work as that would precede the parliamentary process. Should Parliament pass the Bill, the Government will undertake detailed work to develop a delivery model and on workforce planning, engaging with stakeholders and delivery partners, including the judiciary.
I turn first to legal considerations and specifically the compatibility of some of the amendments with the European Convention on Human Rights. The articles in question are Article 6 and Article 8. I turn first to Article 6 risk. There are four amendments in this group which, in the Government’s opinion, may interfere with a person’s right to a fair trial under Article 6. The first is Amendment 499, in the name of the noble Baroness, Lady Finlay of Llandaff, which would introduce a route to annulment of a certificate of eligibility where material circumstances have changed. However, it requires further detail about the process, so it is difficult for us properly to assess it at the moment.
The Government have concerns that Amendment 498, in the name of the noble Baroness, Lady Grey-Thompson, would prohibit any further referral to a panel where the commissioner has previously dismissed the individual’s application to review a panel decision. This has the potential to breach Article 6 in circumstances where a material change has subsequently arisen.
Baroness Coffey (Con)
The Minister will know that I will discuss later why I do not think that the legislation should apply to Wales, and that the Welsh Senedd should make the decision. I tabled the amendment because, at the moment, the judge does not have to be a judge from this country. As far as I can tell from the Bill, it could be a judge from anywhere in the world who has served under the common-law process.
Baroness Levitt (Lab)
I am sure that the House will welcome that clarification from the noble Baroness, but it may be that there is a drafting issue, because the amendment refers to England rather than England and Wales, and there is no such creature as a member of the senior judiciary from England only.
Finally in this group, the Government have concerns that Amendment 929B, also in the name of the noble Baroness, may have an impact on the operability of an assisted dying service by placing apparently arbitrary limits on the resourcing of the panel when the demands of that service are, as yet, unknown.
I turn now to groups of amendments dealing with assisted dying review panel proceedings and powers. Amendment 463, in the name of the noble Lord, Lord Murray, would require the commissioner to assess the procedure adopted by every individual assisted dying review panel. That would remove any flexibility for the panel to deviate from procedure, should it seem appropriate to do so for either inquisitive or compassionate reasons associated with the case.
Amendment 464, also in the name of the noble Lord, Lord Murray, would give the panel the same powers, privileges and authority as the High Court. The powers of a High Court judge are significant and wide-ranging. They are set out across statute, court rules and the inherent jurisdiction of the court. The Government think that some of them, such as the power to imprison for contempt, are not the sorts of powers that your Lordships may feel are appropriate for such a panel. Without more clarity and detail, it is impossible to assess whether this kind of extension would be appropriate, and it would be extremely difficult to apply in practice. In the view of the Government, the amendment ought to set out which powers, privileges and authorities it is intended to capture.
Regarding Amendments 495B and 941A, both in the name of the noble Baroness, Lady Maclean of Redditch, your Lordships may wish to note that requiring the panel to identify and provide a report on unmet social or palliative care needs is not within its remit, nor would the panel necessarily have the knowledge of local service provision or the expertise to make personalised recommendations on social and palliative care. Such a report therefore risks containing inaccurate or incomplete advice.
I turn to panel referrals and capacity. Amendment 445, also in the name of the noble Baroness, Lady Maclean of Redditch, seeks to ensure that the panel is independently satisfied that the person seeking assistance has continuously had capacity from the point of their first declaration. Your Lordships may wish to note that the amendment is likely to cause major workability concerns. It would be extremely difficult for the panel to determine whether the person had capacity throughout this period, rather than just at the point at which the capacity assessment is made. Moreover, it might result in people being excluded because of temporary, brief periods of incapacity. For example, a person would not have had continuous capacity if they had had an operation under general anaesthetic during this period.
On panel decisions, Amendment 496, in the name of the noble Baroness, Lady Grey-Thompson, would mean that a person cannot apply for their case to be reconsidered on the basis that the decision was irrational. That would be unusual, as the elements of the existing test under Clause 18 reflect the three primary grounds applicable in judicial review proceedings and are part of a recognised set of legal principles applicable to decision-making. If a person wished to challenge a first panel’s decision for being irrational, which is a term of art in legal proceedings, they would still be able to do so via judicial review. That would create an inconsistency in forum that would need to be justified.
Amendment 496A, in the name of the noble Lord, Lord Weir, would add failure adequately to consider evidence relating to disability-related vulnerabilities to the grounds under which, where a panel declines to grant a certificate of eligibility, the commissioner could refer a person’s case to a second panel. Your Lordships may wish to note that failure properly to consider relevant information would already be captured by the irrationality ground for reconsideration set down in Clause 18(2)(b). Similarly, a decision that was inconsistent with equality legislation already engages the first ground of challenge in Clause 18(2)(a), because it would contain an error of law.
I have taken rather longer over this than I had intended. Noble Lords will be delighted to know that I am nearly there. The final part is on drafting considerations and Amendment 490. If your Lordships support any of these amendments, the Government may need to revisit the drafting to ensure clarity and coherence with the statute book. To give one example, Amendment 490, in the name of the noble Baroness, Lady Grey-Thompson, contains some ambiguous terms that might need tightening up. In the interests of time, I will not go into more detail, but I am happy to discuss further with the noble Baroness in due course. Having taken rather longer than I had hoped, that is it from the Government on this group.
Baroness Coffey (Con)
Actually, I have further questions of clarity from the Government’s response. In the amendment that I tabled about His Majesty’s Counsel, the Minister mentioned workability concerns about there not being enough people. I would like to understand whether the government proposal suggested that amendment to the Bill’s sponsor. Do the Government have any consideration about alternatives I proposed during debate, where, instead of King’s Counsel, we could have people such as deputy court judges or other sorts of judges? In the two weeks since we last discussed this matter, have the Government considered that?
Baroness Levitt (Lab)
As a general point, the Government merely point out workability concerns and do not suggest ways in which they might be remedied. That would be a matter for the Member who tabled the amendment to discuss with the sponsor of the Bill. So no, we have not come up with any proposals because—I am sure that the noble Baroness is sick of me saying this—we are neutral on this. We just point out where we can see difficulties with the amendment as drafted.
Baroness Coffey (Con)
Did the Government propose, on workability grounds, the suggestion in Schedule 2 that King’s Counsel should be included? It may be that the noble and learned Lord, Lord Falconer, can answer that, but a constant theme has been trying to understand what the Government have suggested in their private workings with the sponsor of the Bill, which they will not share with the House. Did they suggest this as a way to make it workable? That is what I am trying to get to the bottom of.
Baroness Levitt (Lab)
I am going to have to write to the noble Baroness about this, because I do not think I can answer it. My noble friend the sponsor will deal with the question of panels. If this question is actually about the assistance given by the Government, I refer to my previous answers, but I will write to the noble Baroness on her specific point.
Lord Falconer of Thoroton (Lab)
My Lords, in the course of this debate, the noble Baroness, Lady Coffey, referred movingly to the death of her parents. I pay tribute to her courage and her contribution.
I will deal with the groups of amendments in themes. First, I will deal with appointments to the panels. The noble Lord, Lord Murray of Blidworth, through his Amendment 925A, said that there should be a proper appointments procedure. I agree with him that there should be a proper appointments procedure. The Bill currently places the obligation of the appointment of panel members on the voluntary assisted dying commissioner. That is in Clause 4(4)(b) and in paragraph 2 of Schedule 2. I believe that that is adequate. The voluntary assisted dying commissioner must have a proper process. I have faith that he will do that, and the law will require him to do so.
The noble Lord, Lord Murray, also proposes that the Judicial Appointments Commission make the legal appointments. Remember that one of each of the panels would have to be either a judge or King’s Counsel. I am not in favour of that. My noble friend Lady Levitt indicated that there were problems with that, but I have a more principled objection: we are dealing here not with judges but with members of a particular panel, so I do not think that this is either appropriate or necessary.
Lord Falconer of Thoroton (Lab)
Can I just finish so that questions can be asked at the end? The noble Baroness, Lady Coffey, tabled Amendment 921ZB about King’s Counsel. The choice of who should be within the legal grouping is for the sponsors, not the Government. My noble friend Lady Levitt is right when she says that it is a question for me, not the Government. The Government are not saying that it is unworkable. They are saying that it is for the sponsor to decide. The choice of King’s Counsel and specified judges or former judges is to provide a wide enough pool from which to draw legal advisers.
As far as King’s Counsel are concerned, we think that by becoming King’s Counsel they have proved that they have sufficient quality to be the chair of such a panel. It is intended to mean King’s Counsel from England and Wales. I do not think it allows for people from other jurisdictions, but I will check, and if it does allow for other jurisdictions, I will restrict it to England and Wales because that is the intention.
In her Amendment 932A the noble Baroness, Lady Coffey, suggests that it should not necessarily be the lawyer who chairs the panel. The reason why the lawyer is put in the driving seat as the chair is because the panel has to comply with the duties imposed on it by the statute. Lawyers are certainly not necessarily the best chairs, but putting a lawyer in the chair will make sure that the panel focuses on its legal requirements. Those are my limited comments on the whole thing. The noble Baroness, Lady Coffey, had a question for me.
Baroness Coffey (Con)
One of my questions has been answered by the noble and learned Lord in his comments, but I want to briefly go back to Amendment 483C. The amendment is about pre-recorded audio or video material for the purposes of subsection (4). The noble and learned Lord has said that if a co-ordinating doctor is off ill, there are other provisions through medical exceptions. There is also provision in the Bill for the co-ordinating doctor to delegate any of their functions, but I am going back to the concept. For someone who is near the end of their life, why is it that any other doctor, witness or proxy should be allowed to have pre-recorded audio or video material? I want to get an understanding of that.
Separately, I think there was a slip of the tongue earlier by the noble and learned Lord. He said that the default was that the panel would be expected to sit in private but that there was then allowability for it to sit in public. I know he did not mean that, and he later said that the default was to sit in public. I want to clarify something about Amendment 933A. My amendment suggests that the only bit in private should be the interaction with the applicant. Could he explain why, if somebody has requested for that to be in private, all the other interaction should not continue to be in public?
Lord Falconer of Thoroton (Lab)
On the noble Baroness’s first question, Clause 17(5) says that:
“Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4).”
Subsection (4) relates to all of the material that the panel is dealing with. Subsection (5) is saying that the panel can use pre-recorded audio material if it thinks it is appropriate. I think it should be given that direction—I cannot see any reason why the panel should be restricted in relation to that.
Turning to the privacy point, paragraph 6 of Schedule 2 says that:
“Panels are to determine referrals in public”—
so the default is that it is in public, not private—but that
“this is subject to sub-paragraph (2)”,
which says that a panel can sit in private if that is what the person wants. The question from the noble Baroness was, basically, why should everything then be in private. It is because everything is about the patient. The whole thing is about the patient. If I want the circumstances of my illness and why I want an assisted death to be private, I should have that option. It is unrealistic to say that we can chop this up into the bits that are about the patient and the bits that are not.
Baroness Berridge (Con)
The noble and learned Lord is correct that the amendment refers to the wrong person at the local authority. However, the substance of what I said two weeks ago about Amendment 462A is this: does not the panel need a power to ensure it can ask a local authority to meet unmet needs of the person in front of it, such as if their care package has fallen apart or there is a problem with their benefits? At the moment, it has no power to do anything other than approve, if the boxes are ticked. I am not saying that poor people should not apply, but I am asking the noble and learned Lord whether the panel should not have a power to ensure those needs are met when it has that evidence in front of it.
Lord Falconer of Thoroton (Lab)
The panel has the power. Clause 17(4) says that the panel
“may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.”
That power would include a power to ask the local authority to provide any information it wants.
Baroness Fox of Buckley (Non-Afl)
I thank the noble and learned Lord for a comprehensive and useful set of answers. I asked a rather more banal question—it was a long time ago—about workforce challenges. What if the social workers or the psychiatrists cannot be found? We are already acutely short of psychiatrists and social workers in general, and that is problematic in particular geographic areas. Could the noble and learned Lord comment on what will happen if the legal expertise, social workers or psychiatrists are not available in one part of the country? Will it be a postcode lottery?
My second question is this. Has the noble and learned Lord consulted the likes of the Royal College of Psychiatrists and the British Association of Social Workers about what the Bill will do to workforce pressures? It seems to me that it will affect workability. If these panels are so important and there are not enough people to sit on them, I am worried that there will be a watering-down, with the grabbing of any old social worker who wanders past. Maybe the noble and learned Lord could clarify that.
Lord Falconer of Thoroton (Lab)
If there are not enough people with the requisite expertise to people the panels then there will not be panels to do the job. That is why the broad categories have been adopted in the Bill. The Royal College of Psychiatrists has expressed views in relation to this, as has the British Association of Social Workers. However, it is necessary for us to find people to do this process, because the workability of the scheme depends on it, and we believe it is possible to do that. We recognise the concerns that have been expressed, including by the noble Baroness, who is right to say that if we do not have people who can people the panels then we cannot do the process.
On the broader issue of what happens if we have people in one part of the country but not another, it will be for the voluntary assisted dying commissioner to ensure that, when a panel is required, it can be provided.
Baroness Berger (Lab)
I have listened closely to all of my noble and learned friend’s responses and remarks on this sizeable group of amendments—by my count, there are 105 amendments. While a handful have been presented by the sponsor, my noble and learned friend, the overwhelming majority have been put forward by noble Lords on all sides of the Committee, largely informed by the evidence that we heard at the Select Committee and by representations made by professional bodies and medical colleges outside of this place that wish us to improve the Bill. That is the job we were tasked to do by the other place and by our colleagues.
I have listened closely to every single word of my noble and learned friend’s response and heard every reason why every single one of these amendments should not be accepted. I did not hear what could come forward to make the changes that people think should be made to this Bill to make it safe, particularly for vulnerable groups, and to ensure we do not see coercion. Reflecting on his response, does my noble and learned friend intend at a future moment to come forward with anything that would put in the Bill things that would make the material differences that are the reason and impetus behind noble Lords putting forward these amendments?
Lord Falconer of Thoroton (Lab)
I have thought very carefully about the amendments we have gone through. I am sure they are all based on attempts to improve aspects of the process, such as the appointment of the panels, how the panels operate and the privacy issues. I should say that very considerable thought went into those issues before the Bill was drafted and as it went through the other place. I have given detailed reasons as to why I think the amendments we have debated would not really improve the position. For those reasons, after giving it considerable thought, I think that the Bill probably reached a better conclusion on, for example, the “must” and “may” issue that the noble Baroness raised and the need for special extra expertise. I have given it careful thought, but I do not think any of the amendments we have gone through would improve the Bill.
Lord Harper (Con)
I want to pick up a point made by the noble Baroness, Lady Berger, and the noble and learned Lord’s response to it. There are two aspects to what she said: whether the noble and learned Lord thought that any of the specific amendments might need bringing forward in a different form, and whether he thinks any of the issues raised, or concerns expressed, by any of the professional organisations that gave evidence raise any issues at all that he thinks need improving in the Bill, even if he thinks none of the amendments is acceptable. Does he think that all of those professional bodies’ concerns, and the evidence they gave about them, are misplaced?
Lord Falconer of Thoroton (Lab)
Professional bodies have raised a whole range of concerns. That has informed the drafting of the Bill, and certain changes have been made in the light of a variety of those concerns. I certainly am not saying that we know better on everything than the royal colleges. Their thoughts since the Bill has been published have been taken into account.
Lord Murray of Blidworth (Con)
My Lords, I thank everyone who has spoken on this adjourned group. I propose to adopt the enviable style of my noble friend Lord Effingham and not refer to everybody’s speeches. I would, however, pick up just one point from our discussion on 27 February, which was in the speech of the noble Baroness, Lady Hayter, when she criticised my comment in opening the group that this was not a life and death decision that the panel was making. I answer that by simply pointing to the contents of Clause 17(2), which sets out the checklist on which the panel must be satisfied. The most pertinent of those are:
“that the person is terminally ill … that the person has a clear, settled and informed wish to end their own life”
and
“that the person made the … declaration voluntarily and was not coerced or pressured by any other person into making that declaration”.
In my submission, it is plainly a decision—a question—of life and death that the panel is making.
I propose to respond to the noble and learned Lord, Lord Falconer, and the Minister thematically, adopting their own approach. There are three key themes in my amendments. They are the appointment process, whether there should be guidance to the panels and what powers the panels should have. I am very glad that the noble and learned Lord agreed with me that there needed to be an appointment process, but I am afraid I do not share his laissez-faire approach that it can all be left to the person of the assisted dying commissioner.
It seems to me appropriate for such a significant post to be considered by a formal body. I do not accept the account given by the Government that it is all a bit too administratively difficult for the JAC to consider this. The JAC is a body set up under the Constitutional Reform Act 2005 and it is governed by a statutory instrument of 2013. Those are all capable of amendment and, with resourcing, it is entirely capable of managing the task that I envisage in my amendments.
I turn to the question of guidance. There is no provision that there must be guidance to the panels. It seems to me that unless you have guidance, there is a real risk that panels will be of differing quality and adopt different local practices. This could cause terrible errors, with very significant and ultimately irreversible consequences. There must be guidance, and there must be guidance made by the commissioner to the panels, and it must be informed by consultation with relevant bodies. That is what my amendments achieve. I am afraid I do not share what we might call the “good chap” theory of assisted death that the noble and learned Lord, Lord Falconer, appears to suggest by having an option to create guidance to the panels.
Finally, as to powers, criticism was made of me by the Minister and the noble and learned Lord that I had asked too much in my amendment, by asking for the powers of the High Court to be imposed upon the panels. As I made clear in my speech, and as indeed is clear in the Member’s explanatory statement, if noble Lords look at the Marshalled List, this was always a probing amendment. The Minister said that I had not specified which powers. Well, if she had looked at the Member’s explanatory statement, she would have seen them. They are targeted at the powers to require evidence because, as I said at Second Reading, at the moment these panels have fewer powers than the parking adjudicator of Greater London. In a matter where they are looking at whether somebody is being coerced into volunteering to die, the panel cannot even ask to see their will. These powers are an essential addition to the Bill if it is to proceed and with that, I beg to withdraw my amendment.
“(f) ensuring the licensed assisted dying service records and analyses the death process, including substances used and complications;(g) retaining all source documentation for a minimum of ten years;(h) supporting retrospective and prospective research on all aspects of assisted dying;(i) recording, collating and analysing all data and reporting in detail at least annually on the anonymised information to monitor the operation of this Act and reporting annually on it to Parliament (see section 49).(4A) No member of the office of the Commissioner can be employed by, have financial or commercial relationships with, or act in a voluntary capacity for, any agency providing assisted death.”
Baroness Finlay of Llandaff (CB)
My Lords, I will now speak to this rather large group of amendments, many of which were simply consequential, so I have withdrawn those to focus the debate. I ask noble Lords who may have questions to kindly allow me to explain the whole process rather than interrupting the sequence.
We took extensive evidence in our Select Committee and had many briefings critical of the panel process as written in the Bill. The Royal College of General Practitioners clearly stated that any legislation must ensure that:
“Any assisted dying service should be seen as a standalone … service … and … not be deemed core GP work”.
It is clear that:
“Any assisted dying service would need to be separately and adequately resourced and … not, in any way, result in a de-prioritisation of core general practice, or palliative care services”.
The promoters of the Bill themselves have said that the voluntary assisted dying service must be clearly defined and not complicated. The model proposed here would meet those essential criteria and improve safety, providing legitimacy with an expert multidisciplinary panel. Bureaucracy is simplified; it avoids burdening family or treating for clinicians, and it provides statutory separation between assessment and the process of causing death.
The effect of the scheme is to provide clarity by strengthening the process so the request goes directly through a genuinely multidisciplinary panel involving rigorous assessment, strong conflict of interest rules, clear statutory guidelines and clear norms for the collection of data—and, in the event of doubt, there is potential court involvement. This creates a higher level of professionalism and greater legitimacy for the person. There is also a clear framework for the panel procedure. Unlike the proposed ADR panels that we previously debated in the Bill, these panels are genuinely multidisciplinary across relevant specialties. The major effect of this is to remove individual doctors assessing in isolation and the risk of “doctor shopping”. There is also a new scheme for licensing and regulating assisted death services, as well as strict regulation of the lethal substances used to bring about an assisted death. This would decrease the risk of dispensing errors, as the process of dispensing approved lethal substances is closely monitored.
These amendments move the provision of accurate information to the patient and the assessment of eligibility up front in the Bill. The assessment is all undertaken by a defined group with expertise across different disciplines. Clinicians looking after the patient, irrespective of whether they support or do not support the provision of assisted dying, would continue with their duty of care to the patient and family throughout the process. Thus, the patient would continue to have their usual clinicians look after them, as always, while in parallel they could be assessed for eligibility against the criteria to be established in a statutory code of practice.
Let me explain: Amendment 143 would require the independent commissioner to support the new multidisciplinary panel workings, retain records for at least 10 years, support research and report to Parliament. Amendment 266 would ensure the panel members’ independence. Amendment 192 would signpost the person to the panel, because an assisted death is not a medical treatment. The person can obtain accurate, up-to-date information including, in Amendment 232, how to initiate the process.
Amendments 333 and 334 describe the panel’s make-up and its process. The panel would have a lawyer, a social worker or psychologist, a specialist in end-of-life care—all of whom would have at least 10 years’ clinical experience—and an administrator, plus a consultant specialist in the disease of the person and, if required, the option to co-opt up to seven members. Their statutory duties relate to licensing, or declining, the provision of lethal drugs or poisonous substances. They can refer to the High Court if in doubt. Amendment 233 would clarify that two panel members conducting a documented hearing must go to the patient.
The proposed new clause in Amendment 615 explains how the assisted dying service that comes into operation when a person’s assisted death has been approved would execute its functions in complying with a person’s wishes, including the safe transport of dispensed substances. Amendment 551 describes a neutral professional of experience who, once an assisted death was approved, could help the patient by ensuring that all correct processes were followed, deal with complications, collect all data and notify relevant persons of the death. This would avoid the difficulty of a doctor being tied up waiting for the person to die after ingesting the lethal drugs. The Oregon data shows that sometimes this can be prolonged.
Amendments 552 and 702 would determine a designated regional pharmacy to link to the assisted dying service to improve safety in the dispensing and transport of lethal drugs or other poisons and the disposal of any unused substances. Amendment 552A in the name of my noble friend Lady Hollins improves my Amendment 552 by seeking to ensure compliance with regulatory safeguards.
Amendments 704 to 706 relate to the limits on regulation-making powers, and Amendment 707 covers devices. We do not know what these devices are, but they are referred to in the Bill. Amendment 698 would require all lethal substances to be compliant with MHRA regulations and the Misuse of Drugs Act. Amendments 556 and 643 would require the GP to be notified of the process. Amendment 654 would ensure completeness. Amendments 667, 760, 761 and 767 would make it clear that the involvement of a health or social care professional in the assisted death service was separate from their health or social care employment and that their employer must know of their involvement. This is a separate service that must not jeopardise the care of other patients.
However, Amendment 710 to the clause on the regulation of approved substances would give effect to the recommendation of the Delegated Powers and Regulatory Reform Committee, on which I sit—although I should say that I am not speaking on behalf of the committee—to remove the most sweeping of the Henry VIII powers in the Bill. I do not consider the amendment of the noble and learned Lord, the sponsor, to my amendment to be adequate. Others may wish to comment.
All my remaining 56 amendments in this group are consequential and have been written to ensure that there is clarity throughout the Bill as to the effect of these changes. This is not vexatious.
Lord Falconer of Thoroton (Lab)
I am grateful to the noble Baroness for describing her scheme. Could she explain to the House what eligibility requirements would need to be satisfied in order to give a certificate and where one can find them in her amendments? Secondly, could she explain what the role of the High Court is?
Baroness Finlay of Llandaff (CB)
My Lords, first, I asked noble Lords to wait until I had completed. Secondly, I apologise to the House if I cough and my voice gives up in the process—so be it. Thirdly, if these amendments were all written into the Bill, which is what I am trying to do, the noble and learned Lord would see that the eligibility criteria would remain as he has put them in the Bill.
Let me summarise. A person wanting to seek an assisted death would be signposted to the panel for their area. The panel would give them accurate information and, if they wished to apply, they would be helped to ask for their clinical record to be available to the panel to assess all information. Normally, two panel members would meet the person, without pressure, listen to them, assess capacity and, if they agreed, advise the panel, who would decide whether to issue a licence to end life. The navigator would then make sure that lethal drugs were available to the person at the time of the person’s choosing, collect them from the designated pharmacy and deliver and oversee the whole process, documenting it carefully. If the person changed their mind, unused drugs would be removed by the navigator. If the person died, the navigator would verify, not certify, death and ensure that all who needed to be informed were duly and sensitively informed of the death. But throughout the initial information-seeking and assessment, the period of reflection and the assisted death being arranged, the person’s health and social care would continue in parallel—it would not be diverted away from its core role in care.
Let me illustrate. Thirty-six years ago, a GP referred a distraught young man whose prognosis, as estimated by the GP, a surgeon and an oncologist, was about three months. The GP said, “He is the most clear-cut case for euthanasia I have ever seen”. The man was in total pain and desperate for lethal drugs, and, with his youngest child only six weeks old, his care was challenging, particularly in the first fortnight. Eleven years after that visit, and after many periods of complex care, David phoned me. His beautiful young wife was dying of advanced cancer. By then a wheelchair user, he and his three children were with her in the hospice as she died.
Lord Markham (Con)
As requested, I was waiting until the noble Baroness had moved her amendment—
The Deputy Chairman of Committees (Viscount Stansgate) (Lab)
The noble Baroness has moved her amendment.
Lord Markham (Con)
I was trying to respond to the noble Baroness’s request not to be intervened on during her speech, but I have some questions on what she was talking about. I am now concerned that she will not have the opportunity to answer them.
Lord Markham (Con)
I thank noble Lords. I totally appreciate that the noble Baroness’s intention in all this is to try to make the process as robust as possible and she gave a very moving example of why she believes in it. But surely the people best placed to give evidence and understand the situation or the capacity of the person involved—their circumstances and whether there is any coercion—are the very people who she is suggesting should not be part of that panel, namely the health professionals and doctors involved. I am trying to understand why the noble Baroness would not want to involve those professionals who are closest to the case.
Baroness Finlay of Llandaff (CB)
Unfortunately, I am not sure that the noble Lord heard me right. The panels that we discussed previously did not include the treating clinicians—they were to look at the evidence brought to them. In the panel structure that I am proposing, the panel would have access to all the patient’s notes—with their permission—all their investigations, the full assessment of capacity and all other aspects that would be happening in routine practice during the patient’s care.
Concerns over the patient’s family and behaviours during the course of their illness would be documented in the clinical record, along with the criteria on which the diagnosis was made, and that clinical record would be available to the panel. That is why I have suggested that there needs to be an expert with knowledge of the specific disease afflicting the person who is seeking an assisted death. There are many rare conditions in medicine; common things occur commonly, but rare things are not that uncommon, and it is quite common for there to be a misdiagnosis that may lead to the patient making a decision based on the fallacy that they have an illness they may even have been treated for. We heard evidence in a previous Select Committee that, at post-mortem, around 5% of people are found to have died of something different from what had been recorded on the death certificate, suggesting that misdiagnosis is, sadly, not a very rare occurrence.
Lord Markham (Con)
I was specifically referring to:
“The person’s health or social care professional cannot participate in any part of the assessment for a person’s request of an assisted death”.
That is the point I am trying to understand. Yes, unfortunately there are cases of misdiagnosis—the 5% that noble Baroness mentioned—but 95% of the time these people are the best qualified to make an assessment, so I am trying to understand why we would not want them involved.
Baroness Finlay of Llandaff (CB)
They will not be involved in the judgment as to whether the person is eligible for lethal drugs; they are providing their clinical expertise and knowledge. It is the panel who, separately, independently and through a process that can be completely scrutinised and documented, would make that assessment. That would mean that the patient’s care could not be contaminated by pressures causing the doctor to be burnt out, financial pressures on the system in which that patient is being treated, or even administrative pressures, such as the patient’s discharge becoming difficult and the hospital needing beds because patients are being treated in corridors—which we know is happening all the time. It provides separation and a degree of clarity over the assessment and judgment.
Baroness Cass (CB)
To clarify, whether we take the system proposed by my noble friend or the original system with the series of doctors, it is very unlikely under any circumstance that the clinician who is providing primary care for the patient will also be in one of those formal roles specified by the Bill. The reason is that, as we have discussed, people will need to opt in to that kind of role and have very specific training for it. Given the number of people who are predicted to be required to grant an assisted death, that will be quite a small cadre of clinicians. Therefore, although I understand the aspiration of the sponsor in the other place, and certain Members here, for there to be close integration between the team providing normal care and those involved in the dying process, in practice I do not see how that would be feasible in either system.
Baroness Murphy (CB)
My Lords, I oppose the view of the noble Baroness, Lady Finlay, that we should have a completely separate service. That would target and isolate people who are dying. They will wish to be supported by the people who they have known through the course of their illness, so it is crucial that they be seen and examined by those people and not moved to another place. Yes, there will perhaps be separate people who take on this role, and they should be properly qualified and discuss it with the panel, but it is utterly crucial that, when patients are in the process of dying, we do not separate and reject their carers, who should be part of the palliative care provided to them.
In other countries, assisted dying usually happens as part of a palliative care service. That is how it is done, very successfully, in Oregon and Washington. We should not separate carers who are there to support patients during this process. These little nitpicking changes to the Bill will just make it worse.
Lord Deben (Con)
My Lords, I was not going to speak on this, but the last speaker has led me to do so. To describe the care with which this proposal has been put forward as “nitpicking” is frankly unacceptable. The noble Baroness should not have said that. The reason why this has been brought forward is that many of us feel that we should take seriously the pressures on the people who will have to carry out these arrangements, all of whom, either in principle or because of the nature of the Bill, have objections to the Bill, so one tries to find answers.
One of my sadnesses is that the sponsor of the Bill has so far not met the questions put forward by the Royal Colleges or—I say this to the noble Baroness—the committees of this House, which have suggested that the fact that this Bill is so unclear on so many things makes it unacceptable legislation, and that we need to be much more precise and much less vague.
Baroness Murphy (CB)
The fact of the matter is that many of the things we are discussing would, in normal medical and social legislation, be contained in codes of practice. They will certainly need to be worked up in great detail for some of these issues to be covered, but it is not necessary to put them in primary legislation. For example, the carting of medication around between a pharmacy and a doctor is in a code of practice that is quite straightforward. I agree that that needs to be done in detail so that it can be monitored and practitioners who are implementing the legislation can do it with confidence. There is no good in putting it in primary legislation that will inevitably change when processes and habits change.
Lord Deben (Con)
That may well be the view of the noble Baroness, but it is not the view of the Royal Colleges, and it is not the view of the Select Committees of this House that have looked at this. It is perfectly reasonable for me to suggest that there is an alternative, and I am suggesting an alternative to the noble Baroness. I am still sorry that she should think the word “nitpicking” a suitable phrase to describe people who have spent their lives working on these issues and are trying to find answers to the problems that have clearly been raised by this Bill. Most of us who have views on this subject have been extremely careful in the language that we have used. We have respected the views of those with whom we fundamentally disagree, and we have done so with great care.
I will explain why I think we should consider these amendments very carefully. I am not expert enough to say that this or that bit is the right answer to this, but this is precisely the kind of information that ought to be in the Bill, but which is not. These are the answers that most people who are expert in this matter, and have given evidence to the various Select Committees, have asked for. This should not have been needed as an amendment; it should have been presented by the noble and learned Lord and those who are putting forward this Bill, because we need to know this before we vote on it, not afterwards. That is the problem that the noble Baroness is avoiding. We are being asked to pass a Bill and leave so much to things that will be done in a way we have absolutely no knowledge of.
There is a second reason why it is important to take very seriously these amendments: the relationship between patient and doctor. My one expertise is from having spent nearly 40 years as a Member of Parliament, representing a constituency. It is all very well for those who are perhaps removed from the generality of the population, but one thing you learn in your weekly surgery, and from going around your constituency, is the degree of fear that people have of doctors and hospitals. Anyone who is concerned about this from a pastoral point of view—here is a non-religious element for bishops and ministers of all sorts—knows very well that this is a fundamental fact that you find everywhere. One problem, even for those who are in favour of the principle of the Bill, is that it increases that fear among many people. Therefore, it is hugely important to ensure that there is a service that is clearly separate from and unconnected in any way—except that necessary connection to which the noble Baroness pointed—with the care that has taken place.
Lord Deben (Con)
I will give way in a moment but I wish to finish my sentence—and to being a society that cares for people right to the end of their lives. I know what sort of society I want to live in: one that looks after the most vulnerable at their most vulnerable time. If they are to be given that alternative, it is clearly unconnected with the fundamental moral duty of a society: to look after those who cannot look after themselves.
Lord Pannick (CB)
How are we looking after the most vulnerable at the most vulnerable time of their life if we isolate them from those who have given them care in the most difficult time of their life, when they are about to die?
Lord Deben (Con)
The proposal here is not isolating them in all the things that matter; it is doing something quite different. It is saying that those who are looking after them continue to look after them and give the information that is necessary for those who will make judgments to make those judgments. It is making a distinction between care—that is, the people we are talking about—and a decision about life and death. That decision should not be made by the people who are looking after them, but the people who are looking after them should provide information to those who are making an objective decision. That is why putting carefulness at the heart of what we do, and putting the rest to one side, is a proper way of dealing with it.
Lord Markham (Con)
The noble Lord was at pains to say that he felt that assisted dying was somehow not a compassionate part of care, but will he accept that, for some people, it is the true definition of compassion? Noble Lords have heard me say on many occasions that, when my mother was terminally ill and it was suggested that we might help her take an earlier train home, that was absolutely the compassionate thing, which she and others wanted. For all the supporters of assisted dying in this House and in this country, which is about 70% of people of every religion and including those with a disability—every group we talk about—it is because they believe that that is the most compassionate thing they can do: to give the person the autonomy of their own choice of how they want to end their suffering.
Lord Deben (Con)
One problem with using the word “compassionate” is that it is a mechanism for suggesting that one’s own answers to these issues are compassionate and other people’s are not. I happen to think that the most compassionate way of dealing with this is, first, to have a society in which we have palliative care of the highest standard for everybody. Then, if you have that, it may be that some would believe that it would be better for them to make a choice to kill themselves. This is what we are debating: not the principle but how you do this. I have given a clear statement of what my principled views are, but I am talking now about the facts of this issue. First, you have to show that you have proper palliative care. Secondly, you have to accept that there will be, in accordance with the Bill, the opportunity for people to decide. Who should make that decision? The problem is that, if you have proper palliative care, that will continue—or it ought to continue. All the information that those people have should be given to the people who are making that decision.
My noble friend is absolutely right: there are those who feel that this is a compassionate answer. I suggest that, if they feel that, the opportunity to make that choice should not be in the hands of people who are actually looking after them. I have tried to explain that, first, it makes many people more frightened of hospitals; secondly, it confuses their relationship with doctors; and, thirdly, it is very difficult to see that all those people who are looking after people will want to be involved in this. Fourthly, this begins to get closer to what the people who support the Bill demand should be carried through. We are trying to find an answer and, if the sponsors of the Bill do not like this particular answer, perhaps they can come forward with a proper programme for how to do this, instead of leaving it to the vagueness which our own Select Committee said was unacceptable.
Baroness Jay of Paddington (Lab)
My Lords, it seems to have become a regular feature of these Committee sittings that the noble Lord, Lord Deben, and I disagree—but I think we disagree with courtesy, and I hope we disagree on the basis of real understanding. However, it is extraordinary that we have got to this stage in the Bill and he does not seem to accept that those on this side of the House—or rather, those of us who support the Bill, as it is not an “on this side of the House” issue—are in favour of palliative care. We have always been in favour of palliative care and have always said that the two go together.
I have not had the honour of serving in the other place, as the noble Lord has done, but I have had experience of sitting on other Select Committees of your Lordships’ House on this particular matter—not the immediately past one, but on others—where we looked in detail and travelled to those places where assisted dying is in place. There is absolutely no evidence that assisted dying, when introduced, does anything other than improve palliative care, because it improves the understanding that people have of discussions about end-of-life care, death and the general issue, which can be debated more openly.
I am not trying to take the point made by the noble Baroness, Lady Murphy, any further, but one of the things that has concerned us in this Committee is that there is so much emphasis in so many of these amendments on the detailed administration—the noble Baroness used the word “nitpicking”, which noble Lords did not like—and the very small print, and so much less focus on those people who are actually going to hope to take advantage of this legislation: patients and people who are dying, and people who are reaching the end of their life. I remember that in a previous debate my noble friend Lady Hayter said this, but I have been rather shocked by the emphasis, for example, on the bureaucracy and structure of the commission and so on, which has not emphasised the position of those people who are dying.
Baroness Butler-Sloss (CB)
My Lords, I remind the House of the extraordinary common sense of the noble Baroness, Lady Cass, who pointed out that there may well be a lack of suitable doctors of one sort or another, and they may have to put up with what actually is the reality.
Baroness Hollins (CB)
My Lords, I fully endorse the amendments from my noble friend Lady Finlay, and I think they deserve rereading. There has been a huge misunderstanding of what she actually described. This was not something drafted on the back of an envelope: it is based on years of work spent thinking about how it could work. Her amendments simplify and strengthen the Bill, making the whole process more transparent and more likely to be subject to evidence-based improvement in future, if an assisted death service is approved. My noble friend’s amendments may go some way to addressing the continuing concerns of the medical royal colleges.
However, my main amendments in this group concern the regulation of substances proposed for use in assisted dying. I recently co-authored an editorial in BMJ Supportive and Palliative Care called Untested, Unlicensed, Unregulated: Prescribing and Oversight Issues in Physician-assisted Dying/Suicide. I thank the noble and learned Lord, Lord Falconer, for tabling amendments that attempt to address these matters. My amendments would amend his Amendments 624A and 708A.
In this country, drugs intended for clinical use are subject to evaluation and oversight by the Medicines and Healthcare Products Regulatory Agency, the MHRA, which assesses their efficacy, quality and safety before they can be licensed for human use. These frameworks were specifically designed to ensure that drugs used in healthcare meet appropriate evidence and safety standards before they reach patients. I ask the noble and learned Lord why he is reluctant to rely on the established regulatory framework, and instead proposes the development of a separate framework specifically for substances used in assisted dying. My amendments to his amendments, as well as my Amendments 699 and 709, propose that the Secretary of State, when specifying a substance in regulations, must have regard to recommendations of the MHRA and that the established committee is required to report to the MHRA.
Baroness Lawlor (Con)
My Lords, mine is an amendment to Amendment 552A from the noble Baroness, Lady Hollins, which itself is an amendment to Amendment 552 from the noble Baroness, Lady Finlay. I think that this is a very good group of amendments: they avoid the potential conflict of interest about which we have heard and they make things clear in law. To answer the noble Baronesses, Lady Murphy and Lady Jay, I prefer a law made in this House to one made by the gentleman in Whitehall down the line. I shall speak to these two amendments, to which mine is a further amendment.
Amendment 552 would require that the provision of lethal substances through pharmacies is restricted to a limited number of designated pharmacies. The substance is documented, kept under lock and key and, when unused, disposed of safely. Amendment 552A from the noble Baroness, Lady Hollins, which she introduced so well, would restrict the pharmacies further to only dispensing and storing the drug, not preparing it on the premises, under MHRA rules. My amendment would prohibit pharmacies from stockpiling or storing any quantity of lethal substance in the pharmacy: it must be ordered on a case-by-case basis.
At present, the Bill has no chain of custody for the secure storage of these lethal drugs, even though some that we know are used for assisted dying, such as benzodiazepine, have a black-market use. The measures in these three amendments go some way to addressing this problem of secure storage. I draw particular attention to the role of the Medicines and Healthcare products Regulatory Agency, the MHRA, specified by Amendment 552A from the noble Baroness, Lady Hollins. It is the body that regulates, licenses, inspects and enforces the rules for pharmacies and manufacturers, on which I have a later amendment to Clause 37. Under this body, there is an existing legal framework for looking after drugs when they go to pharmacies—the 2012 regulations outlining the legal framework for distribution and storage and the directive to prevent counterfeit medicines from entering the supply chain.
Even the tightest regulatory system is not foolproof, so other safeguards are needed to protect against theft from the premises and to ensure security so that the drug is not counterfeited. The MRHA had a great victory last month in seizing thousands of counterfeit anti-fat drugs, the drugs that people take to help them to slim. That was a very good operation which turned up trumps, linking a Lincolnshire raid on an illicit drug-making factory to one in Nottingham. The MRHA works with the police. It can seize, check and license. However, we need even greater security, because of thefts from pharmacies, a known address, and it would be better to limit the storage of these lethal substances in the pharmacies to those ordered on a case-by-case basis. Do not tell me that this does not happen now: if I have to go to Boots for a prescription, sometimes they have to order it. In the matter of assisted suicide, if there is a delay, that may help the patient to reflect further and perhaps have a second opinion.
Baroness Grey-Thompson (CB)
My Lords, I shall speak to two amendments in this group, Amendments 701 and 703. The noble Lord, Lord Murray of Blidworth, raised some very valid points in the earlier group on local variation. The method that my noble friend Lady Finlay has raised seeks to address some of the issues that many of us have with the Bill, in terms of having a centralised process. We need to find a way to avoid doctor shopping. The reality is that medical issues, legal issues, social issues and economic issues are not separate; they all intertwine with each other. What my noble friend has suggested is a clearer process and fills some of the gap, because there are problems with reporting in the Bill as it stands and there needs to be strict data collection. The commissioner cannot report what the commissioner does not know, and Parliament can regulate only through reporting requirements.
The noble Lord, Lord Deben, spoke about palliative care professionals. They are one of the groups that have consistently raised concerns about this Bill. We had an interesting debate about whether we should have a service separate from the NHS. It would be my preference to have something unconnected. That does not mean that doctors caring for patients cannot communicate and still provide care for somebody who wants to enter this process, but we have to think about the possibility that there may be some doctors who, for various conscientious reasons of objection, may not want to have this conversation with a doctor.
My amendments are looking at clinical trials for the drugs and the regulation of approved substances. I would be interested in the noble and learned Lord’s opinion. I recognise why a clinical trial for these drugs would be very difficult, but there may be cases where people who want to request assisted suicide would be willing to have an enhanced level of study to understand how these drugs work on a patient. It is important that we understand what drugs are going to be used. In different jurisdictions around the world, there are very different combinations, often referred to as a cocktail. In effect, the patient is being given a massive overdose, because we do not know enough about how these drugs work.
Baroness Berger (Lab)
The noble Baroness, Lady Grey-Thompson, made some important points, as have been made by other noble Lords, about the drugs. Given the context of this debate, as we deliberate these amendments and later amendments, it is worth sharing that the Delegated Powers and Regulatory Reform Committee of this House, in its important report about the extension of delegated powers in the Bill—of which there are now 48—had specific concerns about substances, drugs and the detail missing from the Bill. In fact, the two specific themes that are relevant are the lack of specification of approved drugs and the lack of regulation of approved substances. The Bill currently uses two delegated powers for something that would usually be described in the Bill, but it is instead in delegated legislation. That perhaps provides some context as to why these amendments have been put forward.
Lord Empey (UUP)
My Lords, I want to deal with probing Amendments 887A and 888A, in my name. Throughout the process there has been a potential clash between what decisions might be made here and what decisions might be made in the devolved nations. In the other place, an amendment was introduced by the sponsor of the Bill as it progressed to extend certain parts of it to Northern Ireland and Scotland, as well as England and Wales. My colleagues at the other end tried to put an amendment down to probe why this was done. Unfortunately, it was not taken, so the matter was never really debated.
I remind the House that Clause 37 deals with the regulation of approved substances and devices for self-administration. It says that:
“The Secretary of State must by regulations make provision about approved substances”,
and that has the extent of the entire United Kingdom. These regulations also deal with
“the supply or offer for supply, or administration, of approved substances … the transportation, storage, handling and disposal of approved substances”,
and
“keeping records”.
It says provisions must be made
“about the manufacture, importation, preparation or assembly of approved substances … or in connection with the monitoring of matters”
and so on,
“requiring persons specified in the regulations, in specified cases, to give information to the Secretary of State”.
As things stand at the moment, there is no plan by the Northern Ireland Executive to introduce an assisted dying Bill, and there is no Private Member’s Bill currently in the Chamber. Some of these regulations would, in my view, cut across the role that is currently played by devolved Ministers and devolved departments.
This is what I am trying to get at and to probe. It does not, incidentally, confine the extent to Clause 37. In fact, other clauses extend the Bill’s extent as well—Clauses 43, 54, and 56 all apply to the whole of the United Kingdom. I do not understand that. If the noble and learned Lord could enlighten us, that would be most helpful. As I said, they are probing amendments. The point I am trying to tease out in Committee is why that was introduced if it was not in the original Bill and why that extension was made, because, as things stand, there are no plans for an assisted dying Bill in Northern Ireland—not from the Executive and there is no Private Member’s Bill currently.
I totally accept that this Parliament has the right to legislate for the entire United Kingdom, irrespective of devolution. But, at the end of the day, the Bill says:
“The Secretary of State must by regulations make provision about approved substances”.
There is no argument about it—this has to happen. The extent of those regulations would be the entire United Kingdom. Whether Northern Ireland and Scotland want it, it is going to happen, according to this clause. Why is that the case? If there is no assisted dying available—and in many cases, it would be a devolved matter anyway—why are we regulating for the provision of these substances in all parts of the United Kingdom? That is what I want to know, and I will be grateful for the noble and learned Lord’s contribution in the wind-up.
Lord Stevens of Birmingham (CB)
My Lords, I will speak briefly to two amendments in this group, the first being Amendment 334. In particular, I hope to draw the attention of the noble and learned Lord, Lord Falconer, the sponsor of the Bill, to subsection (6)(m) of the proposed new clause and ask him whether he might be inclined to look sympathetically at the proposal there, which relates to palliative care.
We have had the discussion many times in Committee about the importance of palliative care, which is a shared sense from all sides of this wider debate. Proposed new subsection (6)(m) would require that the assisted dying panel in its assessment must ascertain whether a person considering seeking an assisted death
“has experienced the involvement of a specialist palliative care team and, if not, whether this was because of availability, unsatisfactory care or patient choice”.
I would have thought that this should be acceptable to the sponsor of the Bill. Why would you not want to know whether somebody coming before an assessment panel has had access to specialist palliative care, and, if they have not, whether it is because of the concern that a lot of us have, that palliative care gaps exist right across the country? That will bring about a degree of transparency as to what is actually going on.
In a sense, the difference perhaps between those who are more optimistic and those of us who are less sanguine about the availability of palliative care just comes from the lack of transparency and the lack of a firm government commitment at this stage to funding unmet need in palliative care. Perhaps by way of analogy, we should look at what is happening in mental health services and the health professionals within it, some of whom are going to be required to support the processes set out in the Bill. We have line of sight as to what is happening on mental health spending only because of an amendment that the House of Lords inserted into the Health and Care Act 2022, which requires the Secretary of State to declare his or her hand for the upcoming year, as to what they plan on doing about the share of NHS funding going to mental health.
We found out yesterday from a Written Statement by the Health and Social Care Secretary that his plan is that the share of NHS funding going to mental health services next year should be cut, which is a pretty significant departure from the arrangement that had existed since 2015 onwards. Obviously, that has provoked a degree of concern across the NHS. We have that degree of transparency on mental health but we do not have it in respect of palliative care, and proposed new subsection (6)(m) just provides one little ray of light as to what would actually be going on in this scheme, were it to come into effect.
Lord Harper (Con)
My Lords, I will come on to the exposition by the noble Baroness, Lady Finlay, on this group of amendments shortly. I will also pick up on the important and perfectly fair point raised by the noble Baroness, Lady Jay of Paddington, following on from the speech of my noble friend Lord Deben, about what end of the telescope you are looking at this from. She was right to challenge those of us who are focusing on the safeguards. It is also important that a Bill passed by Parliament is workable.
However, there is a reason, if I may just gently say to the noble Baroness, why we are focused in the way we are. It was put extremely well by Johann Lamont, who Members opposite will know was the leader of the Scottish Labour Party between 2011 and 2014. This is in the context of the debate on a different but similar piece of legislation currently going through the Scottish Parliament. She said:
“In my time as MSP I came to appreciate the challenge of understanding that something can be of benefit to some but the unintended consequences for others matter just as much. We should not just ask how it might help some but ask what if it means undesirable results for others”.
In effect, that is the nub of what we are trying to do here.
The Bill’s proposals, perfectly understandably, are focused on those who wish to seek assisted suicide. Those of us focusing on the safeguards in the Bill are worried about all the people who may be adversely affected: the vulnerable, disabled people and—before we fixed the gap in the Bill, which took a very long time to do—those with anorexia. Those are the two perspectives, both of which are valid, and that is what the debates in your Lordships’ House are trying to reconcile in this legislation.
The other very important issue—I am pleased to see my noble friend Lord Markham in his place, because he rightly often references this—is public opinion. On an issue such as this, it is more important that Members of Parliament, including Members of this House, do what they think is right. This is a very important moral question. We should do what we think is right, explain why we are doing what we are doing and then allow ourselves to be judged. People will draw conclusions about your Lordships’ House based on how we conduct ourselves and how we debate this legislation.
Since the proponents of the Bill are often happy to quote polling, it is worth just putting on the record some recent polling by Whitestone Insight for Care Not Killing. Whitestone Insight is a member of the British Polling Council. The key findings are very relevant to this group of amendments. When the public were asked whether they would support a law that enabled patient choice if it risked harm to vulnerable people, 42% said they would oppose such a law, and only 35% said they would support it. More than twice as many respondents strongly prioritised safety over choice, rather than choice over safety, which is not the position of the noble and learned Lord, Lord Falconer, who frequently says to us that the important thing here is autonomy. That polling is important, because that is indeed the job this House is trying to do. It is about making sure that the legislation contains appropriate safeguards, so that it ends up being used only by those who have exercised a genuine wish to do so and not anybody else. That is incredibly important.
Having said that, I turn to the group of amendments put forward the noble Baroness, Lady Finlay of Llandaff. I listened very carefully to what she said. She set out a very good, workable proposition on how to ensure that such decisions are made by a genuine multidisciplinary panel that is clearly separate from the people providing care. She set that out in a detailed way and explained it very well. Noble Lords are free to disagree with her, but I do not think that anybody could reasonably argue that this has not been done in a careful and thoughtful way, informed by her years of clinical experience in palliative care. So, it behoves all of us, whether we agree with her or not, to give her proposal due weight. When the noble and learned Lord, Lord Falconer, responds, I hope he will take time to reflect on her proposal and, even if he does not agree with all of it, see if there are some things that are worthy of taking forward, from his own perspective, even if he cannot support all of them.
One of the important things the noble Baroness referred to—we have already discussed this and is not universally agreed with, but I strongly support it—is keeping the provision of assisted suicide separate from the provision of NHS care. That is very important for several reasons. Assisted suicide is not a healthcare treatment, so it is very important that it be kept separate from healthcare provision, partly for the reason set out very ably by my noble friend Lord Deben: if vulnerable people and other patients facing a terminal illness and needing palliative care think that, at some point, the people providing that care are going to try to end their life, encourage them to do so or put pressure on them to do so, the practical effect will be to put them off seeking palliative care at all.
My noble friend is right that many people fear, if they think there is going to be bad news, approaching doctors and healthcare professionals. Those involved in healthcare delivery know that many people seek medical treatment too late. Speaking as a man, men are particularly bad at going to see the doctor—far worse than women—leaving it until it is too late. That is something we should not be encouraging. We should be trying to make sure that people are comfortable in seeking support. It is important that, when they seek palliative care, they are clear about what they are getting and are not confused.
The points made by the noble Lord, Lord Stevens of Birmingham, are informed by his enormous experience in running the National Health Service. Clearly, in this country, there is an enormous amount of support for the principles of the NHS, whatever the level of performance is at any given time. It is also clear that the founding principles of the NHS would need to be altered to be able to deliver assisted suicide. I personally think that it would be best not to alter the founding principles of the NHS in order to do that. If you are going to do it, that should be an explicit decision of Parliament; it should not be a decision taken by Ministers.
If it is the wish, as I believe it is, of the sponsor of the Bill, the noble and learned Lord, Lord Falconer, to have this as an NHS service, it should be explicitly written into primary legislation, with the necessary consequential changes to what the NHS does. That should be a clear-eyed decision that Parliament takes, with all the consequences that flow from it—we have debated those, and I will not repeat them here—such as challenges about whether decisions will be taken because of funding and resource reasons, and about pushing people down one path rather than another. We have heard examples in previous debates where that has already happened, such as the Liverpool care pathway. For those reasons, I support the amendments set out so ably by the noble Baroness, Lady Finlay. The points put forward by the noble Lord, Lord Stevens, are also very worthy of consideration.
Finally, I return to a point I made earlier in supporting the noble Baroness, Lady Berger. I accept that the noble and learned Lord, Lord Falconer, does not agree with everything we say, but I hope he accepts that all the royal colleges he referenced, having looked at the Bill, do not take a view on the principle, but do not support the legislation in its current form. So, even if the noble and learned Lord is not minded to support these measures, I hope he will at least listen to the concerns other people have expressed and take these as practical mechanisms to try to improve both the Bill and its workability. I hope he accepts them in that spirit.
Lord McColl of Dulwich (Con)
Is the noble Lord aware of a rather alarming story from Holland that is relevant to the separation of the two services that he mentioned? A gentleman witnessed the euthanasia of his mother. It was done by an anaesthetist, who came in and said to the lady, “Now, I’m just going to put a needle into your vein and inject this medicine, and you’ll go off into a wonderful sleep and have no further worries”. A month later, the gentleman was involved in a road traffic accident, and he had to have an emergency operation in that very hospital. He was waiting for the anaesthetist to come in, and he was horrified, because it was the same anaesthetist that had dispatched his mother. The anaesthetist used the same words: “I’m just going to put a needle into your vein and give you an injection and you’ll go off into a deep sleep with no worries”.
Lord Harper (Con)
I am grateful to the noble Lord for that information, but I am conscious that, because of his intervention, I am well over time. I am going to conclude my remarks there and allow the Committee to hear from the next speaker in the debate.
The Earl of Effingham (Con)
My Lords, these amendments make fundamental changes to the process by which a person is able to access assistance with ending their life under the Bill. It is clear that the noble Baroness, Lady Finlay, has put great care and thought into these proposals, drawing on her decades-long, extensive experience in medicine. The noble Baroness, Lady Hollins, put it so well when she said that “years of work” and thinking on how this will work have been done by the noble Baroness, Lady Finlay.
Amendment 333 replaces the doctor’s assessment with the multidisciplinary panel process, bringing skills and knowledge from the health sector, the social work sector and the justice sector, including 10 years of minimum relevant experience. Our understanding is that the noble Baroness, Lady Finlay, is seeking to strengthen the safeguards for people who are seeking an assisted death, which was also referenced by the noble Lord, Lord Harper.
We know from previous groups already debated, and indeed this very group, that many noble Lords are profoundly concerned about vulnerable individuals. On the basis of what appears prima facie to be a widespread sentiment in your Lordships’ House, may we ask whether the noble and learned Lord, Lord Falconer, agrees that potentially more can be done to safeguard those vulnerable people and ensure that they are not pressured into seeking assistance under the Bill?
If the noble and learned Lord were to acknowledge these concerns and accept relevant amendments, will the Minister, the noble Baroness, Lady Blake, please set out any assessment that the Government may have researched regarding the practical solutions required to implement the proposals of the noble Baroness, Lady Finlay—points touched on by the noble Baroness, Lady Cass, and the noble and learned Baroness, Lady Butler-Sloss? Will the Minister also give your Lordships’ House a sense of the Government’s view on the balance that they will need to strike between the risks of a vulnerable individual dying in a circumstance where their capacity, understanding or will might be in doubt versus the practicality of delivering an assisted dying service?
Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)
My Lords, I thank all noble Lords for taking part in the debate so far today. As we know, this group of amendments focuses on two core subjects: first, adding a new multidisciplinary panel process into the Bill, tabled by the noble Baroness, Lady Finlay, and secondly, amendments in relation to approved substances. This is a large group of amendments. As ever, my comments will be limited to amendments where the Government have major legal or technical workability concerns.
On the suite of amendments tabled by the noble Baroness, Lady Finlay, it is the Government’s view that, logically, these amendments stand or fall together, as they are a systemic change to the Bill. The amendments would introduce a new system of “assisted dying panels”, distinct from the existing assisted dying review panel in the Bill. These panels would receive and consider requests for assistance as part of the first declaration process, replacing the role of the co-ordinating doctor. The amendments would also introduce the concepts of “licensed assisted dying services”, “navigators for assisted dying”, and “designated” pharmacies. These are rightly policy choices and matters for the sponsor and for Parliament to decide on.
However, noble Lords may wish to note that it is the Government’s view that this package of amendments would lead to major technical, legal or operational workability concerns. The amendments introduce new concepts that would require significant further work to ensure that the policy intent was clearly understood and could work with the rest of the Bill.
Lord Deben (Con)
The point about the drugs and their control will surely have to be dealt with by the Government, whatever happens. What assessment have they made—surely they ought to make it in any circumstances—about how that should be done, what it would cost and how one can protect people from dangers which have happened? It seems to me that that is not a policy matter but a practical matter which we ought to understand from the Government.
Baroness Blake of Leeds (Lab)
I can only refer the noble Lord to previous comments that the details around these matters will be considered when progress is made. It is not appropriate for those matters of detail to be considered now. The noble Lord is shaking his head, but I think we are very clear about the responsibility of government at this moment in time, and it will be for my noble and learned friend to respond to the detail of policy as we go forward.
Lord Deben (Con)
If the Minister does not mind me saying so, this is a real problem. If we do not know—because only the Government can tell us—what the mechanism whereby drugs would be dealt with would be, how can we make decisions about this? We really need to know from the Government, under the present Bill, what in general the way in which they will deal with this is, otherwise we will have to put it into the Bill because we do not know. It really is important for the Government to help us.
Baroness Blake of Leeds (Lab)
I completely recognise the noble Lord’s strength of feeling, which he has expressed on many occasions. However, I just reaffirm that we would go through a process for determining the mechanism around the matters that he raises should the Bill progress, and that is a clear point from the Government in response to his—
Lord Winston (Lab)
I wonder whether my noble friend the Minister might be able to help me. I presume that the Government would look at the extensive literature that is available in medical and scientific journals on the action, tests and usage of these drugs in a number of sovereignties where they have been used successfully for assisted dying.
Baroness Blake of Leeds (Lab)
As always, my noble friend raises an important point. I will go on to talk about the whole issue of substances, so if I do not address the points he raised, I will be happy to speak or write to him afterwards to make sure that he has had the clarification he requires.
Lord Harper (Con)
I want to press the Minister a little for an answer, not necessarily this minute, on the point that my noble friend Lord Deben makes. It is perfectly proper for matters of genuine detail to be dealt with after Parliament has passed primary legislation; there are many pieces of legislation where we do that. However, there are quite a lot of issues which are not set out in the legislation—this is part of the concern that the Delegated Powers Committee set out—and they are not, by any stretch of the imagination, details. They are fundamentally important issues around, in this case, the substances. Can the Minister therefore take away the idea that if the Government cannot answer on some of these really big issues that are left not set out in the legislation, it will make it incredibly difficult, even for people who support the principle of the legislation, to support it in practice? It would be more helpful if, on these bigger issues, the Government could set out what their position is.
Baroness Blake of Leeds (Lab)
I just reinforce to the noble Lord that it would be completely wrong to pre-empt the decisions of Parliament—I am sure he is fully aware of that. I just want to give reassurance that, across all these issues, evidence would be considered in the usual way in considering the substances to be used should the Bill pass. I think I have been exceptionally clear on this, and we need to move forward.
Given the size of the group, I reaffirm that it would be impossible to address each amendment specifically, but the broad thematic workability concern is that the use of unclear and ambiguous language could result in unworkable duties and increased risk of legal challenge.
I turn to amendments tabled in relation to the regulation of approved substances and clinical trials. Many of these amendments are policy choices and are therefore a matter for the sponsor and for Parliament. However, noble Lords may wish to note that many of these amendments also introduce new concepts that would require significant work to ensure the policy intent is clearly understood and that they are coherent for the rest of the Bill. I draw noble Lords’ attention to a number of amendments where the Government have major workability concerns.
Amendments 701 and 713, tabled by the noble Baronesses, Lady Grey-Thompson and Lady Hollins, relate to clinical trials for approved substances. First, these amendments could delay implementation of the Bill until a clinical trial or evidence-gathering study is completed, which could make implementation within the four-year timeframe difficult. Noble Lords may wish to be aware that these amendments could create workability concerns relating to the ethical and regulatory challenges for clinical trial processes for approved substances.
Baroness O’Loan (CB)
Does the Minister think it is ethical and right to administer drugs that have not been cleared through a normal process and to expedite their use? Surely we have to wait until the drugs have been properly tested.
Baroness Blake of Leeds (Lab)
I do not think it would be appropriate to comment on that level of detail at this point.
Baroness Blake of Leeds (Lab)
I hope that noble Lords can listen to what I have to say. The clinical trial processes for approved substances are, of course, an essential part as we move forward.
Amendment 703, also tabled by the noble Baroness, Lady Grey-Thompson, would not be workable in its current form. It would require a clinical trial process that would delay implementation. The effect of the amendment is unpredictable as it is unclear whether the intention of proposed new paragraph (d) is to regulate the substances themselves, the approval process or the body responsible for oversight.
Amendments 704, 705, 698, 708 and 710 were tabled by the noble Baroness, Lady Finlay. Amendments 704 and 705 seek to amend the powers under Clause 37. These amendments would limit Clause 37(4), so that regulations may apply only to substances that have received approval in the Human Medicines Regulations 2012—the HMRs. Those regulations provide for licensing, which is a marketing authorisation of medicinal products and not approval. This is a different legal concept. Additionally, if the amendment is read as requiring licensing under the HMRs specifically for assisted dying, this would be operationally complex to design and implement.
Amendment 698 would require any regulations made under Clause 37 to be consistent with the existing rules for medicine overseen by the MHRA and for controlled drugs overseen by the Home Office. We believe that this requirement, in practice, is unworkable. The substances that may be approved under Clause 27 will not necessarily be medicines licensed for this indication or controlled drugs. If a substance falls outside those regimes, it would be impossible to make regulations that are genuinely consistent with them. This amendment may therefore place requirements on the Secretary of State that cannot be met.
Amendment 708 would require that, for the Secretary of State to make provision by regulation to allow for the use of devices to enable assisted dying, such devices must have Medicines and Healthcare products Regulatory Agency approval. This approach does not align with how much the regulatory system for medical devices currently operates. Although the MHRA is responsible for regulating the UK medical devices market and requires such devices to be registered with the agency, it does not approve or license medical devices individually. Medical devices are placed on the market following conformity assessment under the UK Medical Devices Regulations 2002, usually carried out by independent approved bodies.
Baroness Lawlor (Con)
May I just clarify? I think that response was in response to my amendments to Clause 37 for the manufacture of these products. However, Amendment 552B is in respect of the limited number of designated pharmacies which were distributing these drugs. In Amendment 552, the noble Baroness, Lady Finlay, referred to three designated pharmacies. The noble Baroness, Lady Hollins, wanted those three pharmacies to be limited to dispensing and storing but not supplying. Mine was simply an amendment to that from the noble Baroness, Lady Hollins, to say that they should be ordered in on a case-by-case basis; it was not an amendment to Clause 37 at this stage.
Baroness Blake of Leeds (Lab)
Apologies; I thank the noble Baroness for her clarification on that point. I was mid-sentence, so forgive me if I repeat myself. Limiting the number of manufacturers based on prior prescriptions is operationally impractical and could risk supply shortages.
I turn to Amendment 713A from the noble Baroness, Lady Hollins. This amendment appears to seek to introduce a parallel approvals regime, but it does not specify how that should relate to the Secretary of State’s separate power.
Baroness O’Loan (CB)
I just want to ask the Minister about her response to the noble Baroness, Lady Lawlor. She was, I think, saying to the Committee that limiting the places at which you can get the lethal drugs that will be required for death would inhibit the process. I say to her that there are situations in which the supply of medication is limited in exactly that way. Some years ago, I had toxoplasmosis, and the only place the drug could be administered then was Scotland. So it is possible; such systems exist now. I do not quite understand why drugs to treat toxoplasmosis have to be controlled, but the suggestion is that drugs that will kill people do not.
Baroness Blake of Leeds (Lab)
I would be happy to write to the noble Baronesses with clarification on that point; I thank them for their interventions.
As I was saying, Amendment 713A appears to introduce a parallel approvals regime, but it does not specify how that should relate to the Secretary of State’s separate power under Clause 27 to specify the list of approved substances. This could lead to operational uncertainty. Although the amendment could be delivered, establishing a dedicated regulatory pathway would likely require adjustments to the MHRA’s remit and internal processes.
I turn finally to Amendments 887A and 888A from the noble Lord, Lord Empey, which would amend Clause 57 by removing the reference to Northern Ireland. This would mean that regulations made under Clause 37 would not extend to or apply in Northern Ireland. As medicines regulations are UK-wide, should this amendment be accepted, it might create legislative divergence across the UK. This does not mean that assisted dying would be legalised in Northern Ireland.
As noble Lords will be aware, many of these amendments have not had technical drafting support from officials. If your Lordships support these amendments, the Government will need to revisit the drafting of amendments and the Bill as a whole to ensure that they are workable and coherent, both internally and with the wider statute book.
Lord Falconer of Thoroton (Lab)
My Lords, I am grateful to the noble Lords who have participated in this debate. I will divide my responses thematically under four headings.
I turn first to the new scheme proposed by noble Baroness, Lady Finlay of Llandaff, in relation to how one deals with safeguarding here. The scheme would involve not having two doctors, then the panel, and then a doctor again at the point of administration; instead, the person who wants an assisted death would have to apply to a separate organisation, where a panel of up to seven people would consider their application. That panel would consider whether the safeguards are satisfied, as well as a number of other questions. If it were satisfied, it would give a provisional certificate of eligibility. The drugs could not then be delivered—I use that word without meaning “delivered to the person”—because an application for fast-track care and support would have to be made. If that application were granted, then—and only then—could the drugs be administered.
If there were doubt in the mind of the seven-person panel, the matter would be referred to the High Court. The provisions put forward by the noble Baroness do not specify what the role of the High Court is. The panel has to satisfy itself that a number of questions have been addressed, although those questions do not determine whether or not somebody is entitled to an assisted death. That is the proposal from the noble Baroness, Lady Finlay. The current proposal in the Bill is that the co-ordinating doctor has to satisfy themselves of seven or eight strict matters, and then the panel considers the case. The co-ordinating doctor then, satisfied that the conditions have been met, provides assistance to the person who wants to die.
Underlying the distinction between the two proposals is the wish of the noble Baroness that the whole process of assisted dying be kept completely separate from the care that is being given to the patient. I am sorry that neither the noble Baroness, Lady Cass, nor the noble and learned Baroness, Lady Butler-Sloss, is here, for they both highlighted that, under the scheme in the Bill, the people who will be going through the checks—the co-ordinating doctor and the independent doctor—will have to have opted in to specialist training. To some extent, they will be specialists themselves in assisted dying.
If one wants to give as much help as possible to the person who wants an assisted death, it must be better that the person providing the assistance can work within the team that is already providing care. It does not mean that they should be in any way pressing for a particular result. But, if we introduce assisted dying, and we want somebody to do the assessment and give the assistance, we are probably going to have ask somebody with some experience. We do not want to force the patient into an over-complex, entirely separate process.
I note that the noble Lord, Lord Stevens of Birmingham, said that he wants the process kept separate from the NHS, but I am absolutely sure that he does not want the patient to embark on a very complex bureaucratic procedure. He has given reasons why he wants it kept separate from the NHS. As sponsor of the Bill, whether it is precisely separate or not is, for me, not the key question; the key question is whether, if a patient wants an assisted death, there is a practical and safe way of doing it that does not place an undue burden on them.
The proposal from the noble Baroness, Lady Finlay of Llandaff, is overengineered and much too separate from the care of the patient. It leaves out so many aspects. In particular, the drafting of her proposal does not indicate what her seven-person panel has to be satisfied of. The idea that seven people have to be satisfied is, in my respectful submission, much too onerous. Having two specialist doctors and a panel of three examining the case is, with respect, a much better proposal. I have thought very carefully about the noble Baroness’s proposal, but I have to say that the proposal in the Bill is so much better, so much more workable and so much more focused on the patient.
Lord Falconer of Thoroton (Lab)
May I just finish? The noble Lord, Lord Stevens, refers to proposed new paragraph (m) in the scheme. Under the scheme proposal, the panel of up to seven persons has to be satisfied, or the “assessment must ascertain”, that the person
“has experienced the involvement of a specialist palliative care team and, if not, whether this was because of availability, unsatisfactory care or patient choice”.
I am very supportive of the idea—and I think this was in the noble Lord’s mind—that as much information is available as possible. As I understood the noble Lord, the more we know about the shortcomings of palliative care, the better.
However, I wonder whether the best way to deal with that is not to make a requirement in proposed new paragraph (m) for what a seven-person panel must investigate but to make that the sort of issue that the voluntary assisted dying commissioner should be looking at in his monitoring, which is required specifically by the statute. That is just the sort of thing that might help him.
We all support the point that the noble Lord, Lord Stevens, made that the more we know about palliative care—its funding, where it is good and where it is bad—the better. But is the assisted dying Bill the right place to try to lever in a whole range of informational requirements, of the sort that he referred to from the Mental Health Act, which we would all support?
Lord Stevens of Birmingham (CB)
Even if the noble and learned Lord does not adopt the scheme put forward by the noble Baroness, Lady Finlay, would he nevertheless accept that, for the co-ordinating doctors, it would be valuable to ascertain the information contained in proposed new paragraph (m) in this amendment? We would therefore be accumulating real-world evidence from every case and not looking at just the aggregate national position that the voluntary assisted dying commissioner might be able to adduce.
Lord Falconer of Thoroton (Lab)
Yes, and I cannot imagine a situation, in particular because it is specifically required under the Bill, in which the co-ordinating doctor does not raise the question of what palliative care the patient has had and what is available. Indeed, the Bill requires him or her to do that. Whether the co-ordinating doctor should then provide that information to the voluntary assisted dying commissioner is a matter for the commissioner, as it is up to him or her to decide what information to collect. In principle, it seems a good thing, but the noble Lord has referred to vastly bigger issues that we might need to consider, not in the context of the assisted dying Bill but in relation to how proper information is available about the availability of palliative care. We are all supportive of that.
Lord Harper (Con)
I wanted to ask the noble and learned Lord, on his comments about the contribution from the noble Lord, Lord Stevens, about the role of the NHS. As noble Lords know, that this is to be provided by the NHS is not set out in the Bill. It is allowed for, and there are powers to amend the founding principle of the NHS to make it possible, but I had understood and Ministers indicated that, if this legislation were passed, this would be done by the NHS.
The noble and learned Lord said that this question is not of enormous importance to him; it is more about the process, which comes back to the point that the noble Baroness, Lady Jay, made about it being workable. However, I should like the noble and learned Lord just to set out his view about where assisted suicide should be provided, because the question about whether it will be provided by the NHS or not is really important. Whatever view the noble and learned Lord takes, the Committee deserves to know which of those two scenarios it is, before it makes a decision on whether it wants to support the Bill.
Lord Falconer of Thoroton (Lab)
When I said that I am really focused on how to provide a proper assisted death and that that is not a technical question about whether the NHS will provide it, I did not mean to say that it is not important for this issue to be resolved. If I did, I misspoke, but please do not read me as saying that. That is an issue on the way to the Bill providing a compassionate and workable way of providing an assisted death to those who want it.
As to the second part of the question asked by the noble Lord, Lord Harper, about my view in relation to it, it is that it is ultimately for the Secretary of State for Health to decide how it is provided. The power is given to the Secretary of State to decide that in Clause 41, with the amendments that I have put down in relation to it. It gives him power to commission it himself or through a variety of other bodies. That might involve some body other than the NHS providing it. Ultimately, it is for the Secretary of State to decide how that is done. I think I have said enough on the scheme proposed by the noble Baroness, Lady Finlay.
I will go on to substances. There is a range of amendments in relation to substances. We shall come back to substances in relation to Clauses 27 and 37. They are in this group because they relate in part to the scheme proposed by the noble Baroness, Lady Finlay. She proposes designated pharmacies so that only particular pharmacies can do it. It is again—this is the wording of the Bill—for the Secretary of State to decide how substances are to be selected, how drugs and devices are to be approved, and then how they are to be dealt with. Subject to my amendments, which give more limitation to Clauses 27 and 37, I think the right principle in relation to that is that it is for the Secretary of State to decide how properly to regulate and choose the substances, and he or she is to do it only after taking proper advice.
Baroness Berger (Lab)
On that very point about Clause 37, I am sure my noble and learned friend is aware of the updated Delegated Powers and Regulatory Reform Committee report alluded to by the noble Lord, Lord Stevens, a moment ago. On that clause, it states that there are still “highly inappropriate” provisions in the Bill, particularly on Clause 37, specifically in relation to the substances that would be used for an assisted death. I heard what my noble and learned friend said, but it is the complete opposite of what the report released yesterday says and what remains in the Bill. The amendments that my noble and learned friend has brought forward do not yet address the concerns expressed by that very important committee in its report.
Lord Falconer of Thoroton (Lab)
I accept what my noble friend says. I hope she has read my note to the committee, which it published, in which I accept that further work is required, in particular on Clause 37. I accept in principle that I have to come back with further amendments in relation to Clauses 27 and 37.
The noble Baroness, Lady Hollins, has made a series of creative suggestions. She is addressing this in a way that is separate from the proposal from the noble Baroness, Lady Finlay of Llandaff. She says that her proposals on substances should apply irrespective of which scheme it is. I need to consider some of them in detail. My noble friend Lady Blake has indicated why some are difficult to integrate into substances for assisted dying. I am particularly interested in the relationship between the Medicines and Healthcare products Regulatory Agency and the approval of these drugs; that needs further thought on the sponsor’s part. In addition to the amendments that I am proposing to Clauses 27 and 37, I should consider them as I think they are valuable.
For the reasons given by my noble friend Lady Blake, I do not support the amendments proposed by the noble Baroness, Lady Grey-Thompson, in relation to clinical trials. Although the MHRA has a part to play, I also accept the limitations on that put forward by my noble friend Lady Blake.
I have seven amendments in this group: Amendments 624A, 708A, 708B, 710B, 862B, 877B and 878A, all of which relate to limiting the power in Clauses 27 and 37, and include a requirement for consultation in respect of the Minister. I do not think that they are contentious, although I accept that people think that I should go further. In the respect that I have mentioned, I am more than willing to think about going further. If and when we reach those amendments, I expect the Committee to agree to them.
I deal finally with the question from the noble Lord, Lord Empey, in relation to Northern Ireland. He asks why the Bill extends the power of the drug regulator in this respect to Northern Ireland. The noble Lord will know that drug regulation is a matter for the whole of the United Kingdom so must be dealt with by a statute in this House. We are not suggesting that Northern Ireland should change its current law, but if there was a law change then there would be no reason why the drugs authorised in whatever process the Secretary of State agrees to should not apply to Northern Ireland. That is why it refers to Northern Ireland.
Lord Deben (Con)
Does the noble and learned Lord agree with the noble Baroness, Lady Murphy, that assisted dying is part of palliative care?
Lord Falconer of Thoroton (Lab)
Assisted dying is about giving somebody a good death. Palliative care is about exactly the same thing.
Lord Empey (UUP)
I thank the noble and learned Lord for his explanation. However, I said that it was a probing amendment. Other clauses are also extended to Northern Ireland, not simply Clause 37. Because it was just probing, I reserve the right to reflect on that and perhaps come back at a later stage.
Lord Falconer of Thoroton (Lab)
It is my fault for not dealing with it adequately. Of the two other clauses that apply, one is about advertising and is concerned with advertising into England and Wales. Nobody wants the advertising of assisted death services. We have drafted it on the basis that if you do it from Northern Ireland into England and Wales then there should be a means of enforcing that. The other is detriment to employment rights. Employment law covers the whole of the United Kingdom, which is why this applies to that one as well.
Baroness Finlay of Llandaff (CB)
My Lords, I am grateful to all who have spoken in this debate. I am concerned that some things that were laid out in my scheme appear to have been misinterpreted. I would like to get those out the way first.
I did not say that the panel must have seven people who approve an application. I pointed out that two people would meet the patient and go to the person seeking an assisted death, but the panel could be “up to” seven people. It could co-opt people as it felt necessary to make a decision.
There is a fundamental question here as to whether this is within or separate from NHS services, which is the request that has been made by the royal colleges. It is of concern that this remains unanswered. I am most grateful to the noble Lord, Lord Stevens, for having laid it out so clearly and clarified it. It is not only about funding but about how people behave within a service and what they do.
On the statement about palliative care—I am sorry, the noble and learned Lord seems to be laughing; does he find this amusing?
Baroness Finlay of Llandaff (CB)
On the question of palliative care and stating that it is about a good death, palliative care is far, far more. When the patient dies, that is an end point of care which has been aimed to improve quality of life right the way through.
I have already provided evidence to the Committee that an optimum time really should be a minimum of knowing the patient for three months to be able to have an input, and care should go on to those who are bereaved after the death. That is quite different from seeing the term “euthanasia”, which was translated into a “good death” and is a single point in time. Palliative care is used to people having a fluctuating wish to die, to seeing people who are in despair and to having to deal with some very complex problems, which was what I tried to illustrate with my patient, who gave permission for me to tell his story.
Baroness Grey-Thompson
“(A1) No registered medical practitioner may raise the subject of provision of assistance—(a) within 48 hours of a terminal diagnosis;(b) until a multi-agency assessment to identify the patient’s current support needs since diagnosis has occurred;(c) unless the necessary steps have been taken to meet the needs of the individual and both the assessment of and support for this is fully funded.”
Baroness Grey-Thompson (CB)
My Lords, the purpose of my amendments in this group is to ensure that all patients’ needs are taken into account and support is given so that people have a genuine choice. I am delighted that my noble friend Lady Campbell of Surbiton will speak to this group. Amendment 149 would ensure that the subject of assisted suicide is not raised within 48 hours of a terminal diagnosis. Perhaps this should be considered a cooling-off period. I have been with someone when they received a devastating diagnosis that they were dreading. They had not considered assisted suicide, but neither of us heard much after initially being told.
This is about a timing issue that could be seen to be a power imbalance or an implied endorsement. Options need to be very carefully discussed. If discussed straight away, treatments might seem so awful that assisted suicide is considered the best option. It might be quicker or easier to talk about this than a complex set of treatment options. To give patients choice, a multi-agency team assessment should take place to identify current support needs and ensure that steps are being taken to meet those needs.
This amendment would also offer some protection to doctors. If the conversation is discretionary, there may be a difficult legal dilemma: if it is raised at the initial consultation, it might be seen to be implicit coercion, but if doctors fail to raise it, that might be considered blocking access. There was a case in South Australia, mentioned in the Voluntary Assisted Dying (Voluntary Assisted Dying Board Annual Report 2022-23). Siblings said that, when they were with their relation, who was given VAD, it was the only time that doctors had shown empathy or understanding. The Medical Defence Union, which supports 200,000 healthcare professionals, is deeply concerned about the appropriate time to raise the subject.
This leads us into a grey area of suicide ideation. We fund suicide prevention; we do as much as we can to prevent someone dying by suicide. This Bill could lead to unforeseen consequences. As previously debated, it does not guarantee a quick or painless death, and if this process exists, the rate of suicide may even rise, as has happened in Australia in the over-65 age group.
There is also an assumption that if a terminal diagnosis is given, the process will be entered into, which might not be the case. ONS data from 2022 shows that people with terminal conditions can feel suicidal. One year after diagnosis for low-survival cancers or COPD, the suicide rate for patients was 2.4 times higher than the suicide rate for the matched controls. One year after diagnosis for chronic ischemic heart conditions, the suicide rate for patients was nearly two times higher than for the matched controls.
In oral evidence, Dr Price said that, of those who would qualify under the Bill,
“around 20% will have diagnosable depression, around 10% will have a wish to hasten death, and around 4% will have a more persistent wish to hasten death”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee 30/1/25; col. 270.]
She added:
“Those who had a wish to hasten death were 18 times more likely to also feel suicidal”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee 30/1/25; col. 276.]
The Royal College of Psychiatrists has raised issues, stating that doctors do not know how to assess the presence of depression. In a large-scale survey of professionals in England and Wales, co-authored by Professor Gareth Owen in 2021, only 6.9% of non-psychiatric doctors rated themselves as assessing capacity “very well”. When Fazilet Hadi from Disability Rights UK gave evidence, she said:
“We often find that doctors, because they cannot treat or cure us, do devalue our lives”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee 29/1/25; col. 180.]
She was referring to disabled people.
The VAD review board of the Australian state of Victoria says that doctor initiation might be the reason for increased take-up. Previously, there was a prohibition on doctors raising it, but that gagging clause has now been removed. A JAMA Psychiatry paper from 2019 also highlighted the heightened risk during the first week after diagnosis. It said:
“Clinically, our results identify specific cancers associated with significantly elevated risk of suicide”.
The combined literature suggests that the first week after diagnosis has the highest risk for suicide, and it falls thereafter. It therefore makes sense that those who have received a shock terminal diagnosis are most vulnerable and suggestible and may have low self-worth. Macmillan Cancer Support recommends a holistic needs assessment as part of cancer care. The Bill will be better for having this assessment built in and will lead to more patient-centred care. It is impossible to have true agency when only one realistic choice is offered. That is why it is crucial that the patient’s current support needs are identified after diagnosis.
I strongly support Amendment 155 in the name of the noble Baroness, Lady Keeley. I feel very strongly that patients should be able to discuss their diagnosis and treatment with no fear of potentially being encouraged or having this process suggested to them.
On Amendment 176, we have covered complications before. The noble and learned Lord said in the Chamber that a discussion should take place before the first set of drugs are taken, and, if they do not work, the patient can choose to take a second dose of poison. But what is there to protect the doctor? Will the wishes be written down or witnessed? What should the doctors do if the drugs do not work? Should the doctor have a second dose with them? Will it be a doctor or, perhaps, a physician assistant? Is euthanasia the next step? It could be seen to be the next logical step in expansion. If one or two bad deaths are recorded, we might be told that we need to be more compassionate, and this is the best way to go.
In Hawaii, a doctor allegedly completed the death of a patient after the woman began choking; it was reported in the Honolulu Star-Advertiser. That doctor was charged with second-degree murder. Legally, a patient needs to know the effect of the drugs. Clause 12(2) refers to the need to discuss the complications, but we cannot play down the risks. Data from Oregon from between 2012 and 2022 showed a complication rate of 11%. In the Netherlands, in one-third of cases it takes up to 30 hours for a patient to die. As I have said before, assisted suicide is often represented as painless and quick, allowing for a calm and meaningful goodbye, but the reality from cases around the world shows that it can be far from this. The case of Kurt from Colorado has been raised previously by my noble friend Lady Finlay.
There has been much said in this Chamber about the importance of words, and I strongly believe that the word treatment does not cover what we are talking about. Using “treatment” to mean a lethal mixture of drugs intended to end life is clearly an attempt to soften the blow of reality. That is why people are not aware of the frequency of complications, and of the need to know the wishes of the patient in the event of complications.
My Amendment 200 is very similar to Amendment 149— it just seeks to amend a different part of the Bill. Briefly, I will talk to Amendment 200A and the unique context around the preliminary discussion, because failure to comply with regulations is appropriately treated as misconduct and subject to existing disciplinary procedures. I know that the noble and learned Lord is not keen to ask someone why they would want an assisted suicide, but I think the question should be asked. People do not need to answer, but we need to ask, to understand the process and look at whether there are other ways that we can improve our health service.
In Victoria, in 2023, the reasons for accessing VAD were not recorded, so the nature and source of the suffering—which is a clear criterion for access to VAD—is not known. This information could help us improve legislation in the future, or close gaps. The impact evaluation of VAD is undertaken by researchers funded by time-competitive grants, which means the results can be piecemeal and the data not always accurate. In 2023-24, 10 doctors with the highest VAD caseloads consulted on 55% of all VAD cases. In Australia, the VAD substance is often taken in the absence of a health professional, and there are no specific requirements or procedures for gathering or publishing information, including on whether complications have occurred.
Turning to my Amendments 207 and 207A, I have previously quoted Tommy Jessop and his concerns for people with Down syndrome. People with Down syndrome put great store in people in positions of trust around them, and the Learning From Lives and Deaths report that was published in January 2026 discussed some of the challenges. The proportion of deaths of people with learning disabilities classified as avoidable was 40.2% in 2023; it was 21.8% for the general population in 2022, so the figure is almost double. That demonstrates that there are problems in healthcare for people with learning disabilities. Some 72.7% of adults with learning disabilities who died in 2023 were reported to have received the reasonable adjustments they required when they accessed care, but conversely, 27.3% were reported to have needed at least one reasonable adjustment that they were not provided with.
There are already deficiencies in our system, and disabled people are discouraged by ableist attitudes in our culture. In 2024, Autism Alliance UK reported that 91% of autistic people feel that society does not accept them, or only sometimes accepts them. That is the reason why my amendments would widen the definition, so that we should be looking to support from a “guardian, or independent person”. Many families are loving and caring, but we have to recognise that some are not, and we should ensure that people have the right protection and support around them. I beg to move.
Lord Weir of Ballyholme (DUP)
My Lords, I will speak to my amendment in this group, Amendment 200B. It would insert a new clause to say that care professionals are not permitted to raise the subject of assistance. For the avoidance of doubt, the proposed new clause says that anyone who is engaged in patient care may not
“raise, suggest, encourage or initiate consideration of the subject of the provision of assistance under this Act”.
There are four main reasons why I have tabled this amendment. First, it would give clarity and absolute legal certainty to those in the medical profession and to care professionals regarding the initiation of discussion of the subject. We know that other parts of the Bill set out a clear position on what actions will be taken by medical professionals when it comes to the administration of the assisted death, but it is important that we have a clear legal position when it comes to the front end of the process. That is not simply to give assurance that there is clarity in the law; I think it would give comfort and certainty to anyone who is involved in the care profession. If I were a care professional, I would want to know with certainty what I am entitled to do and not entitled to do. My amendment would give a level of support to those people.
Secondly, the amendment is very much in the spirit of trying to create a distinction between healthcare and the provision of assisted death. A concern has been raised on a number of occasions in this Committee about the extent to which assisted death will alter the perception of the National Health Service and its mission statement. This amendment in and of itself would not solve all those problems, but at least it would go some way to having a level of protection for the National Health Service, which is very much the jewel in the crown of this society. It was created through probably the most significant legislation that a Labour Government ever put through, and it is important that we look at the implications of this.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
Before anybody else intervenes, I should have said at the beginning of this group of amendments that the noble Baroness, Lady Campbell of Surbiton, and the noble Lord, Lord Shinkwin, will be taking part remotely. I apologise to both of them for forgetting that at the beginning. The noble Lord, Lord Shinkwin, is taking part remotely and I invite him to speak.
Lord Shinkwin (Con) [V]
My Lords, Amendments 162, 194 and 858 are in my name, and I should make clear that I do not intend to move them. Amendment 162 proposes that, where a person has Down syndrome or a learning disability, a registered medical practitioner must not initiate, suggest or raise the matter of assisted dying with that person. This is consistent with two findings of a new poll by Whitestone Insight, to which my noble friend Lord Harper referred in the previous group. It shows, first, that 84% of people believe that assisted dying should be initiated only by the patient, and that figure rises to 91% among people aged over 75. It also shows that 86% of people support additional safeguards for people with Down syndrome, autism and learning disabilities.
Ken Ross of the National Down Syndrome Policy Group told the Select Committee on the Bill that
“those with learning disabilities may place great weight on a doctor’s suggestion and be unduly influenced towards choosing an assisted death”.
He added:
“The acquiescence bias risk from people with Down syndrome is extraordinary”.
We have talked extensively about the huge risks of coercion caused by this poorly drafted and unsafe Bill. As our forensic scrutiny has highlighted, these cannot be overstated for some of the most vulnerable members of our society, including people with Down syndrome or learning disabilities.
The noble and learned Lord has complained about the number of amendments that have been tabled, but, bizarrely, he did so without any acknowledgement that this reflects the very poor state of this unsafe Bill when it came to your Lordships’ House. It is regrettable that the noble and learned Lord, in his consistently dismissive responses, is sabotaging noble Lords’ carefully considered and reasonable attempts to mitigate the worst effects of his badly drafted Bill. That is the purpose of Amendment 162 and its consequential Amendments 858 and 194, none of which I would have needed to table if the Bill were safe. Amendments 194 and 200A, in the name of my noble friend Lady Maclean of Redditch, who cannot be present today, would require the Secretary of State, by regulations, to make provision about the training, qualifications and experience that a registered medical practitioner must have if they are to exercise their professional judgment under Sections 2 and 3.
At the moment, despite the sensitivity of these conversations, not least with people who, because of Down syndrome, are predisposed to agree with what they are told and are unable to compute the gravity or finality of the choice of an assisted death, and the fact that a conversation is the first step on the pathway to end that person’s life with lethal drugs—despite all this, there are no minimum requirements for training or experience. In such a situation, where the Bill grants every doctor legal protection if they exercise their professional judgment to discuss assisted death with a person, is it not essential that there are minimum requirements to qualify for this protection?
Surely, the question is how they could not need minimum training or experience to deal with such delicate and sensitive situations, especially those involving people with Down syndrome and learning disabilities? I cannot understand how anyone could think that they do not, unless there is another agenda at play that prioritises, over everything else, making access to an assisted death as easy as possible, and thus unencumbered by safeguards such as those my amendments would provide, in particular to those with Down syndrome or learning disabilities, because these disabilities would place them in an invidiously vulnerable situation
Mr Ross told the Select Committee that such training should be mandatory. He also cited a shocking statistic which underlines the point made earlier by the noble Baroness, Lady Grey-Thompson, about the extent of existing discriminatory outcomes in evidence of health inequalities, which was revised only two months ago in a corrected version of the 2025 LeDeR report. The statistic is that just over 40% of people with learning disabilities die from avoidable causes—and that is now, without the Bill. We may consider how much worse the Bill would make that deeply unsettling statistic.
Mr Ross also told the Select Committee:
“There is a real fear among the people with Down syndrome I have spoken to that this Bill will further target their lives”.
Is the noble and learned Lord really going to ignore their fear? I have to say, that is not the Labour Party that I, and many other disabled people, know and respect.
While dismissing the case I made in Committee on 6 February relating to people with congenital lifelong conditions such as mine, the noble and learned Lord expressed sympathy and referred to my “fate”—which is a bit ominous, although perhaps inadvertently accurate in the context of this Bill. I dare say I should be grateful for such touching thoughtfulness, although I am not sure his sympathy would afford either me or, in relation to these amendments, a person with Down syndrome or a learning disability any protection from the deadly provisions of this deeply flawed Bill.
In closing, I readily acknowledge that translating warm words of sympathy into effective safeguards might defeat even the most able of advocates; perhaps, therefore, I could offer a more practical solution in the form of these amendments. I hope the noble and learned Lord will accept them.
Baroness Campbell of Surbiton (CB) [V]
My Lords, I have added my name to Amendment 149 in the name of my noble friend Lady Grey-Thompson. I also support the principle underpinning Amendments 150, 151 and 154, all of which aim to prevent a medical practitioner initiating discussions on assisted dying under Clause 5 of the Bill.
Like the noble Lord, Lord Shinkwin, I thoroughly agree that doctors must not be permitted to initiate conversations about assisted dying to patients. Let me tell your Lordships why. Doing so would breach their fundamental duty of care to their patients at the very point when the patient may well be at their most fragile—newly diagnosed and frightened about what the future holds. It would not be a neutral clinical act but an intervention laden with power, meaning and consequence. The very suggestion of assisted death from a doctor at such times risks being heard not as an option but as a judgment.
Not long ago, during the scariest time of the Covid-19 pandemic, disabled people were contacted by their GPs to ask them to allow permission for DNR notices to be placed on their medical records should they be hospitalised after contracting the virus. Disabled people were horrified; many contacted me and other parliamentarians to know why they were being treated differently from non-disabled people. They said that it felt as though catching Covid would be a death sentence. Thankfully, the Secretary of State for Health rectified the issue, reminding doctors that their actions were in contravention of the Equality Act and the Human Rights Act, but the damage was already done. Disabled people who relied on their doctors for their health and well-being felt betrayed and unworthy of life-saving treatment.
If a medical practitioner raises the possibility of an assisted death, the patient’s feeling of security and trust will be damaged in the same way as during the pandemic. Your Lordships have often heard me say that I count my blessings every day because my doctors support and celebrate my life, however ill I become. I feel secure knowing that they will do their absolute best, however grim my prognosis may be. Reliance on that assurance is critical to the well-being of patients, especially those with long-term disabilities.
If assisted dying is to become an option, it must be one that is strictly patient-initiated, tightly defined and clearly demarcated from ordinary clinical care. It must sit within a system that prioritises palliative care, practical support and the affirmation of life; otherwise, it will be seen as the simplest and most straightforward option for the patient, their family and friends, the NHS and society as a whole.
The doctor-patient relationship is inherently unequal, and never more so than after a terminal or life-limiting diagnosis. When a doctor introduces the possibility of assisted dying, however delicately phrased, it carries weight. For many patients, particularly those who already feel themselves to be burdensome, costly or devalued, the message risks being internalised as a subtle signal that their lives are no longer worth living.
We must also confront the reality of acute vulnerability. A diagnosis of serious illness often brings shock, despair and temporary suicidal thoughts—feelings that, with time, treatment and compassionate support, frequently pass. This is why I support my noble friend Lady Grey-Thompson in her Amendment 149, which seeks to address this. Depression, unmanaged pain, fear and loneliness are not unusual bedfellows for people with a terminal diagnosis. Medical practitioners are not specialists in disentangling these states.
If we are serious about safeguarding autonomy, our first duty is to ensure that people are offered care, hope and practical support, not an expedited exit at a time when they feel most afraid. I therefore hope the noble and learned Lord will recognise this and come back with his own amendments on Report, to ensure that the subject of assisted dying is raised only by the patient and never by a medical practitioner. I would be very pleased to meet him between now and Report to explain further why this is so essential for the legislation to be safe in practice.
Baroness Blackstone (Lab)
It is with some trepidation that I speak, since I realise how passionately the previous speakers think about what they have said. The first small point I want to make is that the noble Baroness, Lady Campbell, referred to Report—we are not going to have a Report stage, because we have taken so long in dealing with all the many, many amendments that have been tabled.
Leaving that on one side, we have to realise that doctors’ main objective is to try to alleviate suffering. This is what those of us backing the Bill believe it does: it will alleviate suffering—sometimes terrible suffering—and torment by allowing people to choose the time of their death when they are already dying. We must not forget this. If we accept that this is the role of doctors, that this is what they try to do in their professional work, we must allow them to discuss at an appropriate point, in their judgment, all the possible options that are available to the dying person. If the Bill were enacted, one of the options would be an assisted death if they had reached that point. So to say that a doctor in a close relationship with his or her patient would be unable to raise this as a possible option would be entirely wrong.
I advise everybody, if they have not done so already, to look at what the BMA says about this. It has specifically briefed against prohibiting doctors from initiating discussion about assisted dying under the Bill, warning that it will be detrimental to patient care. I accept this piece of advice from the BMA. It is a view that many doctors, and some in this Chamber, too, would actually adhere to and agree with.
I very much hope that this group of amendments will not be accepted. It does not mean that at the end the patient is not the one who makes the decision about whether to request an assisted death—of course he or she does. But it just becomes one of the options that is available to them, and that is an option I believe we should allow them to be aware of.
Lord Goodman of Wycombe (Con)
My Lords, I will speak to my Amendment 151, which is supported by the noble Lord, Lord Carlile, and the noble Baronesses, Lady Fox and Lady Hollins. It was also referred to approvingly by the noble Baroness, Lady Campbell, in her earlier remarks. My amendment would prohibit medical professionals from raising assisted dying as an option, unless explicitly requested by the patient.
I will be very brief in introducing this amendment, by pointing out to the Committee that it goes to the heart of a juxtaposition suggested by the Bill. On the one hand, we have an increasingly large, frail, vulnerable, often elderly population, who may not have the full autonomy that the sponsor of the Bill suggests. On the other hand, we have a National Health Service that, by the nature of events, is almost always underfunded and feels that it will be underfunded. If you put those two things together, there will be an inevitable pressure to cut costs and present the cheaper option to the patient who is seeking guidance.
I have carefully read the sponsor’s words in Clause 5 and it is true that, on paper, the patient must be offered the option of palliative care as well as that of an assisted death. However, in these circumstances of financial restriction, I am concerned about the patient being steered in a certain direction. I will not regale the Committee with horror stories from abroad, usually from Canada, about precisely this taking place. Were I to do that, the sponsor of the Bill and others would, quite rightly, point out that there are safeguards in the Bill that are not present in Canada. I would point out in return that safeguards can be whittled away over time. In making that point, I mean nothing to the detriment of the sponsor of the Bill; I am sure that he does not mean it to happen but, over time, people can make amendments and changes to legislation.
I will step back from this amendment and look at it in this way. I believe that assisted dying is intrinsically problematic and, if the Bill ever got further, I would vote against it at Third Reading. However, my concern while we are here is to improve the Bill. If we are to have such a Bill, I want it to be in the best—I should say the least bad—condition possible. Noble Lords know that nothing in the amendment would alter the basic architecture and structure of what the sponsor of the Bill has proposed—in relation to the first doctor, the second doctor, the panel, proxies, the regime for regulating substances or any of that. The amendment would do nothing whatever to prevent anyone seeking an assisted death. All it would do is to prevent a medical professional raising it.
Therefore, I suggest to the noble and learned Lord the sponsor that, if he wants to make some progress with the Bill, he might accept this amendment or one of the many others in this group to a similar end. I look forward to hearing him when he replies but, whether he does accept it or not, this amendment would write a safeguard into the Bill that is not there, and I commend it to the Committee.
Lord Falconer of Thoroton (Lab)
I congratulate the noble Lord because, although I disagreed with his conclusions, in just three minutes and 35 seconds he managed to summarise brilliantly the arguments both ways and the evidence.
Baroness Lawlor (Con)
My Lords, I will add a word to follow my noble friend Lord Goodman’s Amendment 151, in proposing my Amendment 153A. This goes further to stipulate that a medical practitioner may not raise the subject with the patient
“unless the person has raised it first during an in-person appointment requested specifically for that purpose”.
We have spoken today about the position of trust that the doctor enjoys. He or she is trusted by the patient and by our society, and is paid for by the taxpayer who trusts him or her. That trust is breached if the position is used not for the treatment of a patient’s symptoms, to help manage them or to benefit the patient, but to suggest that the patient should instead consider killing themselves.
A doctor who is trusted to find the best medical treatment for, say, pneumonia, blood pressure or heart disease becomes an agent who leads to the medicalised death for the patient with a poison that is self-administered, as if it were just an ordinary curative medicine. Moreover, as the Bill stands, the requirement to discuss possible side-effects and complications, which we know happens in other jurisdictions, is not there. Perhaps we might also consider why doctors are in this position of trust. It is because they have special knowledge, not only of medicine and its treatment, but of access to medications. They are especially trusted when the patient is very ill, very frail or terminally ill and perhaps already feeling a burden to those who are looking after them. If we permit the doctor to raise the subject of assisted dying to those who are so suffering, we leave the door wide open to the abuse of power. It need not be deliberate abuse. The doctor may only be raising a possibility—
Baroness Murphy (CB)
Is the noble Baroness, Lady Lawlor, aware that, of all the countries in Europe, it is the Netherlands where doctors are most trusted? We should consider what their legislation is and how close, often, the relationship is between the doctor and the patient who is in receipt of assisted death. I am not advocating their legislation, but I note that, of all the countries that have assisted dying, the doctors are most trusted in the Netherlands.
Baroness Lawlor (Con)
I thank the noble Baroness for that, but I point out that the Netherlands has many significant problems to do with various aspects of its legalisation of certain medical actions and operations. I will not go into them, but other countries are suffering from a fallout of what is happening, especially those on a rail service from Amsterdam.
If we leave the door wide open, it can happen. A doctor may only be raising the possibility, but a patient may be more swayed by a doctor’s opinion than their own. Indeed, where no pressure is intended, the pressure may be there none the less. The position of trust can therefore survive only if the doctor recognises that their normal role is limited to supporting the health of the living, helping the patient to live life as fully as possible by managing an illness or its symptoms or coping through the ups and downs of treatment. Participating in assisting suicide, for those doctors who agree to do so, is an extraordinary non-doctorly role that they should enter into only at the self-initiated request of the patient.
Baroness Hayman (CB)
My Lords, I have found some of this discussion quite difficult to compute with my own very limited—non-doctor—experience of end-of-life care and relatives who have been dying. The noble Baroness, Lady Lawlor, spoke as if there was a very binary division between assisted dying care and palliative care. Yet the cases that I have been involved with and seen very closely have been of people very definitely frail and at the end of their lives, and where the range of options they wanted to talk about were not simply pain relief. This whole time, no one has mentioned the right of people to exercise autonomy, to stop eating and starve themselves to death. Does the doctor not consider what happens in those circumstances and talk about options then? There is the option, of course, to turn off life support. There is the option—which my mother chose—to refuse any blood transfusions. Doctors talked her through how that would reduce her life expectancy.
Baroness O’Loan (CB)
My Lords, I will speak to Amendments 150, 156, 166 and 205, to which I have put my name, and in support of other amendments in the group.
As drafted, the Bill would permit a discussion about assisted dying with the patient before any requirement to discuss expert palliative care. The noble Baroness, Lady Blackstone, said that it would be irresponsible not to allow this. In Australia and New Zealand, doctors are not permitted to initiate such discussions.
As drafted—
Baroness Blackstone (Lab)
Doctors in Australia are now allowed to do so. The law has been changed there.
Baroness O’Loan (CB)
I accept the noble Baroness’s intervention, but they certainly thought it was a bad idea, and there is further discussion in South Australia about the issue.
If I may go on: as drafted, the Bill will permit discussion about assisted dying before discussion about palliative care. It would come as something of a shock—
Lord Falconer of Thoroton (Lab)
I think the position was that there was an Act in Victoria, Australia. After the five-year review of the operation of the Act, the Government recommended that the prohibition on raising it be removed as it was found to be impeding access and undermining patient-centred care. The Royal Australian College of GPs welcomed the recommendation as a sensible step and the law was changed.
Baroness O’Loan (CB)
I accept that, no problem.
It would come as a shock if a doctor came to one’s bedside and said, “In these circumstances, you may wish to consider an assisted death”. Experience would tell us that a patient might not hear much more of any discussions about treatment and palliative care, given the shock and their already vulnerable state.
Can the Minister explain why the Bill is drafted as it is in this context, permitting a discussion about assisted dying without requiring a previous discussion about palliative care? Can the noble and learned Lord, Lord Falconer, assure your Lordships that there will be a genuine choice?
Lord Falconer of Thoroton (Lab)
The noble Baroness will know that Clause 5 specifically says that if a registered medical practitioner raises the question of assisted death, he
“must explain to and discuss with that person … all appropriate palliative, hospice or other care”
that is available. It says:
“Accordingly, such a preliminary discussion may not be conducted in isolation”
of, among other things, palliative care. I am not sure of the basis on which the noble Baroness is saying that that should come before rather than at the same time.
Baroness O’Loan (CB)
I am saying that it should come before, because Clause 5, as drafted and as the noble and learned Lord read it out to the Committee, says it is to be part of a discussion about assisted death. I suggest to the Committee that if a doctor mentions assisted death, that will focus one’s mind in a way that may cause distress, shock and all sorts of things.
There is another problem: the issue of the doctor raising the issue despite the fact that the patient has given no indication that he wants to talk about it. The Bill is said to be a matter of autonomy, but it cannot be denied that there is an unequal relationship between the patient and the doctor. Doctors are perceived as knowing and acting in the interests of the patient. Under the constitution of the National Health Service, it is provided:
“It is there to improve our health and wellbeing, supporting us to keep mentally and physically well, to get better when we are ill and, when we cannot fully recover, to stay as well as we can to the end of our lives”.
Even where a patient may have autonomy, were a doctor to initiate a discussion about assisted dying, he or she would fundamentally undermine patient autonomy. Offering assisted suicide is not the same as offering palliative care, cancer treatment or any other care. These are all directed to the treatment of a living person. Assisted suicide is about killing the person.
When doctors raise assisted suicide or assisted dying, patients may interpret this as an implicit recommendation or, indeed, a judgment about the value of their life, not a neutral option. That undermines agency. A choice influenced by authority, fear or deference is not a free choice. There is a huge risk of a doctor exercising undue influence and exposing patients to pressure at the most vulnerable point in their lives. I heard the noble and learned Lord, Lord Falconer, acknowledge that doctors hold exceptional authority over patients. He should reflect on that.
The solution to these problems, as in Amendments 150, 151 and 154, is to amend Clause 5 to provide that there would be no discussion with the patient until the patient says that they want the discussion. Amendment 156 would delete Clause 5(2) and is consistent with the other amendments. Amendments 159 and 160 would clarify the meaning of the Bill to state specifically what is to be discussed: the death of the person sitting or lying in a bed before the doctor, not any other matter. All these amendments would bring clarity and additional protection.
Amendments 157 and 164 would protect the patient even further by providing that, where a person has told their GP they do not want a discussion about assisted dying, this should be recorded in their notes. That should provide an audit trail of the wish of the patient. This must then be complied with by any registered medical practitioner.
Baroness Berridge (Con)
Am I right in understanding that the noble Baroness’s amendments are designed to achieve a situation where someone experiences and receives the best palliative care before the discussion takes place? Otherwise, as the most reverend Primate the Archbishop of Canterbury has said, any choice that you exercise could be illusory, unless you are in that situation.
Baroness O’Loan (CB)
I thank the noble Baroness for her helpful intervention.
There is a further problem. As drafted, there is nothing to prevent any other health professional—a nurse, health visitor or physio—raising assisted dying with a patient. Sometimes, patients form stronger relationships with these people than with doctors because they see more of them. It is essential, therefore, that there is no possibility of a warm-up conversation being initiated by a professional to ease the ground for the doctor when he wants to make his approach. It may be said that this would not happen, but we have seen ample evidence of situations in which cost savings to be secured by freeing up beds and ending treatment are regarded as justification for assisted death. We have, of course, seen situations in which a person who has suffered an amputation or has a terminal cancer seeks a wheelchair and is told the waiting list is two years, but that assisted dying can be provided tomorrow. Any situation in which assisted dying is discussed for the first time must be strictly patient initiated, tightly confined and take place through a clearly defined process.
Amendment 205, to which I put my name, as well as Amendments 207 and 207A and other amendments in the group, would prevent any discussion about assisted suicide with a person who has a learning difficulty or autism without a family member, guardian or independent person present. The effect of this would be to do what all professionals and caring organisations do when dealing with or engaging with people with such disabilities. I also support Amendments 317, 346, 457 and 512 in this group, which seek to protect those who experience feelings of suicidal ideation, which may be transient.
What about the doctors? The MDU, which represents over 200,000 healthcare professionals, is deeply concerned about the proposals in the Bill. The MDU points out that the position whereby doctors are not required to raise this but are still permitted to do so is the worst of both worlds for doctors because they would be liable to complaints in either situation. If the doctor does not raise it, a complaint can be made against them for not having done so; if they do raise it, a complaint can be made against them. As the MDU points out:
“Such proceedings can take a vast toll on doctors. The time taken; the emotional toll; the procedural concerns. This cannot be overstated”.
This is one of the many unintended consequences emanating from this clause as drafted. The clause requires substantial amendment to make it safe.
There seems to me to be a whole range of circumstances that you would want a doctor to be able to talk to the patient about. It is not simply, “We can offer you a way”, and they only talk to you and say, “This is the palliative care available, and only if you have heard that, seen it and chosen from it can we then talk to you about something different, which is assisting your death”. It seems to me—
Lord Moore of Etchingham (Non-Afl)
As I understand it, the noble Baroness is talking about various possible options. Would she think it a good idea if the doctor were free to advise the patient to stop eating?
Baroness Hayman (CB)
It is very important that the doctor should listen to the wishes of the patient. I certainly think that a doctor should not be able to force-feed a patient in those circumstances.
Baroness Meyer (Con)
My Amendment 169 is a very modest one. It simply proposes that, if the Bill proceeds, before any doctor raises the possibility of assisted dying, the patient should first receive a psychological assessment from an appropriately qualified specialist. This is not an onerous hurdle but a basic and sensible safeguard.
As many noble Lords have said, when people are approaching the end of their life, they are often in a very vulnerable state. Feelings of sadness, anxiety or despair are not unusual and even the most resilient of individuals is affected. That vulnerability can become much more acute when patients are told that they have a terminal illness and perhaps only six months to live. Such news can be profoundly shocking and can often trigger despair and even suicidal thoughts.
The evidence reflects this reality. Research drawing on data from the Office for National Statistics, King’s College London and the University of Manchester shows that the risk of suicide rises significantly in the first six months after diagnosis. In other words, the period immediately following diagnosis is often when patients are at their most fragile psychologically. This is precisely why we must proceed with great care.
Before introducing the possibility of assisted dying, it seems only prudent to understand the patient’s mental state. Without a proper psychological assessment, we cannot know whether patients are coping as well as they appear to be or whether they may be struggling with depression and even suicidal thoughts. Studies suggest that from 20% up to 40% of patients with advanced cancer experience clinical depression. Dr Rachel Clarke, a palliative care physician, warned the Commons Public Bill Committee exactly about this situation, saying that raising the question of assisted dying can unintentionally place pressure on a vulnerable patient.
Autonomy is often far more fragile and complex than we assume. When someone has just received devastating news, even a carefully framed question may be interpreted in ways that we never intended. Both the Royal College of Physicians and the Royal College of Psychiatrists, as well as palliative care and disability groups, have warned that vulnerable patients are not adequately protected by the Bill as it currently stands.
Ordinary doctors are not usually trained to make complex psychological assessments. According to the Government’s own impact assessment, doctors involved in these early conversations may receive as little as 90 minutes of e-learning and one hour of an online interactive session. Surely that is unlikely to equip them to recognise subtle depressions or suicidal feelings in patients who are already known to be at great risk.
My son is a consultant physician at the largest psychiatric hospital in Berlin. For many years he has worked on the front line treating patients in acute crises and teaching junior doctors how to recognise mental illness. His view is very clear: depression can be remarkably easy to miss if you are not a specialist.
We assume that every human has free will, but this will be impeded by severe depression. People suffering from severe depression may appear calm, rational and composed—they may even seem cheerful—yet internally they may be struggling with profound hopelessness and suicidal thoughts that impair their judgment and decision-making. Research published in the Lancet has shown that general practitioners detect depression in only 50% of cases. This is not a criticism of them. It simply reflects the fact that recognising depression, especially in people with a serious physical illness, requires time, training and specialist experience. In the context of assisted dying, this matters enormously. A misdiagnosis is not a harmless mistake. It can have fatal consequences for a patient whose suicidal thoughts might be treatable and whose desire to die may have been only temporary.
For that reason, many psychiatrists across the United Kingdom and Europe believe that a specialist psychological assessment should come at the very beginning of the process. It is a careful, humane and responsible safeguard that ensures that a request for assisted dying reflects a settled decision, not untreated despair at a moment of profound vulnerability. If we fail to make that assessment first, we risk confusing a treatable cry for help with a settled and autonomous decision to die. To proceed without that knowledge is unfair, unethical and legally questionable, as many noble Lords have said before me. The noble Baroness, Lady Finlay, one of the most authoritative medical voices in the Lords, has warned:
“Without proper psychiatric assessment, a request to die may reflect treatable depression rather than a settled wish to end life”.
I very much hope that the noble and learned Lord, Lord Falconer, will take into account these worries and accept my amendment.
Lord Carter of Haslemere (CB)
My Lords, I have tabled four amendments towards the end of this group, Amendments 317, 346, 457 and 512, which are in identical terms. They are designed to ensure that a person seeking a state-assisted death is not acting out of a temporary feeling of fear, panic or anxiety in relation to their diagnosis and prognosis. I am grateful for the support of the noble Baroness, Lady Fox, and the noble Lord, Lord Farmer. I can testify that when a person is told that they have a terminal illness with only a year or so at best to live, it is difficult to think rationally. It does not occur to you that it will often be a wholly inaccurate prognosis or that specialist palliative care can deal with most pain. My amendments therefore seek to ensure that the assessing doctors are satisfied that a person seeking a state-assisted death is not acting from such feelings of panic.
The noble and learned Lord the sponsor may say in response that the Bill already requires the doctor to ascertain whether the person has a “clear, settled” wish to end their life. However, it seems to me that a person can have such a clear and settled wish as a temporary result of fear, panic or anxiety. These amendments seek to raise the threshold at which an assessing doctor can be satisfied that the person has such a clear and settled wish.
It is at moments like that, when people are at their most vulnerable, that great care needs to be taken to ensure that they do not opt to go down a path which, on deeper and longer reflection, they might decide is wholly unnecessary or inappropriate for them. Yes, in theory they can change their mind later, but many people might feel reluctant, for all sorts of reasons, to reverse their decision once they are on that track, so the initial discussions with the assessing doctor are critically important.
A full specialist palliative care assessment, which was in an amendment I previously tabled in Committee that was rejected by the noble and learned Lord the sponsor, would help to ensure that they are not acting out of despair, fear, anxiety or panic, since it would put a pause on the whole process and ensure that their wish to end their life was properly informed, as required by the Bill. Both these sorts of amendments strike me as obviously desirable in a Bill of this nature, and I urge the noble and learned Lord the sponsor to avoid the need to have to bring them back on Report.
Lord Evans of Rainow (Con)
My Lords, Amendments 158 and 163 are in my name. I will speak also to Amendments 157 and 164, in the name of my noble friend Lord Ahmad, who cannot be with us here today. Amendment 157 in my noble friend’s name
“seeks to ensure that a doctor may not raise assisted suicide with a patient who has ‘opted-out”’.
The statement on Amendment 158 in my name says:
“The Bill appears to permit any doctor to raise ending a patient’s life, even if they have no prior relationship with the patient. This amendment specifies that a preliminary discussion can only take place with a registered medical practitioner who has known the patient for a minimum of six months”.
Amendment 164 in my noble friend’s name would insert:
“If a person has informed their general practitioner that they do not wish to discuss the subject of the provision of assistance in accordance with this Act, that fact must be added to their medical records, and a registered medical practitioner must not discuss it with them”.
In his observations on the previous group, the noble Lord, Lord Deben, made a powerful point. He said that, based on his experience as a constituency MP, many members of the public are worried by doctors and hospitals, so when we debate medical issues in this House and put legislation on the statute book, it worries very great numbers of the population. It reminded me of my grandmother, who died 10 years ago. She lived until she was 97, but she had a theory that if you went into hospital, you did not come out alive. When I went to see her in East Cheshire Hospice—an outstanding hospice—at the age of 97, she grabbed hold of my arm and said, “What did I tell you? They’re trying to kill me. Get me out of this place”. But she died a very dignified death.
It was similar with my 90 year-old mother. There was an outstanding family GP service that knew our family, and we knew the GPs. There was good service from the local NHS, outstanding palliative care and, again, the outstanding East Cheshire Hospice. The glue that helped my family members to have a dignified death was that of a loving family. On a previous day in our debates, the noble Lord, Lord Harper, made a powerful point: it is okay if you have a loving family network around you to take care of you and think of your interests when interacting with doctors and hospitals. But he then referred to those people who are poor, lonely and ill, and without the loving network around them to look after them.
A recent case happened that was very close to your Lordships’ House. A noble friend was admitted to a regional general hospital with sepsis: a very ill friend indeed. One issue that the noble Lord, Lord Goodman, mentioned was about the NHS and the pressures on it, whether through funding or at times of stress, such as when the junior doctors are on strike. An assessment was made that my noble friend needed to be operated on urgently—a life-saving operation—but, because of the junior doctors’ strike, they were unable to get the necessary staffing for the operation, so the decision was made that they could not operate on my noble friend. My noble friend’s daughter was distraught, as you can imagine, so she contacted the Whips’ Office and asked whether they could help.
Your Lordships’ House is full of eminent clinicians. A Member of your Lordships’ House was able to find a crew that could operate on my noble friend in London. All they had to do was extract her from the NHS hospital in the regions and bring her down to the private hospital in London, which was duly done. However, they could not operate on my noble friend because she was dehydrated. The decision had been made in that regional hospital to not continue with food and liquids. The good news is that, when she was rehydrated, they operated. I am very happy to say that my noble friend made a full recovery and to this day makes a huge contribution to this House from our Front Bench.
Baroness O'Loan (CB)
My Lords, I would like to clarify something that the noble and learned Lord, Lord Falconer, said in response to my statement that assisted dying was not something that doctors could suggest in Australia. The website of the Department of Health, Victoria, states:
“It is against the law for a medical or other health practitioner to suggest voluntary assisted dying as an end of life option to one of their patients. A medical practitioner cannot talk about voluntary assisted dying unless a person asks them about it first”.
If I can take noble Lords to New Zealand—
Lord Falconer of Thoroton (Lab)
Before the noble Baroness references New Zealand, I was saying that that was the position. There was then a five-year review in Victoria and the law was changed.
Baroness O'Loan (CB)
It has not changed on the Government’s contemporaneous website. If I go to New Zealand, it says that the doctor cannot advise or discuss assisted dying with you unless you ask for it first. Those are both government websites today. I accept that there may be changes due and that they may come, but they are not there, as far as I can see.
Baroness Hollins (CB)
My Lords, when a doctor, the very person entrusted to preserve life and relieve suffering, raises the possibility of assisted dying, it is no longer a neutral act. For some people, particularly those who are depressed, isolated or overwhelmed, the mere introduction of the possibility of an assisted death risks planting the idea that this course is rational or even expected. In an inherently unequal doctor-patient relationship, suggestion is easily perceived as a recommendation.
There is no requirement for an independent advocate—somebody to sit beside the patient and help them process and grasp what is being said. We are leaving some of the most consequential conversations a person can ever have to take place in isolation, within an asymmetrical, authoritarian relationship. There is no requirement for the discussion to take place with someone with specialist expertise. A “registered medical practitioner” could be a locum doctor who the patient has never met before, a foundation-year doctor in their early years of practice, or someone with no training in palliative care or experience of autism or learning disabilities, and yet they are the people who may introduce a conversation that could seriously alter the trajectory of a life.
No clinician should be allowed to initiate such a conversation; it should arise only if a patient independently raises it themselves, and even then the doctor’s role should be limited to acknowledging the request and directing the patient to an independent body while remaining firmly focused on diagnosis, treatment and the provision of appropriate and timely palliative care, as needed. Assisted dying must not be presented as an equivalent option alongside treatment, support and comfort. To do so risks the medical service being seen as one that no longer values preserving and improving life but rather one that enables the end of life.
The Royal College of GPs has stated that the role of a GP should be limited to signposting patients to a designated specialist service if, and only if, the patient raises the subject. This week, the Royal College of Psychiatrists wrote to me expressing its continuing concern. Its view is that
“all applicants should receive a holistic, multidisciplinary assessment at the preliminary discussion stage, including for mental health needs”;
in other words, something much more like the multidisciplinary panel proposed by my noble friend Lady Finlay in the previous group. I therefore suggest that Clause 5, and, in consequence, Clause 6, should not stand part of the Bill.
Baroness Monckton of Dallington Forest (Con)
My Lords, Amendment 205 is in my name, as well as those of the noble Lord, Lord Carlile, and the noble Baroness, Lady O’Loan. I declare an interest as founder of Team Domenica, and as the mother of a young woman with Down syndrome. As several of my points have already been covered by other noble Lords, I will be brief.
My amendment is simple and proportionate. It reflects the concern I raised at Second Reading: it is incomprehensible that people with learning disabilities will not be allowed a family member or, in the absence of a family member, a learning disability nurse or qualified practitioner to be with them when a doctor initiates the conversation about assisted suicide. People with learning disabilities may chronologically be adults, but many are still children who lack understanding of abstract principles. It is true that Clause 5(2) specifies that a doctor must exercise
“their professional judgement to decide if, and when, it is appropriate to discuss”
assisted suicide, but I am not satisfied that that provision is sufficiently strong. My amendment would provide an additional layer of protection for this vulnerable group, many of whom have a limited understanding of the concept of death and dying and would therefore be panicked and frightened. This combination of fear and lack of understanding would be, emotionally, absolutely devastating.
As we have heard, there is also—I see this in my own daughter—a desire to please, which is a way of seeking to belong. My daughter is also terrified of doctors, hospitals, dentists and anything medical. I dare not imagine what it would be like for anyone with a learning disability to be in a situation of having a conversation about killing themselves, probably in front of a doctor who they may never have even met, without a family member present. Yes, the Bill requires that there is mental capacity and a clear, settled and informed wish to die, but assessing capacity for people with learning difficulties is complicated on so many levels. I cannot begin to imagine how it would be done. Would it be through an easy-read leaflet with diagrams? It does not even bear thinking about.
I acknowledge—I know that this will come up—that not all families are perfect and that malign family dynamics are a reality, but I suggest that the greater threat would come from a process that fails to accommodate the specific vulnerabilities of people with learning disabilities. I find this lack of understanding extraordinary, but then, people with learning disabilities are so often ignored and forgotten. As my noble friend Lord Harper has already pointed out, during Covid, people with learning disabilities had “do not resuscitate” notices put at the end of their beds. Then came the clinical frailty scale, with nine categories going from category 1, meaning “fit”, to category 9, meaning “terminally ill”. The guidance was to deny those in categories 7 to 9 life-saving treatment. My daughter fell into category 7; thank God we did not have to send her to hospital when she got Covid.
In the Bill, this discrimination may be about saving money. The Government’s own impact assessment has revealed a saving of £2,323 if an independent advocate is not used. It is easy to work out cost, but it is much harder to measure the value of a human life.
Before I end, I thank all the parents who have written to me about the Bill. Some of them have said that they are too scared to die themselves because they do not know what on earth would happen to their adult children. These are parents who have spent a lifetime fighting. One mother wrote to me, as she digested the implications of the Bill for her own child, saying, “Sometimes, it’s easier to cry about the small things”.
My daughter has taught me a different way of looking at the world. She has taught me to live more fully and to be courageous. She has given me the strength to fight for people with learning disabilities so that they are not defined by being different. Their story is our story. We have a shared humanity and an absolute duty of care for this most vulnerable group, from the beginning of their lives to the end. It is on their behalf that I stand in your Lordships’ House and ask noble Lords to support my amendment.
Lord Rook (Lab)
My Lords, Amendments 154, 210 and 211 are in my name. I also support my noble friend Lady Goudie’s Amendments 202, 208 and 209; she is unable to be in her place today. I will endeavour to be brief. Together, these amendments address two questions that I believe unite noble Lords across the House: how we can protect vulnerable people from coercion; and how we can safeguard young people.
On preventing coercion, Amendment 154 would establish a simple but essential safeguard: that assisted dying should be patient-initiated, so a doctor or other health professional should not raise the subject unless the patient has done so first. The proposed legislation rests heavily on patient choice and the absence of coercion or pressure. If freedom from pressure is the legal foundation of the Bill, the design of the process must minimise avoidable influence. Dr Matthew Doré of the Association for Palliative Medicine cautioned the Commons Committee that, if clinicians introduce the subject of assisted dying, vulnerable patients may reasonably perceive that as an endorsement or even a recommendation, particularly given the power imbalance that is already in place.
We have rightly heard how much agency and patient choice play a role in these debates, but, if an assisted death is truly a matter of patient choice, why allow the authority figure in the room to introduce the option? The Bill already makes it clear that there is no duty on doctors to raise assisted dying. If there is no duty and preventing coercion is central, why not make that safeguard explicit in the Bill? I ask my noble and learned friend Lord Falconer of Thoroton this: if the Bill’s case rests on patient choice and the absence of pressure, why resist the clear rule that this conversation must always be initiated by the patient themselves?
Baroness Berridge (Con)
My Lords, probing Amendment 200C, in my name, would prohibit people from raising with children assistance in taking your own life, and deals with the method by which the issue of assisted dying can be raised with someone under 18. It particularly should not be raised online. The amendment seeks to extend Clause 6.
I first note my support for Amendment 210, just outlined by the noble Lord, Lord Rook, on the consequences for breaching Clause 6. Further, I wish to support Amendments 157 and 164, in the name of my noble friend Lord Ahmad and spoken to by my noble friend Lord Evans. It is entirely sensible to enable people to opt out of being offered such an assisted suicide service.
The Bill seems to have no limit, nor is it probably possible to place a limit, on the number of times assisted suicide could be raised with a patient, so it is surely consistent with autonomy to give the patient the right to opt out. One need think only of a GP surgery, and the number of GPs or nurses you see. If each of those people raises it with you, that could possibly even border on harassment. Conceptually, it is an extension of the freedom of conscience that we give to organisations and clinicians to opt out of the service. I hate to think that even dealing with a GP surgery could perhaps become part of Patchs.
This leads me on to the means by which issues can be raised, which has radically changed, and why my amendment includes online. I am grateful to the noble and learned Lord for filing comprehensive amendments in relation to advertising, but the issue of raising it with someone under the age of 18 is different. I would like assurance from the noble and learned Lord that this use of social media—for instance, someone sending a TikTok or something like that about assisted suicide—is covered by Clause 6.
That example may seem straightforward, but, once again, it brings into focus the analogue nature of the Bill. If ChatGPT, for instance, in response to a question which it mishears, tells someone under the age of 18 all about assisted dying in the Bill, is that covered by the amendments on the prohibition of advertising that the noble and learned Lord has raised? Could a bot or algorithm operate without direct human intervention and raise with a child the issue of assisted dying?
Noble Lords will be aware—the noble Baroness, Lady Berger, has spoken much on this—of the cases that are currently being taken against ChatGPT, in which OpenAI is the litigant. It is being sued for giving suicidal information to young people, who have, incredibly sadly, acted on that information. Has the noble and learned Lord spoken with technology experts about the Bill to ensure that all of these situations have been fully considered? By my reading, I do not believe that they are covered by the prohibition on advertising. As I say, advertising and raising it with someone seem to be two different concepts.
I used the word “person” in the amendment, not just “healthcare professional”, as there are numerous situations and relationships where children might have assisted dying raised with them—obviously that includes at school or college. Does the noble and learned Lord envisage that there will be guidance in this regard, and which one of the many delegated powers would be used under the Bill? What about youth groups, faith groups, sports clubs, carers or school transport? Parents need to know who is allowed to raise this potentially life and death issue with their children.
Assisted dying law will shape how children understand the value placed on life, disability and dependence. Vulnerable children may internalise the message that society is more willing to facilitate their death rather than fund their long-term care and inclusion. The concern of parents and carers around how this issue is raised with children could make the issue of PHSE teaching—namely, sex education—in schools look uncontroversial.
Although the scope of the amendment is wide—as I have said, it is probing—at least it is clear, whereas, alas, Clauses 6 and 56 are not. The phrase “No health professional” is in the title of Clause 6. It then uses the phrase:
“No registered medical practitioner or other health professional”
within the clause. This is a mixture of the definition of health professional in Clause 56. Usually, when you have an interpretation clause stating a definition such as “health professional”, you would then expect that term to appear consistently within the Bill. Nowadays, all you have to do is Ctrl+F to find every example to ensure that there is consistency throughout the legislation. Due to this mix of use of terminology, are physios or OTs included in these definitions and therefore within Clause 6? Although I accept that Clause 6 was added in the Commons, I am disappointed that the noble and learned Lord, the sponsor, has not got ahead of the curve here and laid his own amendment.
Finally, can we have clarification on whether the registered medical practitioner in Clause 5 can be a private GP or healthcare professional? People may have a financial interest as we believe there can be private providers of assisted dying services. It may be that I am correct in that understanding, and I presume the noble and learned Lord, Lord Falconer, will want to ensure that there is no conflict of interest or incentive in the matter. It is possible that the matter has been covered in the developments under the law since the medical devices report. However, due to the lack of pre-legislative scrutiny, it is not clear and I would be grateful if the noble and learned Lord could clarify that.
Baroness Keeley (Lab)
My Lords, I will speak to my Amendment 155, which is different to the amendments in the name of the noble Lord, Lord Ahmad, on patients who opt out. My amendment ensures that when a person has previously cancelled the process of obtaining assisted dying—having considered it as an option and then rejected it—they can continue to discuss their terminal illness freely with their medical practitioner without being pressed to reconsider assistance to end their life.
As we are hearing, we have had a great deal of evidence on this issue. In its written evidence, the Association for Palliative Medicine of Great Britain and Ireland observed:
“Doctors influence decisions made by their patients in conscious and unconscious ways and are themselves shaped by their personal and professional life experiences … if the patient clearly rejects AD, they may suspect that other treatments suggested by this doctor are driven by an agenda to shorten their lives or may otherwise result in this. This could lead to patients opting not to engage with palliative care or to the loss of trust in a medical practitioner or in the medical profession at a crucial time in people’s lives”.
There is a clear danger here. If a patient has already considered and rejected assisted dying and their doctor raises it again, it may appear as though the doctor is pursuing an agenda to shorten that person’s life. That risk to trust at the very moment when trust is most needed should not be created by the legislation before us.
I also want to refer to evidence given to the Commons by Dr Vicki Ibbett, an NHS specialty doctor in psychiatry with extensive professional and personal experience of suicidal ideation. She expressed serious concerns about the impact of the Bill on suicide prevention work and highlighted that the voices of people with lived experience of suicidal ideation were not heard in oral evidence sessions. Speaking about terminally ill people who may experience thoughts of not wanting to be alive, Dr Ibbett wrote:
“Thoughts of wanting to die have a known association with being given a cancer diagnosis and learning of being terminally ill … Suicidal ideation may have arisen as part of the response to a new diagnosis with a terminal prognosis. It may, therefore, be part of an ‘adjustment reaction’. Adjustment Disorder often settles without professional intervention. If it persists additional support may be beneficial. Assisted suicide should not be facilitated”.
My Amendment 155 therefore seeks to ensure that a doctor may not raise assisted dying with a patient whose medical records show they have previously cancelled a first or second declaration. When somebody has already walked back from that decision, the law should protect them from renewed pressure, intentional or not.
Finally, I will quote from a recent article by Jim McManus, national director of health and wellbeing at Public Health Wales, writing in a personal capacity. He wrote that
“no end-of-life decision happens in a vacuum. Choices are shaped by many things, and sometimes these are inequality, unmet need, patchy palliative care, and the grinding pressures of an overstretched NHS … People expressing a wish to die may be experiencing treatable depression, loneliness, or feelings of being a burden. The Royal College of Psychiatrists has raised concerns that the Bill’s safeguards are insufficient to protect people in exactly these vulnerable states”.
Amendment 155 is a small but vital safeguard, ensuring that when someone has stepped back from assisted dying, their decision is respected. At such a vulnerable moment, no patient should face renewed pressure; our priority must be to protect, trust and uphold compassionate, high-quality care at the end of life.
Baroness Fox of Buckley (Non-Afl)
My Lords, what influenced me to look positively at a number of amendments in this group, and to table Amendment 150, was that some jurisdictions with assisted dying legislation explicitly prohibit doctors from initiating assisted dying discussions. I know that there was a bit of a row earlier about Australia, South Australia and New Zealand, but the truth is that people who have this legislation thought it was important to say that if a doctor raised this with the patient, it would breach professional misconduct. In fact, South Australia even used the wording “must not … suggest”. That is quite hard.
However, it is very interesting that this group of amendments holds importance for all of us. In other words, it cannot be assumed to be either filibustering or messing around, because we are citing places that have assisted dying, and they think that this is a very good and important safeguard—or that it is at least worth debating.
One reason they do that is the issue of autonomy, which I know is very close to the noble and learned Lord. The concern is that, if a doctor initiates discussions about assisted dying, it undermines the very principle of the Bill’s supporters, which is to ensure that the decision regarding assistance to end your own life is yours taken freely; it is patient-initiated. I was rather surprised to hear the noble Baroness, Lady Blackstone, cite the BMA. What happened to the patient-centric approach? We now have the BMA versus the patient. If a patient wants an assisted death, good—well, not good, but they can initiate the discussion and raise it themselves, if they want to; it is an autonomous decision.
Baroness Berger (Lab)
It was so moving to hear the contribution from the noble Baroness, Lady Monckton, and the points that others made about the words that people may hear, including people with learning disabilities. I was reflecting on the evidence we heard at the Select Committee from the National Down Syndrome Policy Group. It is not just the words that people may hear; it is also what they see in front of them. In particular, what was really striking—I had not thought about this—was that even the uniform of the doctor who is having that conversation could suggest a position of authority that someone with a learning disability should show acquiescence to. I thought that was something for us to consider in the light of all these important amendments.
Baroness Fox of Buckley (Non-Afl)
That is very helpful. When I see a uniform, I get a bit quivery as well—
Baroness Fox of Buckley (Non-Afl)
We are obviously at that time of day.
As we have gathered, I do not want doctors to initiate raising assisted dying as a healthcare option at all but, if they do, I do not want there to be any linguistic whitewashing. Sarah Wootton, the chief executive of Dignity in Dying, wrote in her book Last Rights:
“We have to move away from idealised, sanitised, nursery-rhyme accounts of what death can be…towards truthful”,
no-BS—I have abbreviated that—and
“plain-spoken explanations of what could happen”.
Surely these words, which are very powerful, should also apply to conversations about assisted dying or assisted suicide. Let us ensure that, if a doctor is to raise it with patients, there is no attempt to hide behind idealised and sanitised nursery-rhyme accounts of what assisted death would be like.
That is why I was particularly keen to emulate this no-BS approach, which is why I added my name to Amendment 160 in the name of the noble Baroness, Lady Lawlor. This would ensure that, in any discussion that a doctor initiates, they make it clear what is being suggested—namely, that this about ending a person’s life. If a doctor said to you, “Would you like a dignified death?”, that might sound very appealing, but if they say, “Would you like me to give you a lethal drug that means that you can take your own life?”, it might suddenly feel a bit different. We genuinely need to say what we are talking about. A similar concern is raised in Amendment 167 by the noble Baroness, Lady Fraser of Craigmaddie. The doctor must not hide behind opaque language and euphemism that avoids spelling out clearly what they are suggesting and offering, from the first preliminary step to the ending of a patient’s life by, as I said, basically helping them take their own life.
My final point is that we are saving the doctors here. Doctors starting to suggest that you can end people’s lives will completely change the relationship between doctors and patients. You are forcing a doctor to think, “Is it in the best interest of this patient to die, with my help, through the ingestion of a lethal substance?” That must mess up the mind of a doctor, who is trained to keep life going as much as possible. It would erode trust in healthcare relationships moving forward because if, for example, your doctor suggested assisted dying and you said no, you would then have to go back and face the same doctor. I am not entirely convinced that I would be confident enough in the medical practitioner who had told me I would be better off dead to ask, “Can you help me extend my life a bit longer?” I might want to doctor-shop, as they say.
Lord Moore of Etchingham (Non-Afl)
I am perhaps imagining the noble Baroness, Lady Fox, as a quivering wreck. If that is how she feels, you can imagine what it is like for most of us when we face our doctors, so the point was made very strongly.
There are so many good amendments here and I cannot possibly refer to all of them, but I want to drive home, by force of comparison, a point that arises from two things that were said—one by the noble Lord, Lord Rook, and one by the noble Baroness, Lady Hollins, who is no longer in her place. The noble Lord, Lord Rook, said that there is no duty under the Bill to raise assisted dying, which is obviously true. It is very important to pursue what that implies.
The noble Baroness, Lady Hollins, said that by raising assisted dying a doctor is not performing a neutral act, so the question we have to ask is what is going on when a doctor proposes assisted dying. I am saying that if it is not a neutral act it is an ideological act, and that is not something appropriate for a professional.
I shall draw a comparison that will illustrate that point. The Government keep promising to introduce a Bill to ban conversion therapy—and I think that they will do so. The objection to conversion therapy is that it is a form of coercion of the weak and of exploitation, forcing an ideology on people that is considered to be wrong and exploiting their feeling of weakness. That is the danger we face here. Many noble Lords will object, of course—and they will be right—that conversion therapists are quacks whereas doctors are real doctors. In my view, that makes it even more important that the doctors stick to their professional obligations and do not start advocating things they happen to believe are right. If we think about it that way, we will see just how important these amendments are.
Lord Moylan (Con)
My Lords, I rise to speak to a couple of amendments that I have in this group. I start by responding to what the noble Lord, Lord Moore of Etchingham, has just said. I think that he misconceives his opponents—indeed, if I may say so, our opponents. They do not regard the offer of assisted suicide as an ideological act but simply as the offer of a different medical treatment, and this is one of the great divides between us. There are those of us who will not accept that offering to kill somebody or assist them in killing themselves can constitute a medical treatment. I say that purely as a preliminary and without relevance to what I am coming to, which is Amendment 166, which I shall speak to briefly.
This is a minor and technical amendment. It arises from the fact that the Bill, because it has this elaborate bureaucratic process, creates lots of decision points; if you made a decision map, it would be very complicated as you passed down through it. There is one here in Clause 5 that needs correcting or improving. It says in subsection (3):
“Where a person in England or Wales indicates to a registered medical practitioner their wish to seek assistance to end their own life in accordance with this Act, the registered medical practitioner may (but is not required to) conduct a preliminary discussion”.
Now a “preliminary discussion” is a technical term in the Bill. It is a key that opens up the path to assisted suicide—it is not just any old discussion that happens to come early, but a technical term. The registered medical practitioner may at that point have the preliminary discussion, but they do not have to; but subsection (6) makes clear what they do have to do, which is to refer somebody to a place where they can get information about how they can have a preliminary discussion.
My point is that the person making the inquiry about assisted suicide does not actually have to be ill. They might be asking—and quite wrongly asking—about ending their life, without coming within the scope of the Bill at all. I suggest that to avoid the poor doctor being driven off on these two impossible and irrelevant courses, we add to subsection (3), after the words “in England or Wales”,
“who has been diagnosed with a terminal illness”.
I should have thought that the noble and learned Lord would be willing to add that in the interests of clarity, to try to straighten out some of the complexities that the Bill, through its complications, has created.
Amendment 152 would do something that many other amendments in this group seek to do: it would prohibit a doctor or another health professional from initiating a discussion about assisted suicide. So many speeches have been made already about why this is a valuable thing to do that I am not going to attempt to repeat them. Indeed, even the story about my late father that I was going to tell noble Lords has been trumped by the very moving stories from my noble friend Lord Evans of Rainow about his mother and grandmother. Everything that I wanted to say has been said.
Baroness Hayman (CB)
I am grateful to the noble Lord. I was trying particularly to get to the point of the doctor’s role. I understand what he says, and he is quite right. I was trying to advocate that doctors should be able to have conversations with their patients about care, not just medical treatment—which is the phrase he was using before—to look holistically at what that dying person wants and needs, and be able to respond to their desire not to have any more pain, drugs or treatment. The doctor should be able to talk freely about all those options. In my view of the world, that would include assisted dying, but there is a spectrum.
Lord Moylan (Con)
There is, indeed, a spectrum, and the doctor should be able to speak. As I say, there have been 3,000 years of thought given to this. What has resulted from that is a firm conviction that, while some medications that do you good may also do harm—and the doctor has to make careful judgments about that—the active killing of a patient, the actual administration of substances with a view solely to bringing about death, is morally abhorrent.
It may not be morally abhorrent to the noble Baroness, but she has to understand the novelty of this and the violence that she is doing to our inherited moral framework when she—
Lord Moylan (Con)
Let me finish. The noble Baroness puts that forward and says that, to her, it is simply one option. It is not one option; it crosses a line.
Baroness Murphy (CB)
My Lords, “morally abhorrent” is quite distressing. I am a doctor; I have been a doctor for 50 years and have worked with dying people quite regularly in hospital, particularly in general hospitals. I find the notion that doctors all find this abhorrent is utterly wrong. We know that at least half support the principles of the Bill and can recognise that it is something that they would like to support. I am not talking about the medical royal colleges; they take one line—in fact, most of them are neutral about the principle. The reality is not as the noble Lord, Lord Moylan, describes. Certainly, I do not feel the way he does. I find it very offensive when somebody says that it is morally abhorrent. It is not morally abhorrent to help people when they are desperately suffering and to respond during a conversation to what they are talking about and what they are asking for.
Lord Moylan (Con)
My Lords, if I may briefly answer that, I am saying that we have 3,000 years of a moral framework in which it is morally abhorrent. I am not here primarily to protect the sensitivities and feelings of doctors. I am saying what a violent novelty this is that we are embarking upon if we go down this route.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, there are a number of key objectives outlined in the amendments that we have been discussing for some time now, which are worthy of our most serious consideration. I suppose that the burden of the amendment is that doctors should be prohibited from initiating discussions about assisted dying because, if they were permitted to do so, it would fundamentally undermine the long-established patient-doctor contract and could expose vulnerable patients to undue pressure or influence at a time when they are fragile—at a fragile moment in their lives.
The raising of the issue of assisted dying surely must be strictly initiated by a patient and any discussion of the issue must be embedded in a manner that prioritises palliative or other support care over death. If doctors were permitted to initiate the issue of assisted dying, patients could rightly interpret this as an implicit recommendation on behalf of the medical profession and it could be seen as a choice influenced by authority, or even fear, and not a free choice. It must be acknowledged that, within society, doctors have an exceptional moral and social authority. A person who feels vulnerable, marginalised or devalued can easily be susceptible to pressure and influence if the recommendation or initiation of the issue of assisted dying comes from their doctor.
The moment of diagnosis of a terminal or life-limiting illness is an earth-shattering moment for most people within society. As a minister of religion for over 50 years, I have been with thousands of such people, who, when they have received the diagnosis that they have a terminal illness, feel shattered and absolutely broken. I can tell noble Lords that that leads to a multiplicity of emotions. I have also had many loved ones and friends who have faced that moment. The immediate shock of hearing those words can turn into depression and, even for a period, it can turn into suicidal thoughts and a feeling of “It’s all over anyhow; therefore, let me get out”.
However, we all know from personal experience—or many of us certainly know—that these thoughts at that earth-shattering moment can dissolve over time, whenever people are surrounded with love, aided by a loving conversation or their personal faith, or supported within the family or the community context. Indeed, the initial devastation I have seen turns dramatically into a quiet confidence: into a determination to fight for life and to live a fulfilling life, even though the person is in the midst of adversity. That is something to be cherished and praised. At the moment of despair, when a terminal diagnosis is given, how improper it would be for any doctor to raise or to suggest assisted dying as a more sympathetic way out of their pain or a free exit from life.
Sadly, the personal and deep doctor-patient relationship is no longer the reality that it used to be, and in multi-doctor practices, you may never see the same doctor again for months or even years. They do not really know you as they used to know you. To pretend that somehow it is the old way is not reality—it is living in a different world. Therefore, often no personal knowledge of that patient is held by a particular doctor. Any deep understanding of their mental health, their family life context, or societal or financial pressures that that person may be experiencing is negligible, yet it is the moment of crisis in a life.
During previous debates, some noble Lords and Baronesses have been rebuked for using the term “assisted suicide” instead of “assisted dying”. But does “assisted dying” terminology not mask the reality of what we are discussing? Normalising discussions about ending life before the natural-appointed, or God-appointed, time surely risks reframing suicide as a legitimate medical response to pain or distress, which is outside the scope of the Bill—at least, that is what we are told.
Allowing but not requiring doctors to raise assisted dying with their patient gives me no comfort, as I feel that it would lead to medical professionals being open to criticism or challenge. It will no doubt lead to inconsistency among professionals. Will patients seek to move from one general practice to another because the doctor they are moving to supports them in assisted dying? Will they have to move because their GP has a sincerely held conviction about the sanctity of life and will not participate in the practice of assisting a person to die?
A doctor permitted to discuss assisted dying with a patient surely cannot be just any registered medical practitioner. For clarification, I ask the noble and learned Lord, Lord Falconer, to confirm that the provision in Clause 5 is not limited to the patient’s GP, and that treating consultants, specialists or doctors who have a minimal relationship with the patient or none are not restricted from giving this advice. Can he also confirm that there are no restrictions on the setting in which a doctor might give this advice—a hospital ward, an out-patient clinic or elsewhere?
Lord McCrea of Magherafelt and Cookstown (DUP)
I am finishing with this quotation, and it is just a couple of sentences:
“We also know that when you acquire disability, which most people do … it is absolutely frightening … If doctors are not on our side because they are thinking, ‘Should we mention the fact that they could have an assisted death?’, that poses a big cultural issue for the NHS, but also for us having confidence in the NHS”.
Baroness Stedman-Scott (Con)
My Lords, I will speak to the probing Amendment 161 in my name. It asks the simple but profoundly important question of whether registered medical practitioners should be granted a blanket legal protection to raise the possibility of ending any person’s life or whether that protection should be carefully and responsibly limited to patients already in their care.
At the heart of this debate lies the issue of safety and trust. The relationship between a patient and their doctor is not a casual exchange. I hope it is a deeply personal, often vulnerable, bond built on confidence, continuity and professional responsibility. When someone receives a terminal diagnosis, they are not merely confronting medical facts; they are confronting fear, uncertainty and the fragility of their remaining time. In that moment, words matter immensely. To grant blanket legal protection to any registered medical practitioner, regardless of whether they have an established clinical relationship with the individual, risks undermining that trust. It risks introducing the possibility that a suggestion about ending life could come from a professional who does not know the patient’s history, values, mental state, family circumstances or vulnerabilities.
Amendment 161 does not seek to obstruct lawful medical practice or to deny terminally ill adults the autonomy that the Bill intends to provide. Rather, it seeks to ensure that conversations about assisted dying occur in the right context, within a relationship in which the doctor knows the patient, understands their condition and is responsible for their ongoing care.
We must consider the subtle power imbalance inherent in clinical settings. A doctor’s words carry authority. Look at the effect they have on the noble Baroness, Lady Fox, at times. For a patient who is elderly, disabled, isolated or feeling like a burden, even a carefully phrased suggestion can carry unintended weight. If such a conversation is initiated by a practitioner with no established duty of care, we risk normalising a culture in which ending life becomes a broadly available option rather than a carefully safeguarded patient-led request.
Limiting legal protection to practitioners involved in a patient’s care and case strengthens safeguards. It ensures that any discussion arises from clinical knowledge, not abstract eligibility; it reinforces accountability; it reduces the risk of inappropriate suggestion; and it protects vulnerable people feeling steered towards a decision at a moment of profound weakness.
Autonomy is meaningful only when it is protected from subtle coercion, even unintentional coercion. By supporting Amendment 161, we are not diminishing choice: we are strengthening the ethical framework in which that choice is exercised. In matters of life and death, precision, boundaries and safeguards matter. Amendment 161 offers a proportionate, reasonable and ethically sound safeguard. It preserves trust in the medical profession, protects vulnerable patients and ensures that, if such conversations occur, they do so within the context of established clinical responsibility. For those reasons, I urge the Committee seriously to consider the intent and spirit behind Amendment 161.
Baroness Cass (CB)
My Lords, I say to the noble Baroness, Lady Fox, that my mother held doctors in great esteem and reverence until the day that I and my rowdy friends qualified, and then the whole mystique was exploded overnight.
My serious point is that I am still mystified by Clause 5, because it remains completely unclear who is having this preliminary discussion. Even if we safeguard against the doctor raising the subject of assisted dying without it being initiated by the patient, none the less this clause is still opaque about who this person is. If, fortuitously, the patient has a good relationship with their GP and is able to raise the matter and have a full discussion, they may be able to cover all the things that are listed in this clause—diagnosis, prognosis, palliative care, hospice, available treatments and so on—but, if it is not their GP, who is the medical practitioner supposed to direct them to? Unlike the co-ordinating doctor and the independent doctor, they do not have the right written into the Bill to access the patient’s records or make inquiries of the person who is looking after them, so I am unclear about how they are supposed to discharge all these duties.
Also, it does not reflect reality. If somebody is starting to think about possibly seeking an assisted death, they may ask their GP about one part, their priest about another aspect, their next of kin about another aspect, and they will gradually form a view. But to lay it down in statute seems to be putting an additional hurdle in the patient’s way. Surely, at the time when they want to ask about the detail of assisted death, what it might entail and its feasibility, the person to seek advice from is the co-ordinating doctor or the first doctor within the voluntary assisted dying service, who will have had the training and will have some knowledge to be able to say with confidence what the individual should expect. So I strongly support my noble friend Lady Hollins’s view that Clause 5 should not stand part of the Bill, because it seems to be a complete muddle that we have been discussing various aspects of for some time now.
Lord Jackson of Peterborough (Con)
My Lords, I think the debate that we have had for the last two and a half hours shows this House in a very positive light. It goes to the very essence of what some of us who are sceptical about the Bill believe to be the most crucial issue: how the Bill will impact the most vulnerable people in society. I say in passing how moved I was by the wonderfully powerful and emotional speech from my noble friend Lady Monckton, as well as by my noble friend Lord Shinkwin’s speech on his amendment.
Noble Lords might ask a rhetorical question: why are we spending so much time on this particular group? I will offer an anecdote to your Lordships on why it is important that we have spent this time talking about people with disabilities and learning disabilities, and particularly people with Down syndrome. In the summer of 2024, my 91 year-old father was admitted to Peterborough hospital and spent a number of hours in what is euphemistically called “ambulatory care”—which is the back of an ambulance—before being able to access a trolley for a number of hours. As it happens, he was terminally ill. He died a few weeks later from bladder cancer that had metastasised to the rest of his body, but he did not have a diagnosis of terminal illness.
When I reached the hospital, his belongings were adjacent to where he was. At the bottom of the Sainsbury’s carrier bag that held all his personal belongings was a “Do not resuscitate” form that had been filled in. In fact, I think it was what they call—again, euphemistically—a “respect form”. It had been countersigned by a doctor without any discussion with myself or my two brothers. As your Lordships know, none of us are shrinking violets. My brother is a decorated police officer and my other brother is a world-leading scientist and a professor of psychology. We are all quite smart people, but this form had been completed without any discussion with the family.
Indeed, it was alleged that my father had had capacity to sign that form and had agreed to it being countersigned by a doctor. That was a very significant development. I found myself having to front up a difficult conversation with the clinicians in accident and emergency and the geriatrician who was on duty that day. I thought to myself: what if my father had a learning disability? What if he could not read or write properly? What if he was anxious about dealing with bureaucracy and professional people? I thought about how much more difficult it would have been if he did not have a family: if he had not had three sons watching out for him and protecting his interests. How much difficulty would there have been in him challenging the professional bona fides and authority of a clinician—a medic who is well educated and articulate and knows their profession.
I posit that that is the reason we have spent so much time debating these issues. It is not for people such as my father, who, as I say, was terminally ill, but for the many people who have great difficulty: people who are already in a position where they are sad, lonely, depressed, bereft and distraught after a diagnosis of a terminal illness. Those people need assistance in primary legislation to protect their interests, because otherwise no one else will look out for them. That is not to say that those doctors were in breach of the Hippocratic oath, or that they were not compassionate, empathetic, caring and feeling for my father and many thousands of other people in similar situations, particularly old people. Nevertheless, they are busy and stressed and that form was filled in in good faith.
Lord Empey (UUP)
In the modern NHS—not the NHS of five, 10 or 20 years ago—a patient can be in the back of an ambulance for hours outside the hospital, and then be put in a corridor before they get to a ward; and they might see a consultant on the ward round only once or twice a week for a few minutes, if they are lucky, and may not see the same consultant again for weeks. That fundamental change in the nature of our health service over recent years, with the huge additional pressure and demand, makes these protections all the more important.
Lord Jackson of Peterborough (Con)
As usual, the noble Lord makes a very apposite point and reinforces my arguments.
Time is pressing, so if I can beg the indulgence of your Lordships’ House, I will just develop slightly my support for the points that my noble friend Lord Shinkwin made at the beginning of this debate. The danger that terminally ill patients, accustomed to trusting medics who care for them, will sense that they should do what their doctor is telling them when they are only suggesting the option of assisted suicide is greatly heightened where, for instance, learning disabilities are in the mix. My noble friend made reference to Ken Ross of the National Down Syndrome Policy Group, who was quite right when he said:
“People with Down syndrome have a very complex and unique speech and communication profile. They are highly suggestible. Even someone wearing a uniform could suggest a position of authority to them and something they should show acquiescence to. The acquiescence bias risk from people with Down syndrome is extraordinary.”
This was mentioned by my noble friend.
“They could have a seeded view around what they think that person wants to hear and talk about without fully understanding the position”.
I assume that by “a seeded view”, Mr Ross means that the idea is planted in their mind, by a doctor mentioning assisted suicide, that this is what that doctor would prefer. Others, more expert, might put me right.
Other similar points were made by my noble friend Lady Monckton, in her superb speech, about the dangers of someone such as her daughter Domenica, who has Down syndrome, being advised by a doctor new to her that a terminal condition might mean it is best to have her life ended—without any legal obligation to discuss this with parents, other family members or someone independent, as the amendments from the noble Baroness, Lady Grey-Thompson, propose. As she said, fear, terror and a total lack of comprehension would sit alongside her daughter’s highly suggestible disposition.
The Commons, in fairness, did ensure that the Bill now has extra safeguards for those with learning disabilities, but these are focused on training and an advocate from the first declaration—far further down the road than the preliminary discussion. Actually, the experience in Australia is that training around the specific bespoke issue of coercion is very limited, and that needs to be looked at. Perhaps the noble and learned Lord will address that in his concluding remarks. This is when framing effects will occur and will be the starting point for vulnerable people misunderstanding the options or feeling pressure. By the time an advocate is in place, the person they are working for might have a fixed idea, which the advocate will not want to ride roughshod over. Clause 5 therefore needs strengthening to address this inconsistency, which is a key concern of experts in learning difficulties.
Hence the question that some noble Lords may be asking, about the need for prohibition, particularly where Down syndrome and learning disabilities are in play, because these might be the patients most likely to provoke cost concerns but least likely to discern that this motivation, not their best interest, is the main reason for raising the possibility of assisted suicide. I have to say that that would be a minority of cases, and I am not making that point about the vast majority of clinicians.
In conclusion, it is for these reasons that I strongly support Amendment 162 and others in this group.
Baroness Finlay of Llandaff (CB)
My Lords, I have two amendments in this group. We have heard a lot of comments about the real world and what is actually going on now, today, out there in healthcare. It will be very interesting to hear how the noble and learned Lord, Lord Falconer, responds to all the criticisms and to the way the inherent dangers in Clause 5 have been highlighted.
My Amendment 201 concerns children. A little boy with advanced malignancies said to me, “I'm going to die when my goldfish dies”. He went on to talk through what he wanted when he was dying and how he would play football in heaven with another boy who had died recently. Not long after, his goldfish was found floating. My strenuous attempts to resuscitate his goldfish failed, and he gently died soon after.
That was some years ago. Today, children live off the internet, not just off what they hear from other children. They know about the debate on this Bill—some raise it in “Learn with the Lord” sessions. If a child is asking questions about this, they must be able to express their fears if they are already ill. They often speak with remarkable frankness. Children’s awareness is phenomenal. They deserve gentle, honest planning of their care that also explains why they are ineligible for assisted suicide. Hence my wording, but the wording of the noble Lord, Lord Rook, provides much clearer guidelines for clinicians involved, to allow them to listen but in no way to hint that the child will be eligible.
Assisted suicide is not a medical treatment. It falls outside McCulloch and Montgomery rulings, hence my Amendment 159. As has been said, if a doctor raises assisted death unprompted, the implication is that this is something you should consider—a tacit implication that this might be your best option. Addressing the comments by the noble Baroness, Lady Hayman, it is a doctor’s duty of care to sensitively explore with open questions and careful listening, to discuss whatever the person wishes to discuss at their initiation. That is patient autonomy and control. Mencap, the Association for Palliative Medicine and the Royal College of Psychiatrists have all warned how patients’ trust gives doctors a dangerous ability to steer decisions if the suggestion comes from the doctor.
Listening with undivided attention is crucial in gentle, honest communication in the face of patients’ anguish. Patients hang on to our every word, so suggesting it as an option signposts them in that direction. It abandons suicide prevention duties under the Mental Health Act and the state’s duty under Article 2 of the European Convention on Human Rights. The amendments overall have a common theme of making the autonomy of the patient paramount in these discussions, their being able to raise assisted death in their own time, at their own pace and at their instigation. I hope these amendments will be taken heed of.
Baroness Fraser of Craigmaddie (Con)
My Lords, I thank my noble friends Lord Jackson and Lady Monckton—whose speech was quite spectacular—for raising the example of DNRs. It is very good example when we are talking about who can raise assisted dying in preliminary discussions.
I want to give a very brief illustration. When my father was in hospital, five different medical professionals came into his room and took us, his family, aside, to get him signed up to a DNR. He did not really want that. It might have philosophically been the right medical thing to do, but he was not in the right place. He did not want to be asked, and certainly not five times by five different medical professionals. It left a rather bitter taste in our mouths, because when we were able quietly, as a family, to have that discussion with him, he did have a DNR. We were fortunate to have that time, rather than him having something put at the end of his bed with the Sainsbury’s bag.
This group of amendments is really important. They are all similar, saying that we need some guidance on who can raise the discussion and under what circumstances. If we really believe that patient autonomy is important, then something should come from this group of amendments and be in the Bill.
Baroness Coffey (Con)
My Lords, briefly, Clause 6 standing part has been opposed by my noble friend Lord Moylan because of other aspects of amendments he has tabled. I very much support Clause 6 staying in the Bill: it was the one amendment on Report in the Commons where there was a significant majority in favour. In particular, I found it astonishing that anyone could even consider raising this with a child: it disappointed me that the sponsor of the Bill in the Commons voted against that amendment, but I am relieved it got through. It is also worth pointing out to the Committee that there is slightly different wording between Clause 6 and Clause 5(1), which my noble friend Lord Moylan’s Amendment 152 addresses by making sure “other health professional” is included, not just “medical practitioner”.
I have also seen multiple times what my noble friend Lady Fraser has just referred to. It is very irritating, especially when somebody is being taken home to die, if, against their wishes, DNR had been put in place by medical practitioners and then had to be rescinded. It is somewhat frustrating in that regard.
My noble friend Lord Goodman was succinct; I think that is partly the training of a journalist, or it might have been two years of quiet contemplation when he considered his vocation in an abbey on the Isle of Wight.
I want to briefly raise one point: the noble Baroness, Lady Blackstone, referred to the BMA. I am conscious that it is a trade union for doctors and does a lot of work on their behalf, but it is not a clinical body. However, the BMA pointed out its concerns that, without it, there would be uncertainty and legal risks for doctors. The BMA went into more detail on that in its evidence. In contrast, the Medical Defence Union’s written evidence to the Commons Select Committee—by the way, the MDU is an organisation that specialises in providing indemnity and other legal issues regarding doctors—came up with a different thing. It said:
“The MDU is concerned that the legislation, as … drafted … leaves doctors who do raise it at greater risk of a complaint”,
and then subsequent legal things.
So, as has also been pointed out, at what point would this ever be raised? I support more generally the approach and understand that, if a doctor is asked about this, of course that should be open to a response, unless they do not wish to do so, and part of Clause 5 covers that. But, overall, that initiation should not be in the hands of the medical practitioner, and we will come on later in further clauses to debate the recording of such discussions.
Lord Harper (Con)
My Lords, I shall focus my remarks on two points. One is that I thought the speech of my noble friend Lady Monckton of Dallington Forest was very powerful. I strongly support what she said about proper safeguards for people with learning disabilities and she has an amendment which deals with that. But I really want to test the thinking here, because there is a view, and this is where I settled, on whether medical professionals should be able to raise things proactively.
What I was thinking through—I would be interested in what the noble and learned Lord, Lord Falconer, thinks—is that the Bill is obviously about, first, legalising assistance to help someone take their own life, but it is also about putting a process in place, and those are two separate things. I was also thinking about the thing that is currently lawful, which is that someone is able to take their own life if they do not require assistance. I do not know whether it is just me but, if you were diagnosed with a terminal illness and suggested to a medical practitioner that you were thinking of taking your own life if the Bill were not in force, as far as I understand it—there are many in this House who can correct me—the medical practitioner has a duty under various existing suicide prevention strategies to take steps to try to prevent you taking your own life. They are absolutely not supposed to help you; they are supposed to try to stop you, up to and including using provisions in the Mental Health Act.
Earl Howe (Con)
My Lords, the sheer number of amendments from noble Lords on all sides of the Committee that are seeking to prevent medical practitioners initiating a conversation about assisted dying with a patient demonstrates how strongly noble Lords feel about this issue. As a minimum, it is clear that many noble Lords do not feel that the Bill’s current drafting is sufficient. Although we have heard some counter-arguments during the debate, it is now incumbent on the noble and learned Lord, Lord Falconer, to set out in some detail his reasons for allowing registered medical practitioners to initiate these discussions.
Following on from that, there was one particularly moving contribution to this debate: the speech from my noble friend Lady Monckton. The case she made from her own family perspective in support of my noble friend Lord Shinkwin’s Amendment 162—to prohibit the topic of assisted dying being raised with someone with Down syndrome or a learning disability—was one I found especially powerful. I hope that the noble and learned Lord, Lord Falconer, will acknowledge that this is a particularly sensitive aspect of the issue which needs to be addressed.
There are two additional issues I should like to pick up. I was particularly interested in the amendment tabled by the noble Baroness, Lady Grey-Thompson, which requires a minimum 48-hour delay between diagnosis and any conversation about assisted dying. Given the shock that a patient will feel when receiving a diagnosis that could make them eligible under the Bill, it seems right and appropriate that they be given the space and time to process the news before facing the question of potentially ending their own life. Is the noble and learned Lord, Lord Falconer, willing to consider how that degree of sensitivity might be incorporated into the Bill—or, failing that, into guidance—to ensure that patients who receive some of the worst news they will ever hear do not immediately feel the need to address a choice as momentous and emotive as whether they wish to end their own life?
Finally, the amendments in respect of persons aged under 18 are worthy of the noble and learned Lord’s careful consideration. The Bill is designed to create a legal right for those aged over 18, not for children, so surely it follows that its provisions should not be raised with children. I therefore hope the noble and learned Lord will carefully consider the protections for children that the Bill could usefully incorporate.
Baroness Blake of Leeds (Lab)
My Lords, I thank all noble Lords who have contributed to this very important debate. As usual, I will limit my comments to amendments on which the Government have major legal, technical or operational workability concerns.
To begin, key concepts in Amendment 149, moved by the noble Baroness, Lady Grey-Thompson, are unclear. It will therefore be difficult to assess whether the duties have been discharged. For example, it is not clear who must co-ordinate and undertake the suggested multiagency assessment of support needs and who is responsible for ensuring that those needs are fully funded, so it may be impossible to demonstrate that these criteria have been met.
Amendment 152, tabled by the noble Lord, Lord Moylan, seeks to prohibit registered medical practitioners or any other health professionals from raising the subject of provision of assistance under the Bill. If passed, this would be inconsistent with the discretion currently afforded to the registered medical practitioner in Clause 5(2), which makes it clear that a registered medical practitioner may exercise
“their professional judgement to decide if, and when, it is appropriate to discuss the matter”.
This amendment would therefore create conflicting duties and may lead to confusion about whether a registered medical practitioner can raise the issue of assisted dying.
Lord Moylan (Con)
Briefly, as it is of no interest to other Members of the Committee, but it is surprising that, with all the legal advice offered to her, the noble Baroness has not noticed that there is a consequential amendment in my name in the same group—which I referred to—which deletes subsection (2), since I too have spotted that there is an inconsistency and I have dealt with it.
Baroness Blake of Leeds (Lab)
I thank the noble Lord for his comments. It is still worth raising these matters in this context to avoid any confusion.
Amendment 162, tabled by the noble Lord, Lord Shinkwin, would mean that a registered medical practitioner could not raise assisted dying with any person with a learning disability, including people with Down syndrome, unless they raise the subject themselves. This restriction would apply to all persons with a learning disability, including where the person has the capacity to make a decision to end their own life.
The purpose of Amendments 205, 207 and 207A, tabled by the noble Baronesses, Lady Monckton and Lady Grey-Thompson, appears to be to prevent a healthcare professional raising the subject of the provision of assistance with a person who has a learning disability or autism, unless that person has a family member, independent person or guardian present. Under Amendment 207A, both a family member and an independent person would need to be present. These amendments do not draw any distinction between varying levels of individual need. As drafted, a registered medical practitioner would be required to establish in all cases that the person does not have autism or a learning disability before raising the subject of an assisted death, unless a family member or independent person is present.
Amendment 200C, tabled by the noble Baroness, Lady Berridge, would mean that no person could raise the provision of assistance with those under the age of 18, whether online or otherwise. Amendment 209, tabled by my noble friend Lady Goudie, prohibits any adult with a duty of care or responsibility for a person under 18, including but not limited to guardians, social workers, educators or carers, from raising the subject of assisted dying “with such a person”. These amendments would be extremely difficult to enforce, due to their breadth and ambiguity. They may, for example, prohibit parents or guardians from discussing the broad issue of assisted dying with their children.
Finally, I bring to noble Lords’ attention that amendments discussed here, including Amendments 149, 162, 200C, 205, 207, 207A and 209, could give rise to legal challenge on ECHR grounds, in particular challenges brought under Articles 8, 10 and 14. These amendments would require reasonable and objective justification to comply with ECHR obligations.
I make no comment on the other amendments in this group. However, as noble Lords will be aware, the amendments have not had technical drafting support from officials. Therefore, further revision and corresponding amendments may be needed to provide consistent and coherent terminology throughout the Bill.
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
My Lords, for the benefit of the Committee, I will let noble Lords know that when we have heard from my noble and learned friend Lord Falconer of Thoroton, I intend to bring the Committee to a conclusion. It would be wiser to wait to start the next group next week, rather than to get half way through it and have all the problems about who was or was not here, and so on. If colleagues are thinking ahead to the next group, it will not be called until next week.
Lord Falconer of Thoroton (Lab)
My Lords, I pay tribute to the noble Lord, Lord Jackson of Peterborough, for telling us about the circumstances of his father’s DNR, to the noble Lord, Lord Evans of Rainow, for telling us about the circumstances of the deaths of his mother and his grandmother, and the noble Baroness, Lady Fraser of Craigmaddie, for telling us about the circumstances in which her father became ill.
I also pay an especial tribute to the noble Baroness, Lady Monckton of Dallington Forest, whose speech was incredibly powerful and moving, and obviously requires a detailed answer from me in policy terms, about people who have learning disabilities and what may happen to them. It also has relevance not just for those whose parents are still alive, but much more significantly, for when their parents are gone. There therefore needs to be a solution beyond simply ensuring that a family member is there. I pay tribute to the influential nature of the speech that the noble Baroness made in relation to this. Whatever happens to this Bill—and I very much hope it becomes law—what she said will, I am absolutely sure, have an influence on its terms, and we should respect that.
There are three categories that I need to deal with in relation to this. First, what is the position in relation to people who do not have a disability? Secondly, what is the position for those who do have a disability? Thirdly, what is the position for children?
Baroness Cass (CB)
I am still not sure what a person is supposed to do if they cannot access a doctor who is in possession of the full information. If the GP, for example, has a conscientious objection, that potentially puts a hurdle in that will stop them being able to move on to the next stage—they will have to cast around to find a doctor who can have that full discussion. I would have thought that the proponents of the Bill would not want that to happen.
Lord Falconer of Thoroton (Lab)
I completely understand what the noble Baroness is saying. Suppose you cannot find a doctor with that information about you—the noble Baroness, Lady Cass, is not talking about the sorts of cases that many noble Lords were talking about, where, by raising it, you are leading to a situation where somebody might be persuaded when they otherwise would not—the answer would be that you would have to consent to all your records being given to a doctor with whom you could have the conversation.
Noble Lords should remember that Clause 5(6) says:
“A registered medical practitioner who is unwilling or unable to conduct the preliminary discussion mentioned under subsection (3) is not required to refer the person to another medical practitioner but must ensure that the person is directed to where they can obtain information and have the preliminary discussion”.
So you can get assistance from a doctor who is not willing to have the discussion. The noble Baroness is absolutely right that, in order to have the discussion, the doctor has to have all the information I referred to. If no doctor in possession of that is willing then you will have to consent to it being given to somebody else—and a patient can consent to their records being given to another doctor.
I turn to the position for those with a disability and, in particular, will deal with the point so powerfully raised by the noble Baroness, Lady Monckton. My Amendment 548A would require that anybody providing a relevant activity under the Bill—new subsection (8) defines “relevant activity” as including “conducting a preliminary discussion”—must not carry out that relevant activity unless the person seeking assistance has an “independent advocate”.
The amendment says that
“‘qualifying person’ means … a person with a mental disorder (as defined by section 1(2) of the Mental Health Act 1983) … a person who (in the absence of support) would experience substantial difficulty in doing one or more of the following … understanding relevant information … retaining that information … using or weighing that information as part of the process of making relevant decisions, or … communicating their views, wishes or feelings”.
Where there is to be a preliminary discussion, the person has to be accompanied by an independent advocate, unless—this is in new subsection (3) to be inserted by the amendment—the person
“seeking assistance informs the relevant person that they do not want an independent advocate, or … where the relevant activity is conducting a preliminary discussion, the person seeking assistance informs the relevant person that they are content for the preliminary discussion to be conducted without them having an independent advocate”.
What the sponsor of the Bill is aiming at there is as follows. If there is any question about one’s ability to process information—what the noble Baroness, Lady Monckton, said about the suggestibility of people with Down syndrome is incredibly resonant—I would envisage the position to be that you have to have an independent advocate but you may not need to have one if it is known to the doctor, or if it becomes apparent, that a family member would be adequate. That would be a reason for not having an independent advocate. But, if there is no family member—for example, if the person suffering from a disability has no parents, siblings or whatever—there has to be an independent advocate.
It may be that the area I should focus on in the amendment on independent advocates is this: you can say no to the need for an independent advocate, maybe because you have nobody else, but is that too risky? I need to consider that, given the point on suggestibility raised by the noble Baroness, Lady Monckton, and Mr Ross of the Down syndrome advisory policy group, whom I have discussed that with.
The points made about people with a learning disability are, I hope, addressed in my amendments on an independent advocate. Ultimately, where there may be no family, the independent advocate has to be the rock-bottom protection.
I move on from that to children. I remind noble Lords that, as the noble Baroness, Lady Coffey, made clear, Clause 6 says:
“No registered medical practitioner or other health professional shall raise the subject of the provision of assistance in accordance with this Act with a person under the age of 18”.
It cannot be raised, and I completely stand by that. What happens if it or something like it is raised by a person who is under 18? I found what the noble Baroness, Lady Finlay, said, to be resonant and insightful. You have to deal with it in a sensible way. You cannot just say, “I’m afraid I can’t talk about that. That’s the end of it”. You have to treat the person with a degree of maturity.
The noble Baroness, Lady Finlay, supported Amendment 211, in the name of the noble Lord, Lord Rook, which says:
“If a person under the age of 18 raises the subject of the provision of assistance under this Act, the medical practitioner must refuse to discuss the subject and shall inform the person that such assistance is not available to individuals under the age of 18”.
I am sure that the medical practitioner should say that it is not available to persons under the age of 18, but I am not sure that it would be wise for the Bill to prescribe that no further discussion is appropriate—particularly for 17 year-olds, who are often quite perceptive. The idea that you cannot have any discussion about this is just not practical or sensible and it would drive people to other sources, which may be more dangerous.
Lord Harper (Con)
I will press the noble and learned Lord on that point. The ability for medical professionals to discuss this with patients is prescribed in the first part of Clause 5, but only
“in accordance with this Act”.
If you were a medical professional and a child raised this with you, and you started discussing it, would you not be obliged, under your legal and professional suicide prevention duties to that child, to take steps to protect them? Under the Bill, they would not be eligible to have an assisted suicide. I do not understand this—and the noble and learned Lord has not answered my question about what happens with adults—but if a child goes to a medical professional and starts suggesting that they want to end their life, that medical professional is under a clear duty to take steps to protect the life of that child and even to take steps to force that to be the case. Unless I am missing something, nothing in the Bill will change the legal and professional duties on that medical professional.
Lord Falconer of Thoroton (Lab)
The noble Lord is right. The point I was making was that, if it is raised, it is not sensible to just close down the discussion altogether. There has to be an informed discussion, which is completely consistent with the duties that the noble Lord referred to. The idea that there cannot be any discussion about it, which is what I think the amendment in the name of the noble Lord, Lord Rook, says, is, in my submission, neither practical nor wise. It is for the doctor to decide how to deal with it, of course in the context that the noble Lord mentioned.
Finally, if the Bill passes, Parliament will have decided that the option of an assisted death for those who are terminally ill is an appropriate option. It may well have come to that conclusion because it thinks that it is a compassionate option to give people, as has occurred in so many other countries in the world. Once Parliament has said that that is the position, those people who are in a position to access assisted dying should be given appropriate assistance to do so. That is why, in my view, it is perfectly acceptable for it to be discussed by doctors as an option for people who are terminally ill, because they will look to those who are caring for them for assistance to determine how their life ends. I am not sure whether the noble Lord, Lord Moylan, was saying this, but I do not believe that adopting that option is morally abhorrent.
Lord Harper (Con)
I will press the noble and learned Lord because I genuinely want to understand what is going to happen. This is quite a big deal for the health service and other professionals in this area. When, under the Suicide Act, which the Bill amends, somebody trying to take their own life stopped being a criminal offence, we did not suddenly say that we thought that was an acceptable thing for them to do; we recognised that making it a criminal offence did not make a lot of sense. Therefore, just because we make assisted suicide lawful—getting assistance to take your own life—in itself that does not change the suicide prevention duties.
I want to understand, if the Bill were to become law, what steps the Government would have to take on the legal duties that medical professionals have under the suicide prevention duty and their professional duties; otherwise, I do not think we are being very consistent here. I do not want medical professionals, who we are asking to do this work, to be conflicted or to think they are at risk. Organisations such as the Medical Defence Union think we are in great danger of putting those medical professionals in that invidious position, and the noble and learned Lord has not really answered my question satisfactorily—or certainly not to my satisfaction.
Lord Falconer of Thoroton (Lab)
The point of this part of the Bill is that it is a legitimate option. If the noble Lord is saying that because we have suicide prevention policies in other areas, we should still treat it as something that we should not in any way encourage or help people to access if that is what they want, that is wrong. The true position is that, once it becomes an option, subject to the safeguards being gone through, it is something that people should know about and make their own judgment about.
Baroness Berridge (Con)
I do not think we have fully understood these two categories. I was grateful to the noble and learned Lord for the meeting with Professor Ruck Keene. It is clear, particularly when you are talking about the Mental Health Act, when there are two different statutes you can choose from, that we need to be clearer about that for clinicians. So, unfortunately, even at this late stage, I am afraid I will have to lay some amendments so that we can really talk about this in detail, because it is a matter of concern, particularly to psychiatrists.
On the points I have made about children, I accept the point from the Minister that the probing amendment is probably too wide. However, we have not even had the comments on the categories of people who can now raise this with children, such as schools, et cetera. I also raised the point—I am grateful that the noble Lord, Lord Tarassenko, is now in his place—that I believe we also now have this gap with regard to what advertising prohibits. You have medical practitioners unable to raise it with under-18s, but then you have a whole wealth of technology in between that, which can, as we know, even with a mistaken question, raise this issue with under-18s. What does the noble and learned Lord envisage will happen in those scenarios, which are at the moment subject to legal cases in other jurisdictions?
Lord Falconer of Thoroton (Lab)
A whole range of issues is covered to a large extent by the Online Safety Act in relation to the promotion of suicide, particularly to young people. That, in a way, is a separate issue from this issue. I fully encourage and support all attempts to try to reduce the risks to young people, but I am afraid that the Bill cannot take that on, on its own.
Baroness Grey-Thompson (CB)
My Lords, I thank all those who have contributed to the debate on this group of amendments on raising AS in conversation and preliminary discussion, including training.
I thank the Minister for her response to my amendments. However, given the government response and the question about funding, it lays open the bigger question of the whole Bill that many of us are grappling with: who pays for this and what that final bill may be.
The debate has gone in a slightly different direction from what I expected. It is interesting that the noble and learned Lord, Lord Falconer, differentiated in his response between non-disabled and disabled people. Independent advocates will come up in a later group, but I think it is really important that it is understood, as part of this group, when we are talking about learning disabilities, that it may be very difficult for someone with a learning disability to understand what an independent advocate is and what their role is. They may say that they do not need it but not really understand what they are saying yes or no to. We will cover that next week.
I am slightly worried that there may or may not be guidance from the GMC and/or the Secretary of State. I will be very interested to discuss that with the noble and learned Lord away from this Chamber. This is where we probably disagree. Those who support this Bill will talk about Victoria and say that it gives greater access; I say it is a slippery slope and that it is making it easier for a wider group of people to enter this process. We have covered in previous amendments the use of language. “Person with a disability” is not used in the Equality Act. I had hoped, through my contributions to previous debates, that there was some understanding of it and why organisations of and for disabled people are worried about this Bill. It is not just about the contents of the Bill; it is about the language of the Bill. Organisations of and for disabled people use the social model. I will not go through that again, but the language they choose to use is “disabled people”.
The noble Lord, Lord Weir, has apologised for having to leave, but he raised the issue of how disabled people are treated. I am going to raise a difficult question, not to anyone in particular but to the whole Chamber. It is rhetorical. How many in your Lordships’ Chamber have ever felt sorry for me because I am a wheelchair user? My previous career as an athlete negated some of that feeling because, if you like sport, competing for Great Britain is a privilege: of course it is. In my second career, however, I consider the way that I am treated every single week. I am a long way from my sporting career now but, if I am rushing to a meeting, I luckily do not hear “It is not a race” too often these days. I know: I am not in my racing chair and I am not wearing Lycra. I am not sure sometimes, when people say this, whether they think they are being kind, sweet or funny. I did not have a traumatic or dramatic accident; I was a wheelchair user from a very young age. There were a few points in my life when I had three spinal surgeries and experienced terrible pain, but I am healthy.
The noble Lord, Lord Weir, raised the different views that doctors have of people. I have said before that my husband had a traumatic accident at 21. He broke his back and spent nine months in hospital. Many people assumed that it irreparably changed his life. It did not. He went on to complete his PhD. He changed sports; he went from cycling to wheelchair racing and he met me. But the way that he was and is treated is very different depending on whether he is walking with his crutches or is occasionally using a wheelchair. If he is walking, people like to think that he has had a skiing accident or something quite cool but, when he is in his wheelchair, people talk down to him. His colleagues have completely forgotten that he has a PhD and have talked to him differently.
He had a stroke in 2020 and I was really worried about him going into hospital because I was not sure of the outcome. I had calls with doctors telling me about the impact of the stroke. The noble and learned Lord talks about doctors needing to know all the information. It was really clear in his patient notes that he had a spinal cord injury, but the doctors rang to tell me that both of his legs were really badly affected, and I was saying, “Well, that would be the spinal cord injury”. They then told me that his grip strength was really good. Well, 30 years of doing wheelchair racing and cycling and walking with crutches would make that happen; they had no idea what his grip strength was like before he had the stroke. So the information they were giving both of us was not very helpful at all.
All our experience of healthcare is very different. I had a doctor in a spinal unit ask me, “How did you catch spina bifida?” I laughed. I have been asked it several times. I think the first time was when I was in my early 20s, and I said I had caught it with a butterfly net—humour does not always go down very well, either in the Chamber or outside. I was really shocked that a doctor in a spinal unit was asking me how I caught a congenital disability. Because of my scoliosis, my internal organs are all in rather strange places in my body. Every time I go to the hospital for a kidney scan, I am asked, “Do you have one kidney?” I say, “I have two kidneys; look at the notes”. “Are you sure?” “Yes. I haven’t had an operation to remove one of my kidneys”. Every time you are measuring what you say because you do not want to offend doctors and you do not want to be rude or flippant. I sit there and say, “I have two kidneys. My right kidney is somewhere up under my arm”. “It can’t be there”. “Look at my notes”. Eventually, they find my kidney somewhere up underneath my right arm.
This is the frustration that disabled people feel. It is lovely to say that doctors will read all the notes and understand them, but actually something as basic as “I have two kidneys” is often misunderstood. So I challenge your Lordships’ Chamber. Have you ever pitied me? Do you think I am brave? Do you ever think, “Well, at least it’s not me?” Am I brave as a wheelchair user or brave because I was an athlete? How many people consider that, because of my impairment, I suffer? I apologise for sighing when the noble and learned Lord talked about the suffering of disabled people. My phone started pinging. I cannot read out any of the responses or the messages I have had on that, as all the language is unparliamentary. This is why disabled people are scared. The assumption is that we suffer. I do not suffer.
Disabled people are worried. That is why they are fighting this Bill. It is not kind, it is not sweet, it is not being understanding, it is not being compassionate. We are constantly having to try to fit into a version, an idea, of what non-disabled people think of us. If we dare challenge that, we have a chip on our shoulder, and we are one of those funny disabled people who just do not understand that we are meant to deal with people being kind to us. We have to deal with being patted on the head, literally and figuratively. It once happened to me in this building. It was a Peer who did it to me. I was with colleague who was a wheelchair user and we were chatting about a Bill that we were working on. The Peer came up to us and said, “Are you having a nice time?”—in that tone. We said, “Yes, actually, we’re debating the Bill that we’re working on at the moment”. The Peer ruffled my hair. This is patronising. This is ableist. It is not kind. How does the noble and learned Lord assume that people like me “suffer”? I am really squeamish about the word. So many people are frightened because of the assumptions that are constantly made. I want to take my challenge further. How do you see disabled people who might be on the streets? Are we deserving and undeserving disabled people? That happens between Paralympians and non-Paralympians.
My noble friend Lady Campbell of Surbiton talked about DNRs being put on healthy disabled people. By virtue of how people who speak remotely are able to contribute, my noble friend and the noble Lord, Lord Shinkwin, were not able to come back into the debate. My noble friend wanted to make it clear that she has to rely on doctors for everything in terms of her well-being. We put huge trust in those people. My noble friend has been in hospital many times, and it is important to listen to her experience of what it is like. I will keep raising this in terms of how I am able to contribute in debates. I can sit in one place—well, three places—in the Chamber. I cannot sit with my colleagues. Those speaking remotely cannot come back and ask questions. There was one time in the time that I have been here when five wheelchair users wanted to speak in a debate. We had to tag-team in and out of the Chamber. How many other noble colleagues have had to do that?
My noble friend Lady Campbell wanted to reiterate the unequal nature of the system. She also wanted to draw attention to a BMA survey looking at doctors and medical students who are disabled or have long-term health conditions. It was published on 3 December 2025. The author, Natasha Wilcock, is deaf. It raised the ableism that exists in that profession. The assumption is that the barriers are from patients, but actually there are deep-rooted issues in the experience of doctors who are disabled. A huge amount of prejudice comes from other doctors.
The noble Lord, Lord Shinkwin, again, was not able to come back in, but he wanted to raise a couple of points. He asked me to say that the noble and learned Lord did not answer any of his questions and that he would be happy if he could write to him.
If you treat your disabled colleagues with prejudice and contempt—sorry, I am again referring to the BMA survey—how do doctors treat disabled patients? The equity of treatment of staff and of patients is inextricably linked.