House of Lords
Arrangement of Business
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
My Lords, before we begin, I will make my usual brief remarks. First, I reiterate our thanks, on behalf of the whole House, to all staff across the House for supporting this Sitting. I cannot do justice to the thanks that the staff of the House deserve, not only for today but for all other days. In the past few days alone, we have seen the care, kindness and dedication of the staff looking after Members when they are taken ill. This has been another long week, and the Recess is upon us.
I will not repeat everything I have said before at length, but I should, as usual, remind noble Lords of some key points. I will adjourn proceedings today at around 3 pm. I hope we can conclude the group we are on when we finish, but, if necessary, I will adjourn the House during the middle of a group. The clerks will compile a list of all noble Lords in attendance at the beginning of the group, and noble Lords will be able to check at the Table to ensure that their names have been properly registered. Only those present at the start of the group can participate when the group resumes.
My noble and learned friend Lord Falconer of Thoroton has set a target for today’s Committee debate. As I have said before, I hope that, with discipline and the usual courtesies, we will progress towards it. There will be no lunch break, but catering facilities are open and the Long Room will stay open until the Committee rises. For general guidance on how noble Lords should conduct themselves, I highly recommend the Companion, particularly paragraph 4.29 on page 60 and paragraphs 8.81 and 8.82 on page 143.
Finally, as I did yesterday, I wish all noble Lords, staff of the House, and families and friends a well-deserved break over the Easter Recess. Either I or one of my colleagues will be back at 3 pm to adjourn the House, and then, with everyone rested, we will be back on Monday 13 April for the final day on Report of the English devolution Bill, with several Divisions expected. With that, we shall move on to the business.
Terminally Ill Adults (End of Life) Bill
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, the noble Baroness, Lady Campbell of Surbiton, will take part remotely. I remind the Committee that, unless they are leading a group, remote speakers speak first after the mover of the lead amendment in the group and may therefore speak to other amendments in the group ahead of Members who have tabled them.
Clause 5: Preliminary discussions with registered medical practitioners
Amendment 189
“(6) The Secretary of State must by regulations—(a) establish a register of registered medical professionals who are willing and able to conduct preliminary discussions under subsection (3);(b) make provision for the process by which this register is updated and publicly available.(7) A registered medical practitioner may only conduct the preliminary discussion under subsection (3) if they are entered in the register.(8) Registered medical professionals who are unwilling or unable to conduct preliminary discussion are not required to join the register under subsection (6).(9) A registered medical practitioner who is unwilling or unable to conduct the preliminary discussion mentioned under subsection (3) must refer the person to the register of medical professionals.”
Baroness Fraser of Craigmaddie (Con)
My Lords, this group of amendments seeks to establish an opt-in model for healthcare professionals, as explicitly requested by the various royal colleges, including the Royal College of General Practitioners, the Royal College of Psychiatrists, the Royal Pharmaceutical Society and the Royal College of Nursing. They seek to protect doctors and all other healthcare professionals, not just with a vague formal right to opt out but with a framework in which their rights are clear.
My Amendment 189—supported by the noble Lord, Lord Carlile, and the noble Baroness, Lady O’Loan, to whom I give many thanks—seeks to strengthen transparency in relation to medical practitioners involved in delivering an assisted dying service by setting up a publicly available register of medical professionals who are willing and able to conduct preliminary discussions. While its sponsors have confirmed that the Bill is based on an opt-in system, it is imperative that this opt-in is explicitly referred to in the Bill, to ensure that participation is a positive choice and to avoid it being presumed or open to pressure that all professionals would participate unless they opted out.
Clause 5(6) says that if a doctor is unable or unwilling to participate,
“they must ensure the person is directed to where they can obtain information and have the preliminary discussion”.
But where should that be? Would not a publicly available register be the perfect solution for the patient to seek out a medical professional on the register at their convenience?
The noble and learned Lord’s Amendments 422 and 423 leave it to the Secretary of State to make provisions through regulation at some later date. Amendment 669A covers only co-ordinating and independent doctors and adds an opt-in option only for providing or participating in training. This is not good enough. I am sure the noble and learned Lord will also refer to this matter in his reply to amendments on Clause 31, which I appreciate was expanded in the other place on Report. However, serious gaps remain. Schedule 3 may indeed provide for protection against detriment by incorporating existing employment rights, but this does not resolve the issue because it leaves individuals to resort to the tribunal system, a system that is already crowded and where the remedy is damages, not rehiring, thereby potentially forcing individuals to choose between their conscience and their career.
We know that not all medical practitioners will want to participate in assisted dying. Some 45% of doctors in the BMA’s 2020 study indicated they would not be willing to participate, with a further 19% undecided. It is my belief that a clear and public register of those professionals who wish to participate would enhance transparency and enable everyone to know where they stood. Amendment 189 would require the Secretary of State to set up such a register, ensure there is a process to keep it updated and make it publicly available. A medical practitioner could conduct preliminary discussions only if they were entered in the register.
Concerns have been expressed that assisted dying will for ever change the doctor-patient relationship. Vulnerable patients would not be able to trust that clinicians had their best interests at heart. Such concerns illustrate the importance of ascertaining whether assisted dying is to be considered a treatment, which Amendments 383 and 657, in the names of the noble Baronesses, Lady Cass and Lady Fox, respectively, explore. However, with Amendment 189, patients would know whether their GP was a willing participant, whether or not they wished to avail themselves of assisted dying and, presumably, they could choose or not choose to register with such a practice. Patients would also know if their consultant or other medical professional had opted in, thus providing a context for, say, discussions around future options. The amendment would also protect clinicians, who could point to the register if they wished to have nothing to do with assisted dying.
The BMA has advised that it is against the reintroduction of a requirement on doctors to refer patients, which would undo a change from “refer” to “direct” made in the other place, but I understand that not all royal colleges are at one on this point. I take the point that proposed subsection (9) in my amendment reads that a professional who is
“unwilling or unable to conduct the preliminary discussion … must refer the person to the register of medical professionals”,
and I know that the BMA attached a specific meaning to “refer”. As I am sure the Minister will tell me in her reply, my amendment has not had the advantage of technical support in its drafting. Frankly, if the BMA would prefer “direct”, I would be perfectly happy with that. But even if we removed subsection (9) in my amendment, the point remains, which is to set up a publicly available register for those who want to opt in. Such a register also has the advantage of being able to be tracked. We could review whether certain areas of the country were being better or worse served. We could monitor the practice of doctors on the register to track concerns of doctor shopping. We could analyse which professionals or specialisms are or are not participating in assisted dying. All this would assist with the regulation of assisted dying.
Baroness Campbell of Surbiton (CB) [V]
My Lords, I have added my name to my noble friend Lady Finlay’s Amendment 190, and support Amendments 268, 359, 383, 617 and 657 in this group. This basket of amendments, as the noble Baroness, Lady Fraser, has said, seeks to ensure that no doctor or associated healthcare professional is under any pressure to participate in the process of assisted dying unless actively opting in to the process.
Amendment 190 provides an important safeguard against pressure on doctors by making it clear that the obligation to refer a patient to relevant information and another doctor applies only when the patient has specifically requested a preliminary discussion on assisted dying. It also ensures that doctors who do not wish to be involved are not required to take part beyond that point.
Last summer, I spent six weeks in St Thomas’ critical care after an accident at sea in the Bay of Biscay. I came home broken, bruised and in terrible pain, but my salvation was the compassionate, dedicated team of health professionals whose combined efforts brought me back to life and back to this Chamber. This was what they were born to do. As ever, I took the opportunity to ask each person who came to my bedside what they thought of the Bill and whether they would participate in its application should it become law. Hand on heart, not one doctor, nurse or allied professional said yes. What they did say was, “It’s not what I trained for years to do. My job satisfaction is making patients as comfortable as possible and supporting life however long or short”. I must admit that it made me feel a great deal better, and, yes, safer, knowing they would go the extra mile to help me while in their care.
A number of the royal colleges have raised concerns about the pressures on healthcare professionals to clear hospital beds and meet treatment targets. This, in turn, may pressurise them to participate in the assisted dying process—a subtle yet deadly form of unconscious coercion, causing division within medical teams and undermining patient trust. This was clearly illustrated in the sobering BBC documentary “Better Off Dead?” last year.
Throughout our exchanges in this Committee, I have heard the term “treatment option” to describe assisted dying. It is not a treatment option. Assisted dying as a treatment does not accord with the fundamental principles of medical practice. Medical treatment is to alleviate symptoms and support life, however short, in the least distressing way possible. To do otherwise would fundamentally alter the nature of medical practice, shifting the focus from supporting life to suggesting its end, leaving patients feeling pressurised or fearful when seeking care.
Amendments 383 and 657 in this group address this issue. The evidence is clear that without these amendments, we are in danger of travelling the same road as the Canadian legislation, a law that began as tightly drafted legislation but soon gave way to systemic pressures on healthcare professionals, many of whom now see assisted dying as part of the end-of-life treatment. We must not allow the introduction of assisted dying to disrupt the fundamental principles of healthcare.
The opt-in system proposed by my noble friend Lady Finlay and others in this group is not about protecting the rights of healthcare professionals; it is about preserving the very essence of patient care. The amendments from the noble and learned Lord, Lord Falconer, fall short of addressing these concerns. By limiting the statutory opt-in solely to the bespoke training for co-ordinating doctors and independent doctors, he leaves significant gaps in protection for the wider medical workforce. They are seen as too narrow and procedural to meet the fundamental concerns raised by the Royal College of General Practitioners and the Royal College of Psychiatrists.
I urge your Lordships to support the amendments I refer to and to stand with the royal colleges in their call for a clear opt-in system that respects the rights and dignity of all healthcare professionals, providing them with a safe, ethical healthcare environment and protecting the integrity of their relationship with patients.
Baroness Finlay of Llandaff (CB)
My Lords, I have Amendments 190, 268, 359, 617 and 660 in this group. The crux of this group is that assisting suicide is not a medical treatment, and products to bring about the death are being used not as medications but in massive overdoses for their poisonous properties.
The Human Medicines Regulations 2012 define a medicinal product as
“any substance or combination of substances presented as having properties of preventing or treating disease in human beings; or … that may be used by or administered to human beings with a view to … restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action, or … making a medical diagnosis”.
After considering what is a medicine, let us consider treatment. My noble friend Lady Campbell described excellent care and complex care very well. The Health and Social Care Act 2012 states that the comprehensive health service is
“designed to secure improvement … in the physical and mental health of the people of England, and … in the prevention, diagnosis and treatment of physical and mental illness”.
This is then embodied for patients in the NHS constitution.
In debates to date, proponents have focused on assisted dying as an existential choice, not a treatment. Canada considers it a treatment, and the problems—as my noble friend Lady Campbell explained—have emerged over time. But in Switzerland and Germany, it is fundamentally not a healthcare matter. It is important to remember that outside life, there is no health.
What of the role of doctors? The main conscience clause, now Clause 31, was expanded on Report in the other place to include explicit carve-outs to protect any person from a
“duty to participate in the provision of assistance in accordance with this Act”.
But I ask the noble and learned Lord, Lord Falconer: how is this assistance defined, and what are its boundaries? Is it the assessment process for eligibility for lethal drugs, or is it only the provision of lethal drugs? Is it only actually helping the person to ingest the drugs or setting up a delivery device for the lethal substances? Those boundaries are really important.
Clause 5(6) originally required doctors unwilling to conduct the preliminary discussion to refer a patient to another doctor who could conduct the discussion. After objections from the medical organisations, this was changed to a duty to direct the person where they could find information, although the Royal College of Psychiatrists has said that this may fail to adequately respect conscience.
However, Clause 5 still does not meet the requirement of expert medical bodies that request an opt-in system. Amendment 268 states that the “coordinating doctor”, Amendment 359 states that the “independent doctor” and Amendment 617 states that a substitute doctor must all have explicitly opted in for these roles. Currently, freshly qualified medical graduates could act as co-ordinating doctors. Under my amendments, no one could be a co-ordinating doctor unless they had explicitly met training and competency requirements to be on a new, separate GMC register, eligibility for which would require specialist training, as has already been so well explained in the introduction of this group.
As has been said, the BMA and the Royal College of GPs both specifically requested an opt-in system. The BMA requires an opt-in model for doctors who positively opt in to provide assisted suicide to be able to choose which parts of the service they are willing to provide.
Yesterday I had confirmation from the Royal College of General Practitioners that it strongly supports my Amendments 268, 359 and 617. It said:
“The College believes that any assisted dying provision must be separately funded and delivered through a distinct pathway”,
and that the college
“would support explicit clarification on the face of the Bill to make clear that there is no expectation on any doctor (including GPs) to participate and it is only those who positively choose to do so (via an opt-in) who would have the training and participate”.
I note that the amendment in the name of the noble and learned Lord, Lord Falconer of Thoroton, would make training the opt-in, but it would not deal with institutional expectations. If you cannot be legally compelled to take the training, I am not certain how you could still be involved in the discussions or assessments. It is not clear that the amendment would mean that you should be on the specialist register, as explained.
The only way to protect clinicians from detriment is by opt-in. Evidence to the other place from Canada suggests that physicians find it very hard to opt out, despite a right to, describing how assisted dying
“has completely changed the practice of medicine in Canada … doctors are expected to facilitate access to death, if not willing to provide”
it
“themselves, even when a doctor knows reasonable options for care have not been provided”.
The physicians went on to voice their concerns. That is all in the written evidence. I have heard from Australian doctors who have been intimidated, even driven out of their job, for refusing involvement.
Pressure does not come only in the professions, though. A recent study of Dutch GPs reported that the majority of Dutch physicians feel pressured when dealing with a request for euthanasia or physician-assisted suicide—particularly emotional blackmail, control and direction by others, doubts about fulfilling the criteria, counterpressure by patients’ relatives, time pressure around referred patients and organisational pressures.
That creation of an expectation and culture of assisted death is why medical experts want a clear opt-in system. An opt-in would allow the NHS’s work to continue unhindered and ensure that patients seeking assisted suicide are seen by doctors who are fully trained in the process. The BMA survey already referred to revealed that 6% of members of the Association for Palliative Medicine would be prepared to administer lethal drugs, but without an opt-in there would be the risk of an organisational exodus of staff. Dr Sarah Cox of the Association for Palliative Medicine told the other place in oral evidence that 43% of palliative medicine professionals say that they would leave if assisted dying were made part of the organisation in which they work.
Lord Carlile of Berriew (CB)
My Lords, I speak as a signatory of Amendment 189 in the name of the noble Baroness, Lady Fraser. I am strongly in favour of it for reasons that I will explain briefly.
I am not a doctor, but I am a patient when I cannot avoid it. Let us take, for example, a situation that many of your Lordships either have faced or will face when their eyesight begins to deteriorate. You go to the optician, who says, “I’ve examined your eyes: you’ve got the beginnings of a cataract. You can choose between either continuing with your spectacles as they are now or having a cataract operation, which might even mean that you don’t have to wear spectacles ever again”. In order to decide which choice to make, you are sent to a specialist.
Since 1 January 1997, there has been a GMC specialist register, which covers all sorts of specialties, including some that do not have the high formality of gynaecology, obstetrics or orthopaedics. It works very well. It is publicly accessible. It is just the sort of register that the noble Baroness is referring to, although there would be a specific one for this.
When you face the choice of having fewer than six months to live or dying by assisted dying, and you want to make your decision, you want to go to someone who has exactly the same sort of disciplinary approach as that eye specialist who would be advising you on your incipient cataract. That is a specialism. I cannot understand why there should be any other approach to this than having a specialist register so that advice is given to you clearly by a specialist—not any old general practitioner, if I can be forgiven for using that phrase.
Lord Carlile of Berriew (CB)
I am the son of a general practitioner who, by the way, was not any old general practitioner. Even the noble Baroness, Lady Gerada, knows that the skills of general practitioners are not uniform and vary a good deal—as I say that I see that her surprise is falling, after what I said before. It is not the role of a general practitioner; it is the role of a specialist, and that specialist must be able to tell the patient their options for continuing with life: what palliative care is available and what caring systems, if they are unable to do certain things.
Lord Winston (Lab)
Is the noble Lord aware that virtually no specialism has 100% of those posts filled? In fact, in most cases in the UK, as can be checked using the recent figures from the Department of Health, many specialisms are down to about 30%, and many specialist areas in medicine are not covered by specialists at all.
Lord Carlile of Berriew (CB)
My answer to that is that they jolly well should be. I do not see at all that that is a point against the argument I am making. I would say exactly what I am saying in relation to any specialism. It is a very simple point: do I want someone knowledgeable to explain what palliative care is, or is not, available to me, or do I want it explained by a generalist, who may be extremely good, such as the noble Baroness, Lady Gerada, or rather less good? I used to be a lay member of the General Medical Council, and I have disciplined very large numbers of doctors as a result of that experience. Having this specialist care is an absolutely essential requirement of what we are discussing.
Baroness Gerada (CB)
My Lords, I thank the noble Lord for his “any old” comment; I am “any old” general practitioner. I will pick up a few issues. One is around the register being made publicly available. I absolutely would not want my name on a publicly available register as somebody providing the services of assisted dying—not because I would be ashamed but because of the hate mail that I would get and the distress that I would already have. That does not mean that I am against some form of register. Of course there can be a register, just as there is for doctors who do Section 12 approvals under the Mental Health Act, and for doctors who do all sorts of things, but to have a publicly available register goes one step too far.
The second issue is that we are—I am—already getting confused about the opt-in/opt-out; we saw that earlier. If this becomes law, all doctors must be trained in assisted dying, whatever that training involves; the royal colleges will determine that. Just as all doctors are trained in the termination of pregnancy, even though they may not deliver a termination of pregnancy—whether they opt out of delivering any services is up to them—all doctors must be competent in this area. I have been a GP for nearly 40 years and have worked with doctors who do not want to get engaged at all in the delivery or any aspect of the termination of pregnancy. Nevertheless, they are there to counsel their patients and direct them to a doctor who is available and willing.
Lord Harper (Con)
The noble Baroness said that she does not want a publicly available register. Does she think that the patients of a general practitioner have the right to know whether that general practitioner is willing to provide assisted suicide services?
Baroness Gerada (CB)
I have talked before about using the term “assisted suicide”. If this becomes available, it will be an unusual event: we are not talking about hundreds of patients wanting an assisted death. I suspect that, within each local area, a list will be available, held at the local health authority or wherever, of those doctors who are willing to participate. Noble Lords may have gone to the event at which the Australians said how it is done in their country: it is done by doctors of all professional groups. It is about the competence and capabilities, not the specialties, of those doctors who wish to pursue the training in order to become competent and capable of doing this. This is all feasible. We are not talking about me in my consulting room nipping off at lunchtime and administering assisted death. We are talking about a regulated system that will be properly managed with small numbers. I hope that is an answer.
My final point is about the use of drugs that are there to treat disease. I am sure that, with her expertise in palliative care, the noble Baroness, Lady Finlay, will know that, at the end of life we use drugs, sometimes at extraordinarily high doses, that we know will accelerate death.
Baroness Finlay of Llandaff (CB)
I intervene on the noble Baroness’s comment about training. Everybody is, indeed, trained in abortion, for example, as they go through medical school, but by the time you are practising clinically and you are on a specialist register, you are no longer keeping up to date with those skills at all, and your revalidation depends on your keeping up to date with those skills, which is the benefit of having a specialist register.
If I might comment on the noble Baroness’s opening remarks about being worried about receiving hate mail, perhaps she might have some sympathy for those of us in palliative medicine who have been receiving a great deal of hate mail because we are known to be specialists in palliative medicine and because we have been flagging up concerns over the Bill. As for the numbers—
Lord in Waiting/Government Whip (Lord Wilson of Sedgefield) (Lab)
I ask the noble Baroness, Lady Finlay, when she is intervening, to keep it short, and people cannot intervene on people who are intervening.
Baroness Finlay of Llandaff (CB)
Noble Lords are repeatedly intervening on the different points.
As for the numbers, the estimates, based on the evidence from other countries, suggest that the estimates in the impact assessment are very low, and that the demand for assisted suicide would be much higher, so it would come into the purview of a large number of clinicians; hence the need for specialisation.
Baroness Andrews (Lab)
My Lords, with some diffidence, I first put on the record that the Bill is abundantly clear that it is an opt-in system. Clause 31, “No obligation to provide assistance etc”, says:
“No person is under any duty to participate in the provision of assistance in accordance with this Act … No registered medical practitioner is under any duty to become … the coordinating doctor … or … the independent doctor”—
I will not read out the whole clause. I do not understand why it has been described by noble Lords in the way that the noble Baroness described, about not being able to opt out.
On the point of the register, we have heard over 13 days how important it is to listen to and consult medical practitioners at every stage of the Bill. The proposition in Amendment 189 is that the register should be put in the Bill. It is a privilege to listen to the expertise of our noble friend—as I call her—the noble Baroness, Lady Gerada, who has expressed some very profound and intimate reservations. But surely there will be provision in due course for the discussion of how to register people who are willing to opt in, and to do that with a full consultation of all the medical professions so that the concerns of the noble Lord, Lord Carlile, can be addressed. Surely, as with so much of the debate we are having, this is a matter of implementation. Let us get to the point where we can make a decision in principle, but let us make sure that in implementing it we have it right. That must be done, I think, with the full consultation of all the medical professionals.
Baroness Cass (CB)
My Lords, I will speak to my Amendment 383. I have so far limited my speeches on the Bill to a maximum of two to three minutes but on this one occasion I would like to take more time, because this may be the only opportunity I have to discuss how we can integrate some of the approaches that have been put forward; I refer to my noble friend Lady Hollins’s amendments on multiprofessional assessment up front and her Clause 5 stand part notice, and the amendments in the name of the noble Baroness, Lady Finlay, on parallel care between assisted dying and the continuing care process. I believe that what I have to say would vastly simplify things.
My amendment focuses on what professionals who are opted in to work in an assisted dying service would be expected to do, and how it differs from what is expected of those who are not opted in. Specifically, I will talk about two individuals with completely different roles: a professional who is part of the treating team and so is not opted in, and a professional who is opted in as part of the assisted dying service. I ask your Lordships just to suspend belief and bear with me while I explain.
I believe we are all agreed on a couple of points: first, that palliative care provision is inadequate; and, secondly, that services are often fragmented, with no one professional supporting someone at end of life and helping them access all the help that they need.
Let us walk through the patient journey, which I do not believe we have done in this House so far, and start with the person who has just been given—rightly or wrongly—a six-month prognosis. There are many things they may wish to discuss and seek help with: nursing care, access to financial support, pain management or just someone to explain again what the consultant said about their terminal illness. If they are lucky, they will have an excellent general practice team which can help with all these things. But, sadly, despite the wonderful primary care described by my noble friend Lady Gerada, many do not have such a practice. A friend’s husband died recently without being able to secure a single visit from anyone in his GP practice in the last nine months of his life.
Baroness Fox of Buckley (Non-Afl)
My Lords, I thank the noble Baroness, Lady Cass—that was totally compelling. We will all have to read it and reread it, but it gave us a real sense of what it would be like. Sometimes, we are talking in the abstract.
In a more concrete sense, I think of this group of amendments as the workers’ rights group. We must take seriously what is being asked of all the workers involved. If a Bill of this kind were to be passed, all sorts of workers associated with health and social care would be expected to deliver it. What happens if that goes against their conscience? This is why I have added my name to Amendments 268 and 617 in the name of the noble Baroness, Lady Finlay of Llandaff, which seek to make opt-in for doctors explicit in the Bill. It is important to extend any conscience protections to a wider range of workers who might not want to be involved in assisting in the death of others.
I wished to add my name, but there was not room for me, to Amendment 673 in the name of the noble Baroness, Lady Fraser of Craigmaddie. It is very important that all workers be free to refuse to participate without penalty. I have also tabled my own Amendment 657 and thank the noble Baronesses, Lady Smith of Newnham and Lady Eaton, for supporting it. It concerns proposing that the provision of assisting in someone’s death is not regarded as a medical treatment. We have heard excellent explanations of why, existentially, it should not be a medical treatment, and there are a range of ethical reasons for that. However, for the purposes of this group, the amendment is relevant because, if assisted dying is a medical treatment, this could put practical and regulatory pressure on doctors in particular in terms of their duties.
The aim of this group is quite straightforward, particularly in relation to opt-in: to ensure that no medical professional or related staff are forced to participate in assisted dying or undergo training in assisted dying against their will. I know that supporters of the Bill are keen fans of autonomy, so this group of amendments is indispensable. Let us make this an autonomous, positive choice for those workers who are happy to take part in the process. The noble Baroness, Lady Andrews, has reassured us that, under the Bill, there will be no pressure to participate. However, she will know that in many workplaces, unless opt-in is made explicit, workers’ rights are not always given full satisfaction.
However, as it happens, the noble and learned Lord, Lord Falconer, thinks that this opt-in should be in the Bill. He emailed us in January to tell us that, following extensive conversations with the BMA, “I believe that explicitly including the words ‘opt-in’ on the face of the Bill would provide greater reassurance to medical practitioners”. I agree. I was a bit disappointed that those amendments were not tabled more quickly, but they have now emerged. I am glad to see that there is an explicit opt-in provision, but it is too narrow and too exclusive, being confined to a co-ordinating doctor, an independent doctor and so on, as explained so well by the noble Baroness, Lady Finlay. This leaves out significant parts of the wider medical workforce. I am worried that GPs, nurses and other front-line staff could still be mandated to participate in either assistance or training regardless of their conscientious objection.
These concerns are not only about narrowly focusing on opting only for the co-ordinating or independent doctor. We must recognise the dangers of considering opt-in only in relation to medical professionals. Amendment 673, tabled by the noble Baroness, Lady Fraser, is a reminder not to leave out the plethora of staff who might well be asked to play a secondary role in assisted dying, such as those who work in care homes or prisons. What about the member of staff, perhaps a porter, who is asked to escort a patient to a room where an assisted death will take place?
Baroness Fox of Buckley (Non-Afl)
“For goodness’ sake”—well, a bit of empathy might be helpful.
Our main focus is understandably on doctors, even nurses, but we must be careful not to assume that those with medical degrees—the professionals—are entitled to a greater respect for their consciences than other relevant workers: like porters.
I have previously spoken about my qualms regarding the care sector being sidelined in discussions about the Bill. Care England has complained that it has been under-consulted, not least on “opt-out, opt-in”. This matters in terms of the unintended consequences of the Bill. In Care England’s survey of its members, 24% of providers said that staffing would be very difficult because of the likelihood of conscientious objection, speculating that if forced to comply, care staff will walk out. Imagine what a tragic unintended consequence that would be. Only 14% reported that staff would willingly participate in the procedure; 34% reported that their staff would not be willing to participate at all. On what constitutes participation, the Royal College of Nursing has reminded us in written evidence to the other place of the need to consider administrative work:
“protection should also extend to indirect involvement, such as administrative tasks or referrals, to ensure all”
professionals
“are supported in line with their personal and professional values”.
I now want to reflect briefly on the issue of training, which is so important in relation to these amendments. Practically everyone involved in providing medical or care services, particularly medical services, has to do mandatory training units. Obviously, they are studying at university, but there is, as we have heard, revalidation, CPD and so on. If a robust opt-in conscience clause does not cover all such training, might those who try to opt out get a career-limiting black mark against their name? Might those forced to do such training fail if they do not endorse assisted dying as a medical treatment of merit or receive professional sanctions if they give the wrong answers? I am looking for a guarantee from the noble and learned Lord that no workers will face legal or professional repercussions, including indirect penalties of discrimination, for declining to participate in either training or the procedure.
On my Amendment 657, despite the insistence when we discussed Wales last week that this is a change in criminal law, not a health Bill, the necessity to amend the constitution of the NHS and the huge changing expectation of medical ethics—
Lord Deben (Con)
Does the noble Baroness not find it peculiar that people who are very keen on employment rights in every other circumstance are not keen on employment rights in these circumstances and put their views on assisted suicide ahead of the right of very ordinary workers to say, “I don’t want to be part of it”?
Lord Pannick (CB)
The noble Baroness is making a point that contradicts the words of the Bill, as the noble Baroness, Lady Andrews, has explained. Clause 31(1) says in unambiguous terms:
“No person is under any duty to participate in the provision of assistance in accordance with this Act”.
We all agree with that. We all agree that employees, whatever their status, should be fully protected.
Baroness Fox of Buckley (Non-Afl)
Royal colleges and trade unions want better guarantees. When we discussed the Employment Rights Bill—
Lord Falconer of Thoroton (Lab)
I am not sure what further guarantees the noble Baroness and the noble Lord have in mind, because they will know from the Bill that Schedule 3 amends the Employment Rights Act 1996. It incorporates that anybody who is being prejudiced against because they will not participate in terminal illness matters is given every single right under the Employment Rights Act. First, the idea that they are not being given the same rights as everybody else is wrong and, secondly, I am not quite sure what point the noble Baroness is making when she says that there should be more rights.
Baroness Fox of Buckley (Non-Afl)
I sat for many hours through the debates on the Employment Rights Bill. When I said that there was a plethora of rights and that we were overdoing it, I was treated with some contempt.
I have to finish. The fear is that once assisted dying is normalised as a medical treatment, health professionals would be obliged to offer it as a medical treatment or, even worse, be under some obligation to explain this therapeutic option as part of their duty of care for eligible patients. They could be held negligent for not offering this treatment against their conscience. That would seem to be the implication of case law in the Montgomery ruling, which ruled that all reasonable therapeutic options needed to be presented to and discussed with patients. The worry here is that civil liability protections do not cover—
Lord Wilson of Sedgefield (Lab)
Can the noble Baroness bring her remarks to an end, as she is well over the 10 minutes?
Baroness Fox of Buckley (Non-Afl)
This is meant to be a debate. I have taken a lot of opposition points. Let me finish. The worry is that civil liability protections do not cover where a duty is owed to the patients. How can doctors who do not wish to offer or discuss assisted dying be sure that they do not face liability for failing to comply with their alleged duty to raise treatments?
When I have raised such concerns with supporters of the Bill, I have been reassured that now that we have passed the workers’ rights Bill—there are parts in this Bill, too—there will be lots of protections. They point out that, if there are any problems, staff can always use employment tribunals if they feel that they have been unfairly treated, although, as I say, trade unions are quite keen on an opt-in. But as those of us who sat through the hours and hours of deliberations on the Employment Rights Bill will know, employment tribunals have huge, years-long waiting lists. Also, such tribunals put the burden on the employee to demonstrate and prove detrimental treatment, which seems completely unfair.
It seems pertinent to note, as mentioned by the noble Baroness, Lady Fraser, that as the remedy in employment cases is damages not rehiring, this could lead to driving health and care workers out of the understaffed healthcare sector—not a good result. To finish, as the noble and learned Lord is a member of the party that rightly boasts of its commitment to workplace fairness and workers’ rights, I am simply hoping that he will be sympathetic to those amendments that put workers’ rights—guaranteed—centre stage in relation to assisted dying. It is not too much to ask.
The Lord Bishop of Southwark
My Lords, I am glad to follow the noble Baroness, Lady Fox of Buckley, because I added my signature to Amendment 673 in the name of the noble Baroness, Lady Fraser, as did the noble Lords, Lord Carlile and Lord Hunt of Kings Heath.
Allowing for some reticence on the necessity of this amendment, I just wish to make two points. First, the Bill allows an opt-out for registered medical practitioners: a health professional, a social care professional or a registered pharmacist. Administrative tasks are specifically not excluded. The Bill defines health professionals as medical practitioners, pharmacists and nurses, but it does not define care professionals. This is a lacuna, which will cause problems should this or any Bill on this basis pass your Lordships’ House.
Secondly, matters of acute conscience are not restricted to the immediate preparation of a lethal dosage or the medical oversight of the procedure. There will be, for reasons of practicality, not least of cost, pressure on all sorts of ancillary staff, as anyone in a health and care setting will attest. If they are co-opted, either directly or indirectly, into what becomes the final procedure, when the conscience of such an ancillary participant tells them that they should have nothing to do with such a procedure, is it right that they should face sanction or inhibition of their careers, or even dismissal? I suggest not and I hope that the House will support this amendment.
Baroness O'Loan (CB)
My Lords, I tabled Amendments 668 and 670 and put my name to eight other amendments. I am supportive of other amendments, which I will explain. We are talking about how to protect the conscientious objections of doctors and other healthcare practitioners, as well as others, through an opt-in system, which would allow doctors and others who are willing to engage in assisted suicide to register their position and thereby provide a framework by which their rights are clear and practitioners are not subject to organisational pressure to engage with elements of the process or indeed the whole process.
We need to remember that medical practitioners need certainty about their legal and ethical obligations, especially when they are in a situation in which they may find themselves dealing with matters of life and death. In addition to this, many of those who work in healthcare have religious beliefs, which would preclude their engagement in facilitating others to kill themselves. Catholics, some other Christians and Muslims would be precluded from participation, yet may be prejudiced in their employment opportunities and prospects by this inability to engage. It is important, therefore, that this factor is considered and any such consideration should surely lead inevitably to the acceptance that the only way this can actually work is for people to opt in rather than having to opt out.
To that end, I have tabled Amendment 668, which would provide for a comprehensive conscience protection, allowing any person, not just a registered medical practitioner, to opt out of any activity that may facilitate assisted suicide, including any ancillary functions. Amendment 670 seeks to define what might be said to comprise assistance under the Bill, referring to
“any aspect of assisted dying under or in connection with the provisions of this Act, including but not limited to … administrative or managerial tasks, such as the allocation of”
duties to carry out these tasks; supervision of those to whom tasks are allocated; and
“accompanying and monitoring of a patient as they receive or after they have received the approved substance”,
the lethal drug. I also put my name to Amendment 665, which states:
“No health or social care organisation, team or professional is required or expected to participate in any part of the process of a person’s request for an assisted death”.
I added my name to Amendment 660, which would provide that
“involvement in assistance is wider than only the direct administration of lethal drugs”.
This would clarify the nature of what can be considered “assistance” under the Act.
I added my name to Amendment 679, which is similar but more specific and states:
“No company, charity, or other organisation is under any duty to participate in, facilitate, or permit on its premises the provision of assistance in accordance with this Act … No company, charity, or other organisation shall be required, as a condition of receiving funding or any other benefit from any public body, to participate in, facilitate, or permit on its premises the provision of assistance in accordance with this Act”.
This is fundamentally important to ensure that hospices, care homes, nursing homes and other similar organisations do not have to engage at all with the process of assisted suicide. It would also, I think, include prisons.
I declare my interest as a trustee of a hospice. There is a considerable fear that not providing explicitly to protect hospices in this way could lead to all sorts of difficulties. There is currently an expectation that hospices will provide care and support of many kinds and that they will not be involved in assisting people to kill themselves. To provide otherwise would change the whole ethos and purpose of a hospice.
The amendment would ensure that no financial consequences could ensue from a hospice maintaining its traditional ethos and operations and not engaging with assisted suicide. Amendment 770 would not provide that additional protection. The importance of this cannot be overestimated. Failure to protect hospices in this way may very well lead to the closure of hospices at a time when there is a huge shortage of expert palliative care, as we have heard so often.
These amendments are all tabled to ensure absolute clarity for professionals and patients and to further define the nature of the protections that professionals will have under the law should they not wish to become involved with assisted suicide. Very significant deficiencies would be created. Many potential legal challenges could be avoided if there was absolute clarity about those professionals who wish to engage with assisted suicide and equal clarity that administrative and all other NHS staff cannot be required to engage with any aspect of assisted suicide.
As has been said, the Royal College of Nursing has stated that nursing staff should have to actively choose to be involved and that it is “absolutely clear” that nurses have the right to say:
“I want nothing to do with this”.
That is the language of the Royal College.
The solution lies in the establishment of publicly available registers of professionals who do wish to be involved. I support the establishment of an opt- in system and have therefore put my name to Amendment 189, which would require the Secretary of State to establish and provide for the updating of a public register of registered medical professionals, supported by the BMA and the Royal College of GPs, who are willing and able to “conduct a preliminary discussion” under Clause 5(3).
Amendment 268 would provide that only doctors who have specifically opted in can become co-ordinating doctors, and that
“only those who positively choose to do so”
would be able to
“have the training and participate”.
Amendment 359 refers to “the independent doctor” in Clause 8, who would also have had to “explicitly” opt in. Amendment 617 would amend Clause 26(2) to provide that, where a co-ordinating doctor authorises another doctor to carry out the duties and provide the lethal drugs to enable a person to end their own life, that doctor must have expressly opted in to do so.
I support Amendment 680, which would provide for a specialist register for clinical psychologists who want to participate, to be operated by the Health and Care Professions Council, and similarly Amendment 681A, which would require a specialist register for assisted dying for pharmacists to be kept by the General Pharmaceutical Council, providing for those who are not registered medical practitioners, et cetera.
On training, the noble and learned Lord, Lord Falconer, has limited the statutory opt-in language to the bespoke training for co-ordinating doctors and independent doctors. His amendments do not provide the system-wide opt-in protection that the royal colleges have requested. Consequently, doctors, GPs who do not wish to be co-ordinating doctors or independent doctors, nurses and other front-line staff may be required to participate in basic or tier 1 training and participate in peripheral aspects of the process.
It is important to say that it would not be cost effective to train every member of the National Health Service in the provision of assisted suicide if they are not going to engage with it. We always have to remember that training has to be repeated—I will not give way, the noble Baroness can come in later—and is not a one-off. There are huge costs and extractions of staff from the delivery of services when they have to do training.
Baroness Gerada (CB)
On a point of clarification, we have heard it said several times that the Royal College of GPs is in favour of a publicly available register. To the best of my knowledge, and having just checked, the Royal College of GPs is not in favour of a publicly available register. It is in favour of opt-in, but not of a publicly available register.
Baroness O'Loan (CB)
I said that there should be a publicly available register and that the Royal College of GPs is in favour of an opt-in.
Lord Mohammed of Tinsley (LD)
On a point of clarity, having sat and listened and wondered whether I should intervene, the noble Baroness mentioned a number of faiths and the fact that people from those faiths do not believe in assisted dying. But people from those faiths also do not believe in childbirth before marriage. Is there any evidence to suggest that people are opting out of midwifery because of that reason? Or is it just your opinion that people from those faiths may not want to take part? I am from one of those faiths and although, as noble Lords may have heard, assisted dying might not be for me, I am not here to stop others. I am sure that others in medical professions might also share that view.
Baroness O'Loan (CB)
I am not sure of the logic of what the noble Lord is saying. I apologise to the House; I am struggling slightly. We are talking about assisted dying here and nothing else. I am saying that there has to be a conscience clause: that people of faith—I do not know how many faiths are involved—must have the right not to go against their conscience. That is one of the human rights that we absolutely must have.
Baroness Watkins of Tavistock (CB)
My Lords, I am broadly supportive of tightening the issue of ensuring that people’s conscience and beliefs are recognised and I support people who are prepared to work with patients who are, I remind the House, terminally ill adults wanting an end-of-life story that is different from full, extensive palliative care. I am completely supportive, as is the Royal College of Nursing, of full palliative care being what the majority of people will choose. However, there is a small proportion of people who would choose the principles of the Bill because of the nature of their particular illness, or personal choice.
I have talked before about all healthcare professionals’ responsibility to try to talk with patients about the choices that are available to them. The thing that has upset me most this morning is thinking about patients whom I have worked with and done everything, together with the multidisciplinary team, to keep alive who have taken their own lives because of severe enduring mental illness. I wish that we could stop referring to this as an assisted suicide Bill. It is terribly hard on people who have relatives and friends who have died through their own hand, usually in great distress. The whole purpose of the Bill we are talking about today is to reduce stress and distress for the small proportion of people who want this as an option.
Baroness O’Loan (CB)
I assume that the noble Baroness is aware that one of the reasons why we need to be absolutely specific about what we are doing is that 42% of people think assisted dying is palliative care. We need to make clear what we are talking about.
Baroness Watkins of Tavistock (CB)
I accept that. There was a helpful article in one of the newspapers this week talking about using the term “assisted death” rather than “assisted suicide”. I am pleased that I have had the opportunity to say it in the Chamber.
Baroness Hollins (CB)
My Lords, I congratulate my noble friend Lady Cass on her excellent speech. I am going to speak to my Amendments 667A, 680, 681A and 848C which seek to ensure that any healthcare professional who wishes to participate in assisted dying under this Bill may do so only by formally and voluntarily choosing and training to work in this specialist area— in other words, by opting in—and being entered on a register for assisted dying held by their regulatory body.
I acknowledge that, under the Bill, no person is under any duty to participate. This is not enough. At the individual level, opting in requires an active and deliberate decision, whereas opting out relies on a preset default. The two are not ethically equivalent, despite appearing similar. An opt-out system assumes that participation is expected unless an individual takes active steps to refuse, which is bureaucratically burdensome. In the context of assisted dying, making participation the default risks signalling that it is an endorsed routine practice. Over time, this may shift social norms and create implicit pressure on those involved to participate. Because of time constraints, I am going to focus my remarks on Amendments 667A and 848C, which deal with doctors, but the principles apply to other healthcare professionals, including pharmacists and psychologists.
Some noble Lords have focused on the matter of conscience. This is important, but I suggest that it is not the only professional consideration here. If the Bill passes, assisting a person to end their life must not be regarded as part of every doctor’s ordinary professional role. The Royal College of General Practitioners has expressed concerns about the Bill as drafted and has emphasised that any assisted dying service should be separate from core general practice in both structure and resourcing. The college made clear that participation should be strictly opt-in, with no expectation placed on GPs or other healthcare professionals to take part. One reason for its position is to ensure that core general practice and palliative care are not deprioritised and that no additional demands are placed on already overstretched services.
My amendments seek to ensure that, if Parliament decides that doctors will be involved in implementing the Bill, doctors must choose to work in the service, just as they choose other areas of medicine in which they wish to practise. It follows that they must be adequately trained and registered to practise. Opt-out systems are often justified on the basis that they increase participation. They work by setting a default position where individuals are included unless they take active steps to withdraw. In practice, many people remain with that default. It reflects a well established behavioural tendency that people are more likely to stick with the pre-set option than to change it, even when there are alternatives. As a result, uptake increases not because everyone has actively chosen to participate but because fewer people opt out than would have opted in. Making participation the default may increase uptake because it is expected.
In centralised healthcare systems such as the NHS, declining participation may carry subtle penalties. I will illustrate this with the example of the Mental Health Act. In principle, a clinician may object to the compulsory detention or treatment of individuals who retain decision-making capacity about their care. However, in practice, such a position may carry consequences for training and career progression. The Mental Health Act in England and Wales sets out the legal framework for compulsory detention but does not impose a duty on individual doctors to participate. For detention and treatment, a medical recommendation is required from an approved doctor. The approval framework defines which doctors are eligible to give such recommendations but does not oblige them to do so. In strict legal terms, there is no statutory duty compelling any psychiatrist to work within the Mental Health Act framework. Instead, the Act requires that certain professionals are involved if detention occurs, but it does not compel any specific individual to act. Effectively, participation operates as an opt-in system, as psychiatrists must apply for and maintain approval status to undertake this work.
However, there is a clear distinction between legal obligation and professional and contractual expectations. Within the NHS, many consultant psychiatrist roles include Mental Health Act work in the job plan, and those taking up such posts are expected to hold relevant approval. If a psychiatrist accepts such a role, participation then becomes a contractual duty. Therefore, the system is not coercive in a legal sense, but it becomes structurally coercive in a professional sense. Without any statutory compulsion, the training pathway and the labour market strongly shape participation. This is within an opt-in system, and it raises the question of how much stronger these pressures may become under the opt-out model proposed in the Bill. I accept that it has potentially been slightly modified by the noble and learned Lord’s amendment, but I do not think it goes far enough.
My amendments in this group address the regulation of doctors who choose to participate. Just as every recognised medical specialty is regulated by the GMC, I believe assisted dying should be treated no differently. It is a completely new area of practice, requiring its own defined set of skills, competencies and training standards that fall outside the remit of any existing specialty. Accordingly, my amendments and the amendment tabled by the noble Baroness, Lady Fraser, propose the creation of a specialist register for assisted death, which would be publicly available as with other specialty registers. Participating doctors would be required to hold both their primary specialty registration and this additional registration.
Dual specialty registration is well established within NHS practice. It reflects a recognised training model in which clinicians develop advanced expertise across complementary domains to deliver specific and often more complex interventions. Dual accreditation is typically used where clinical practice spans more than one domain, as is the case with assisted dying, where unmet palliative care needs must be addressed before death is considered. Therefore, this approach is entirely consistent with existing professional standards, and no clinician should take part in any aspect of the assisted dying process unless they are appropriately registered and regulated. Requiring clinicians to specialise further reinforces that participation is genuinely opt-in. It would be difficult to argue that an individual was compelled to undertake specific training and accreditation. This would provide an additional safeguard that involvement reflects a clear and deliberate professional choice.
Any involvement should be strictly opt-in and sit outside routine professional responsibility. All those who chose to participate should be registered with their respective regulatory bodies as providers of assisted death. This supports a stand-alone, separately regulated system, with participation limited to those who have actively chosen to be involved, have received appropriate training and are properly regulated. Finally, personally, I hope that Parliament does not require doctors to participate in any way, and I support the amendments to that effect as well.
Baroness Blackstone (Lab)
My Lords, I ask the noble Baroness, Lady Hollins, why she has identified this small group of specialists, and only them. Does she accept that the causes of death are very wide, and that many different specialists may have been involved in the treatment of a patient who wishes to bring on their death as soon as possible because of their huge suffering? So why would we confine this form of treatment, or the provision of this option, for patients who are close to death to only the small groups she has identified here? Why would general practitioners, neurologists or gastroenterologists not be included?
Baroness Hollins (CB)
The noble Baroness may have misunderstood. I spoke about dual accreditation, which could apply to any doctor from any specialty who wished to obtain the necessary training and accreditation to be able to contribute on this issue.
Baroness Berridge (Con)
My Lords, I have added my name to Amendments 359, 660, 665 and 681, as I believe they would ensure the widest possible protection for those people who, due to issues of conscience, are not able to participate in assisted dying. I specifically use “not able”, which is a different concept from that of autonomy and choice that underlies the Bill. “Not able” in matters of conscience is something we have not really considered in our law for a long time, but, if one casts one’s mind to conscientious objection to being involved in war, it is an important part of people’s rights to be able to say, “I am not able to participate in that”. There was some comment about the role of the porter. Everyone has that right of conscience—not choice, but conscience. One only has to watch “24 Hours in A&E” to see that that brief encounter with the porter, as an example, is such an important part of healthcare. We need to remember that everyone has freedom of conscience, not choice.
Of course, if the Bill explicitly provided the opt-in system, as my noble friend Lady Fraser mentioned, then the protections in these amendments would not be needed. I am afraid that I address the noble and learned Lord again about pre-legislative scrutiny. I admire the confidence with which he assures us, Bill in hand, that this is all sorted out; but until I am satisfied that the royal colleges, representing the people who are going to deliver this, are satisfied that the Bill is that clear, I am afraid these amendments need to be considered.
There are other jurisdictions where there are tighter protections for practitioners. In Oregon, even, the medical practitioner does not have to participate, document requests or provide information, but the language in the Bill is just “unwilling or unable”, which is a wider definition.
The noble Baroness, Lady O’Loan, has mentioned the case from Scotland, where they considered the conscientious objection clause in the abortion Bill, which was found to apply only to direct participation, not to the ancillary services these various amendments are trying to secure for individuals and organisations. I anticipate that there will be GP surgeries that will opt out because patients will want to know that whoever they get at the surgery does not support this.
The amendments would cover the situations I have been concerned about: the Secretary of State, the commissioners of services for assisted dying—if this is going to be an NHS service—and civil servants. I would be grateful if the Minister could confirm to us, either today or on our final day of Committee as currently scheduled, that the civil servants in all government departments who have had to work on the Bill have not been pressurised or required to work on it. The Bill may not yet be law, but it is good employment practice not to put any pressure on staff—noble Lords have given other examples—to make sure that they participate.
On the point made by the noble Baroness, Lady Watkins, coroners still record verdicts of suicide. The Government still have a suicide prevention strategy. The Bill before us is amending the criminal law, called the Suicide Act 1961. I agree that we should act with compassion, but we have to be legally correct about what we are doing. There is potentially a wider issue there for the Government to take away if they want to change the name of legislation and the name of the strategy, but that is not for today.
Lord Harries of Pentregarth (CB)
My Lords, it has been a privilege to listen and learn and to try to clarify my mind regarding the various amendments. I wish that some of our critics in the press had been here this morning, because the amendments today go to the very heart of the Bill and we have had the opportunity of hearing from people on different sides of real expertise, including the noble Baronesses, Lady Gerada, Lady Hollins, Lady O’Loan and Lady Finlay. It has been a huge privilege for those of us who are not medical experts to be able to clarify our minds on this issue.
I hope the noble and learned Lord will be able to address the points made by the noble Baroness, Lady Cass. She made points I had not heard before, and I do not know whether he had. She claimed that the Bill as drafted is not actually workable, and I very much hope he will be able to address that point.
I shall say three things. First, the noble Baroness, Lady Andrews, suggested that the things we are talking about today should be left to the medical professions to regulate. However, what we have been debating today—whether we should have a public register or whether we should simply have an opt-out clause, which everyone agrees with, of course—is not just simply a detailed regulation, with due respect; it goes to the heart of the Bill and Parliament has to make its mind up about it.
Secondly, towards the end of her speech, the noble Baroness, Lady Gerada, who we listened to with great respect, mentioned the well-known fact that a number of doctors, when patients come to the end of their life, give very large doses of painkiller, which has the effect of shortening the patient’s life. From an ethical point of view, there is a fundamental difference, depending on whether one is a utilitarian or a consequentialist on the one hand, or whether one believes that certain things are fundamentally wrong. This has been mentioned two or three times in the debates over recent years. For the ethical tradition that is this country’s base, particularly for the medical profession, there is a fundamental difference between administering a poison to kill someone and administering a large dose of painkilling drugs that has the foreseen effect of also shortening their lives, which from a moral point of view is entirely legitimate.
Lastly, on the question of language—this has been mentioned before—I say to the noble Baroness, Lady Watkins, that many of us do not like to confuse what we are debating with assisted dying. However, we also respect what the noble Baroness says—that the language of suicide is unpleasant and really not appropriate. Personally, I like to use language that is as neutral as possible and talk about people taking their own life, which seems to me as neutral a language as we can get on this.
Baroness Lawlor (Con)
My Lords, I would like to introduce my Amendment 664. It is designed to ensure not only that no medical professional is obliged to participate in such training but that, in order to do so, the medical professional must give written consent. Professional training aims to show students not only how to apply their academic knowledge in practice but how to approach their role in their chosen profession. The second element has two levels. There is the day-to-day one, as summed up by the Cambridge clinical course under the labels “communication skills” and “patient management”: how, for instance, to deal with a patient who insists, contrary to the evidence, that they have cancer?
However, there is a second, higher level—an induction into the ethos of the profession. This level is of vital importance in training medical professionals, because they are dealing with human beings. Throughout this Committee, one of the most powerful messages has been that each individual is different and that one of the most precious skills of doctors, nurses and other medical professionals is to be sensitive to those differences when applying medical science in a particular case. There is no simple blueprint or checklist to guide them. Rather, they need to be guided by the ethos of the profession into which their training has induced them.
That is a strong reason why this amendment seeks to ensure that the training of health professionals related to assisted suicide needs explicit consent from participants. It implies that training for purposes of the Bill is treated as a separate activity within the course as a whole, requiring consent from the participants, and that there is neither compulsion nor pressure to participate. If assisting suicide or assisting death under this Bill is presented in training as just another element among others of what health professionals do, the ethos will be drastically changed. Instead of one based on supporting the ill, the frail and the elderly, of seeing in every life one worth living and improving health, a new ethos will grow. At first, it will be one of moral equivalence between encouragement and help to live and encouragement and help to die—one in which there is no ethical basis for the profession but everything depends on the apparent preferences of the patient. But soon, I fear, it will develop into something more sinister—an ethos in which medical professionals are servants of the state, deciding for the common good, as they believe, who is to live and who is to die.
A second reason for this amendment is the freedom of conscience of medical and other healthcare professionals.
Baroness Lawlor (Con)
I am just finishing. I will not take interventions.
A second reason for the amendment, which would require written opt-in for training for medical and other health and care professionals, is that to many—not just in this House but in society as a whole—assisting suicide is deeply immoral and it would be obnoxious to have to train in practising it.
Baroness Whitaker (Lab)
May I check that I have understood the noble Baroness correctly? When she said that the patient’s preference should not prevail if they wanted an assisted death but that the doctor should decide, does she mean that the doctor knows best? Is that what she meant?
Baroness Lawlor (Con)
I thank the noble Baroness for this. I am talking about medical professionals, and I am also talking about the moral equivalence. Can she remind me where I exactly said that?
Baroness Smith of Newnham (LD)
My Lords, I will very briefly speak to Amendment 657 in the name of the noble Baroness, Lady Fox, to which I have added my name, to support the amendments in the name of my noble friend Lady Finlay— Amendments 268, 359, 617—and the amendment in the name of the noble Baroness, Lady Cass. In particular, I think that the amendment from the noble Baroness, Lady Cass, in many ways picks up the issue highlighted in Amendment 657 —to make it explicit that an assisted death should not be seen as a form of treatment. I think that was implicit in what the noble and right reverend Lord, Lord Harries, said.
Lord Pannick (CB)
My Lords, I just want to respond to the noble Baroness, Lady Berridge, on the importance of conscientious objection. The strength of Clause 31 and Schedule 3 is that they are not confined to those who can show that they have a conscientious objection to assisted suicide. Any doctor or any other person who does not wish to assist has a legal right not to do so, for any reason—indeed, they do not have to give a reason. That is the broadest possible protection. Let us not forget that it is broader than the protection which Parliament included in the Abortion Act 1967. Under Section 4 of that Act, the doctor or other person who does not wish to participate must not only have a “conscientious objection”; they must be able to prove that they have a conscientious objection if there is any issue about it. The Bill from the noble and learned Lord, Lord Falconer, includes the broadest possible protection.
My reaction to many of these amendments is the reaction I have had over 13 days to the amendments to this Bill which we have debated. Whatever their intention—I make no allegations about intention—their effect will inevitably be, unnecessarily, to impede the ability of persons who are dying to receive the assistance that they so desperately want.
Baroness Berridge (Con)
My Lords, I am grateful for the clarity, but I draw attention to the fact that this is a position that could have been put, and still could be put, in a meeting with the various royal colleges to assure them that the Bill does what the noble and learned Lord and the noble Lord, Lord Pannick, say it does. We are faced with a situation where the practitioners are not satisfied and do not have the confidence that the noble Lord alludes to: that the Bill will give them the protection that they want.
Lord Pannick (CB)
Of course, some practitioners do not have confidence. We are not going to get to any conclusion on the Bill that will enable Parliament to implement the view of the vast majority of people in this country.
Lord Moore of Etchingham (Non-Afl)
My Lords, I accept the spirit of the noble and learned Baroness, Lady Butler-Sloss, so I shall be very brief. I support the noble Baroness, Lady Fraser of Craigmaddie, in her amendment on the register. I understand that one of the things that we are trying to do in this group is to protect professionals. Therefore, many of us will be very sympathetic to what the noble Baroness, Lady Gerada, said about receiving hate mail if there were a register. However, in modern times, I am afraid that everyone in a public position has to face the disagreeable fact of hate mail; it is a feature of social media. We therefore cannot close down the openness that we want to have on many aspects.
I am thinking about the benefit of this register to the patient. It is important for the medical profession as well, but it is very important for the patient for a wider reason. First, obviously you want to find someone who will assist you to take your own life, but also, as these debates so often show, there is unfortunately a big moral gulf between those who support and those who oppose the Bill. If you think of a patient, particularly an elderly patient with a serious illness who is therefore eligible under the Bill, it is important that they know the type of doctor they are dealing with in a wider field of care.
For example, suppose I had to find a doctor for my aged mother, who is absolutely determined to live to be 100, and is, in fact, the only woman I know who lies upwards about her age. I know that she would not want to go to a doctor who provided assisted dying, which is understandable. Behind all this is a very different view about life and death and what they are, and a patient would therefore need to know. That is a very good reason for supporting the noble Baroness’s amendment.
Lord Stevens of Birmingham (CB)
I will be equivalently concise. It is important to connect Amendment 657, which specifies that assisted dying
“is not to be regarded as medical treatment”,
with our debate on the broader conscience protections that the Bill needs to include. The reason is not just that regarding assisted dying as a treatment is a conceptual error. As Wittgenstein pointed out:
“Death is not an event in life”.
We are talking about a personal existential choice. It is in no sense a treatment, but the Bill is silent on that question. As the noble Baroness, Lady Fox, and others have pointed out, that matters in the real world because, notwithstanding the employment protections included in the Bill, the professional duties on a doctor are potentially in play if assisted dying is determined to be a treatment. That will give rise to questions on the obligations of a doctor to raise assisted dying as a possibility, even if that doctor’s conscience is against participating. It will give rise to consent questions—we talked previously about the McCulloch test—and negligence questions from surviving members of the family. It is therefore important that we put this beyond doubt.
Given the understandable desire of the House to move on to the next group, I will just commend to fellow noble Lords an article in the BMJ from 9 June last year, written by Professors Gareth Owen, Alex Ruck Keene and Katherine Sleeman, which sets this all out beautifully. Their conclusion was:
“Statutory ambiguity serves neither professionals providing assisted dying, nor patients requesting it. Parliamentarians must consider this question”.
That is what we are doing. Amendment 657 would put it beyond doubt, and I hope that the noble and learned Lord the sponsor will accept it.
Baroness Grey-Thompson (CB)
My Lords, I have Amendments 673A and 679 in this group. Amendment 673A would provide that a medical practitioner who had opted into the process could choose to opt out at any time, and Amendment 679 would insert a new clause.
I will start with a number of questions for the noble and learned Lord. In a letter to Peers on 28 January, the noble and learned Lord said that he had had very productive discussions with Hospice UK on institutional protections, and that he would table amendments as soon as possible. I think that three amendments have been tabled, but I am not sure that they solve the problem that we are trying to solve. There is nothing in those amendments that requires any training to be kept up to date, there nothing about revalidation, and there is no requirement to be trained and up to date to enter the assisted suicide process.
Can the noble and learned Lord provide an update on his statement that he is working with officials to address Hospice UK’s concerns? Does he accept that the red line for many care homes is that they are not willing to tolerate this process on their premises? In the other place, the honourable Member for Spen Valley resisted a blanket institutional opt-out, arguing that it could lead to “stress and distress” for terminally ill patients if they are forced to move out of their “so-called home” on their final day. But what about the stress and distress of those who share that home, should the process take place on the premises?
Does the noble and learned Lord accept that it will be very difficult to extricate care home staff from involvement—such as organising appointments connected to the provision of assisted dying, assisting in the organisation and sending of documentation connected to its provision, or accommodating the doctor who must remain with, although not necessarily in the same room as, the resident until they die—were assisted suicide to take place on the premises? Do the noble and learned Lord and the Minister recognise the seriousness of a situation where hospices feel forced to close, which could cost around £8.4 billion a year to the public purse?
It has been very interesting to talk about the number of people who may be trained. However, if the equality impact assessment is anywhere near correct, the estimated number of patients in year 1 will be somewhere between “273 and 1,078”, and in year 10 it could be between “1,737 and 7,598”. This does not sit alongside the 310,000 people who accessed hospice care last year. Therefore, if there is no expectation of overwhelming demand from people wishing to end their life, why is there need for mass enrolment?
There might be a number of different reasons why organisations with principled opposition might want to be exempted: freedom of association in law for charities, legal rights guaranteeing patients a choice of their place of care, the cost to the public purse, freedom of religion and belief in law, and the public benefit of faith-based charities.
We currently have a fragile workforce. In 2024, the Royal College of General Practitioners surveyed GPs, 42% of whom said that they were unlikely to be working as a GP in the next five years. This brings us back to the number of people who we may need to have trained. Whatever we think the Bill says, I am concerned that it is not clear enough. We also cannot underestimate the pressure on doctors and medical practitioners who may choose to opt out. If they work in an organisation that feels very strongly that this process should take place on its premises, someone’s career might be in jeopardy if they are not willing to sign up to it.
The noble Baroness, Lady Fox, raised issues around porters. Although we have discussed prisoners in previous groups, we have not discussed prison officers in this group. There is another group of individuals—not just doctors—who might want to exercise a conscience clause. It might include administrators as much as anybody else who works in the system.
My noble friend Lady Watkins of Tavistock rightly said that many people would choose to have excellent palliative care. The reality, as we have discussed, is that it is a postcode lottery. It is a great shame that as part of this Bill we were not able to discuss the provision of palliative care—it was ruled out of scope—because I think it would have given many of us a level of reassurance if we could have debated that at the same time.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I will speak to the main theme of this group, but particularly to Amendment 679 in the name of the noble Baroness, Lady Grey-Thompson, which I believe is essential if we are to safeguard the valuable work of faith-based hospices and care homes, along with other institutions, that have a conscientious objection to assisted suicide. I speak as a member of a family in which loved ones—more than one—have committed suicide, and I know the pain of what that word entails and means.
I note this particular part of Amendment 679:
“No company, charity, or other organisation shall be required, as a condition of receiving funding or any other benefit from any public body, to participate in, facilitate, or permit on its premises the provision of assistance in accordance with this Act”.
I am seriously concerned that, even after 13 days of consideration in this place, we have still not truly appreciated the scale of the crisis facing the care sector should this Bill fail to provide sufficient protection for conscientious objection. The noble and learned Lord indicated in January that he had discussions with Hospice UK on this matter, but this only scratches the surface of the consultation that ought to take place. A Care England survey in autumn last year found that 84% of care providers have not been consulted on the Bill or its implications. This has caused particular concern within the care sector.
Returning to my point, in lieu of clear protections it is clear that the sector stands on the brink. We cannot ignore the fact that, for many hospices and care homes, provision of assisted suicide on their premises is a red line that they will not cross. Mission Care is a Christian charity providing nursing and residential care in five homes across London and south-east England. Aidan O’Neill KC recently warned on its behalf that should such charities be
“required as a matter of law to allow for the provision of euthanasia or assisted suicide for residents”
within their care, they would
“no longer be able to operate in this sector”.
Mr O’Neill warns that this could
“precipitate a crisis in terms of local authority provision for care homes”.
A report from the Commons Public Accounts Committee just a couple of weeks ago found:
“The NHS is at risk of losing the huge value it gains from independent hospices beyond the provision of statutory palliative and end-of-life care”.
Given that, it is quite shocking that we are risking active withdrawal from the sector. On adult social care services, it has been estimated that faith-based organisations account for 10% to 15% of provision in the United Kingdom. This accounts for around 192,000 people. Should such organisations feel the need to withdraw, it has been estimated that it could cost £8.4 billion annually for the state to fully absorb that cost.
But it is not simply the money; it is also the special approach to care that will be lost. I will focus on Christian care homes, not because I believe they are the only group that recognises the inherent dignity of human life and they are at risk under the Bill— I believe that, deep down, we all in our conscience recognise that being is more important than having—but because, as a Christian minister for over 50 years, I have seen at first hand the distinctive benefits of what these Christian care homes can offer, and what I therefore believe is under threat from the Bill.
To take just one example of a special approach, in addition to the skills of medics and nurses, Christian care homes and hospices often provide the support of on-site chaplains and carers to treat the whole person in response to the total pain of dying. They can also offer a community that, contrary to our modern tendency to pretend that death does not exist, recognises that it does, as a part of the human condition—for we all must needs die, and it is appointed unto men once to die. Of course, that verse continues: “after this the judgment”.
In my time as a minister, it has struck me in visiting such care homes that, for many, they are much more than just the person’s own home. It is not simply a room within a facility; it is a family in which, in embracing the ethos set by the home, people can support one another in prayer, worship and investing in one another’s lives. Openness in conversation about death can be just one part of that, meaning that it is not an issue left exclusively to the person’s individual room.
That is why I struggle with the Government’s argument against care home opt-outs. The argument runs that institutional opt-outs can infringe Article 8 rights of the individual to choose to die in their home. It has been said that it would lead to stress and distress for terminally ill patients if they were forced to move. But this fundamentally fails to recognise the community aspect of life within many care homes, which is predicated on the protection of the ethos. In other words, we also must ask about the stress and distress that could be caused to other residents within the care home should things happen that fail to align with the values they have signed up for. After all, in a way it is their home too. To put it bluntly, many residents would feel a violation of the place they have chosen to be in if an assisted suicide were to take place. Many may have exercised their right under the Health and Social Care Act 2012 and the NHS constitution to actively choose a faith-based place of care because it aligns with their values, and they may not wish to be in an environment where assisted suicide is practised.
What about the impact on care staff? It is vital that we appreciate that for many of the staff working in the care sector, it is not just a job—it is a vocation. It is their life’s calling. Many offer their services free of charge. We should not just suppose that it is as simple as walking away and getting another job. I speak from the perspective of many Christian carers, not because the same depth of feeling is not true of others but because, as my community is a Christian community, I can relate to the depths of feeling. For many Christian carers, this is not a peripheral issue to their faith. Their desire to care and bestow dignity through understanding, support and relationship is driven by their belief that God is inviting man into a special relationship with Him through the giving of His Son, and has bestowed the ultimate meaning and dignity on life, which they must model in their respect, care and giving of themselves for others. In other words, it is rooted in the very heart of the Christian faith. I labour this point—recognising that this is not a perspective that many noble Lords may share—because it is vital that, in discussing conscience protection, we realise just how closely this issue draws to many people’s central identity and their expression of it.
In closing, I appreciate that the noble and learned Lord, Lord Falconer, who is responsible for this Bill, may say that he very much respects those convictions and that that is precisely why he has put protections in the Bill—so they can opt out of the most direct aspects of it. However, I question whether the current provisions are anywhere near sufficient. I do not believe that they are. Does the noble and learned Lord accept that it will be very difficult to extricate care home staff from involvement in assisted suicide were it to take place on their premises? For example, there will be organising appointments connected to the provision of assisted dying, assisting in the organisation and sending documentation connected with the provision of assisted dying, or accommodating the doctor who must remain with, although not necessarily in the same room as, the resident until they die. For many, given the centrality of this issue to their identity, these too are tasks that they may feel unable to perform. Without an explicit provision giving care homes, especially Christian or faith care homes, the option to not allow assisted suicide on their premises, I fear that we will see an exodus from that sector.
Baroness Royall of Blaisdon (Lab)
If my noble and learned friend were to introduce into the Bill the provisions that the noble Lord wishes, would he then be in favour of such a Bill?
Lord McCrea of Magherafelt and Cookstown (DUP)
I think that the noble Baroness will be under no illusion: I am personally against the Bill, because I do not believe in it. But if there is a Bill, we have to have any protection in it—that is completely different. Therefore, in the context of the suggestion that, because I am personally opposed to it, there should be no protections, I believe that, if the Bill were to pass, we should have the proper protections for people who have faith.
Baroness Scotland of Asthal (Lab)
My Lords, I rise not least because it is very important for us to take a moment to understand the importance of this debate—in particular, to address the matters raised by the noble Lord, Lord Pannick. I too have sat through all the days in Committee, and noble Lords will know that I have spoken rarely, but my conclusion is different from that of the noble Lord, because there is a huge benefit in listening to all sides of this debate. I have been moved by the speeches of my noble friends who have supported the Bill and by the speeches of those who have not.
The essence of this issue, in relation to opting in, is very important. I want to agree with what the noble and right reverend Lord, Lord Harries, said, in relation to the extraordinary contribution made by those who are specialists in this area, not least the noble Baroness, Lady Cass. What this House has been marvellous about is finding agreement. We are all agreed, it seems to me—including my noble and learned friend Lord Falconer of Thoroton—that this has to be an opt-in and not an opt-out. What we are debating is how we make sure that that to which we all aspire is actually delivered in the Bill.
Baroness Coffey (Con)
My Lords, I strongly support Amendments 169, 268 and 657. In my discussions with a variety of doctors’ representatives, two issues clearly came out straightaway. They volunteered them— I did not ask for them—and they were about how this must shift to being an opt-in process. As it stands, it still definitely feels like an opt-out process in this legislation. The other thing that they were absolutely clear about was that this should not in any way be considered a treatment, because it is not. I do not need to repeat some of the arguments that have already been well articulated by the noble Lord, Lord Stevens of Birmingham, and others.
On Amendment 169, it is sensible to have a register. The noble Lord, Lord Moore of Etchingham, explained one of the reasons why, but I think that it is just for straightforwardness, so that people who are considering this potential approach can do it. Although I disagree with the BMA, and we are not discussing the clauses today about whether things can be raised by judgment, it would be helpful to give confidence in this process.
The questions that I have are principally for the sponsor and the Minister. The noble Baroness, Lady Blake, knows that I value her very much, but I appreciate that she is not the policy Minister, so if she does not have the answers today I would be more than happy to receive a letter in this regard from the relevant Minister. I want to talk through some of the amendments that the noble and learned Lord, Lord Falconer, has tabled. On Amendments 422 and 423, there are other groups later when I think we will discuss replacement of doctors—it does not matter whether that is in this group or not. I would like to get a sense of why he feels the need to do that.
One of my broader concerns, more generally, about Amendment 669A is that, while I appreciate that the noble and learned Lord is trying to address a challenge that has been laid, it still feels as though it has either not gone far enough or is almost tipping it the other way. If we consider the impact assessment, the Government suggest that even by year 10, fewer than 8,000 people may have taken advantage of the Bill. That contrasts significantly with Marie Curie’s figures that over 300,000 people engage with hospice care and palliative care every year. It does feel, and part of the debate we had earlier almost suggested it, that doctors should do it unless they choose not to, and I strongly believe we should do it the other way. Some of the amendments to the Bill lend themselves to that opt-in register, in effect, and then providing the necessary training to support this approach. I think it is fair to say that Schedule 3 is comprehensive, but again, sometimes when you are relying on aspects, you end up becoming a minority, and that in itself can bring coercion to perhaps go against your own personal views.
A few weeks ago, we got into the whole issue of providing treatments and the legal ruling that led to the GMC changing its guidance, which was deemed enough. Actually, the GMC has just published new draft guidance tackling issues to do with personal beliefs and the like. In particular, I am concerned that, unless the Bill is explicit that this is not a treatment, with all the forward implications of the fact that it is not there, we may end up with a lot of case law, or a lot of rulings. Also, point 23, I think, of the draft guidance that the GMC has put forward suggests, basically, “If there’s no alternative, you’re going to have to do this. You’re going to have to offer it, whether you like it or not”. That is more or less what it says, so it would be useful to hear from the Minister what discussions have been had with the GMC in considering that approach in the guidance, because it is relevant to our consideration of the Bill.
Amendment 888, tabled by the noble and learned Lord, extends Clause 31 to everybody in Scotland. I have an amendment, which I did not talk to because Amendment 888 was in this group, which is just trying to understand whether it was the Government or the sponsors who had already started to expand a series of primary legislation issues, I guess, to practitioners in other countries where the Bill does not generally apply. We had a debate a while ago about Section 30 orders, which is now somewhat redundant given the decision by the Scottish Parliament not to proceed with the Bill that it was considering, but I want to get a sense from the Government of where they are on this. I thought that the issues proposed in Amendment 888 would have been covered by a Section 104 order if the Scottish Parliament had gone ahead, so I want to get an understanding of the reasons for tabling this. If the Bill is going further and trying to bring the Scottish medical profession into potentially providing services in this country, that opens up a whole new chapter of consideration. In asking these questions, I am just trying to deepen my understanding and get clarification, both from the sponsor and from the Minister.
Lord Harper (Con)
My Lords, I want to cover a couple of points and reflect on what the noble and learned Baroness, Lady Scotland, said, which was that, despite the debate, there is a sense that people are agreed that this should be an opt-in rather than an opt-out process. The problem is that the way the Bill is drafted does not make that clear, and that is not just my view but the view, as we have heard, of many of those who are going to be involved in delivering this service. I will not go into that in great detail because many people have done so, but the Royal College of General Practitioners thinks that there should be a register and a more explicit opt-in system. Some of the other royal colleges do too and, as I think somebody else said, the Royal College of Nursing thinks it should be very clear that no one should be forced to participate. Of course, I give way to the noble and learned Lord.
Lord Falconer of Thoroton (Lab)
The noble Baroness, Lady Gerada, made it clear that the Royal College of General Practitioners was not in favour of a register. It may well be in favour of an opt-in process, but not a register.
Lord Harper (Con)
The noble Baroness said that it was not in favour of a public register, and I did not say that it was, but that is a helpful clarification that the Committee has now been able to hear.
The problem, though, as I said, is with how the Bill is drafted. There are a couple of points. First, I strongly support Amendment 657, which says that assisted dying is not to be regarded as a medical treatment. As I said, I do not need to set out the details—the noble Lord, Lord Stevens, did that admirably. What I would ask the sponsor of the Bill, the noble and learned Lord, Lord Falconer, is whether he regards the provision of assisted suicide as a medical treatment or not—forgive me if he has said this on a previous occasion, but I do not think he has. If he does regard it as a medical treatment, that would be clear. I would not agree with that, but it would make it more important that we change the Bill to make it clear that it is not. If he does not think it is a medical treatment, I cannot see any objection to accepting this amendment and making that clear.
This is not dancing on the head of a pin; it is really important, because for this to be opt-in, not opt-out, everyone involved has to be clear about their responsibilities. The noble Baroness, Lady Andrews, read out Clause 31(1), which states:
“No person is under any duty to participate in the provision of assistance in accordance with this Act”.
There are two problems with that. First, they may not be under a duty according to the Bill, but the problem is, as the noble Lord, Lord Stevens, said, that if the provision of assisted suicide is regarded as medical treatment, medical professionals, in particular, have a whole range of other professional and legal duties that they have to undertake. They may not be compelled by the Bill to participate in providing assisted suicide, but some of their other legal duties may force them to do so if it is regarded as a medical treatment. It would be helpful to clear that up.
Lord Falconer of Thoroton (Lab)
I am absolutely amazed to hear that. Clause 5(1) says:
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.
That would mean, as a matter of law, that there is never a duty to raise it. Clause 31 says:
“No registered medical practitioner is under any duty to become … the coordinating doctor … or … the independent doctor”.
There could not be—take it from me—greater legal clarity that there is no legal obligation either to raise it or to participate in it. Whether it is a treatment or not, which is a most interesting philosophical question and I am not underplaying that issue, the reason that the terms of the Bill are so absolutely clear is so that no doctor could be in any doubt whatever that they are under no legal duty.
Lord Harper (Con)
The problem is that I do not think it is that clear, and it is not just me. If it were that clear, then the royal colleges that think that it should be made clearer would not think that. The problem is—
Lord Harper (Con)
Hang on, let me just finish the point. With respect, people on my side of the debate keep being told off for speaking at length. There is a choice here. I want to try to make my remarks brief, but if I am going to take lengthy interventions from the noble and learned Lord, which I am quite happy to do, then I do not expect to be shouted at if I end up going over the time limit. People cannot have it both ways, but I am delighted to take his intervention.
Lord Falconer of Thoroton (Lab)
I never make long interventions. The complaint of the doctors is that they want an opt-in and not an opt-out. Their complaint is not that it is not clear enough that they are under no duty to give advice and no duty to be a doctor under the Act.
Lord Harper (Con)
The noble and learned Baroness, Lady Scotland, said that there was a great agreement in the House that there should be an opt-in system, and the noble and learned Lord is nodding his assent to that. If the Bill delivered that, the royal colleges that say they want an opt-in system would presumably be content with it. They are not; they want it to be changed to deliver that opt-in system.
Lord Falconer of Thoroton (Lab)
I completely accept the point about opt-in. I am pressing the noble Lord on his question as to whether there could be a doubt that a doctor is under a duty to raise it, and I am saying that there is absolutely no doubt in the Bill that no doctor is under a duty to be the doctor under the Bill or to raise it under the Bill. On the question of opt-in, everybody accepts that there should be opt-in, and I have put a provision in my amendments to that effect.
Lord Harper (Con)
I am very clear that the Bill does not create a duty for people to participate. The problem is that, if there are other statutes and responsibilities for medical professionals, there is then a lack of clarity. It does not matter whether the noble and learned Lord thinks so; if the medical professionals who have to make judgments think it is not clear, that is a problem and it should be put beyond doubt. That is the only point I am making.
The second point comes down to the register. The noble Baroness, Lady Gerada, did not answer the question I put to her. She gave a long answer, but it was an answer not to my question but to a different one that I had not asked. I am grateful that she has just come back into the Chamber.
Baroness Gerada (CB)
Can I give a clarification? I have just been in contact with most of the senior officers at the Royal College of General Practitioners. To put it on the record, to the best of my and their knowledge, the RCGP has not called for a register, a public one or otherwise.
Lord Harper (Con)
I am grateful to the noble Baroness. I said they were in favour of an opt-in system; I did not say they had called for a register. I want a register and I support the amendments that say we should have one. As the noble Lord, Lord Moore, said, it should be a public register. In essence, if you did not have a public register, as soon as people asked their GPs and other medical professionals for their view, in the modern world that information would become public. It would be much better to have a proper, well-managed system that was published, and then everyone would be clear about where people were on this and could access the relevant medical professionals if they wished to use them.
Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)
Apologies, I was taken by surprise by the lack of an Opposition Front Bench. I thank noble Lords for another important debate on opting into and out of providing assistance and various functions under the Bill. As I have already made clear, I will keep my comments limited to amendments on which the Government have major legal, technical or operational workability concerns.
I first turn to Amendment 189, tabled by the noble Baroness, Lady Fraser. This amendment may give rise to Article 8 ECHR issues, as publishing a register of professionals willing to participate in voluntary assisted dying could expose those individuals to intrusion or a risk to personal safety.
Amendment 657, tabled by the noble Baroness, Lady Fox, seeks to specify:
“The provision of assistance under this Act is not to be regarded as a medical treatment”.
The Government have made no decisions on what a service delivery model would look like. The Committee may wish to note that this amendment may impact the possible service models for voluntary assisted dying by limiting what the Government can achieve through Clause 41 regulations. Clause 41 currently enables the Government to make amendments to legislation, including the NHS Act 2006, to ensure that assisted dying could be delivered as part of the health service, which may require amending or modifying definitions of “treatment” to include assisted dying.
Amendment 664, tabled by the noble Baroness, Lady Lawlor, would allow health and social care professionals to opt out of all training in relation to the Bill.
Lord Harper (Con)
I am sorry to interrupt the Minister, but I am grateful that she has allowed me to do so. I want to make sure that I understand correctly what she has just said. I think she just said that, at the moment, the NHS would not be able to deliver this service unless there were some amendments made to make it clear that this was indeed a medical treatment, and it would therefore be necessary to make those amendments to explicitly define it as a medical treatment. I wanted to check I have understood her because, if that is what she is saying, it then opens up the very complex and difficult issues that the noble Lord, Lord Stevens, so ably set out a short while ago.
Baroness Blake of Leeds (Lab)
I confirm that it is “may require”: that is the response I wish to give him on that. Again, it is pushing the limits of what I am able to say at this point, in terms of future policy.
Lord Harper (Con)
I absolutely accept, as my noble friend Lady Coffey said, that the Minister does not have the policy responsibility, so I am absolutely not going to press her for an answer now. However, it would be helpful if we were to get a written response from the policy Minister that clarifies this point about whether it would be necessary to amend the law so that it was explicitly a medical treatment for the NHS to be able to provide this service. That would be helpful, but I am not going to press her on this. That would be most unfair.
Baroness Blake of Leeds (Lab)
I am certainly happy to take the noble Lord’s comments to my noble friend Lady Merron and see whether it is appropriate for her to respond in the way that the noble Lord suggests.
Perhaps I could start again on my response to the noble Baroness, Lady Lawlor. Her amendment would allow health and social care professionals to opt out of all training in relation to the Bill. It would require that, where a health and social care professional agrees to training, written consent must be given. The amendment also creates an obligation to provide official guidance on training in relation to the Bill on the day it receives Royal Assent. The requirement to publish official guidance on the day of Royal Assent may be unachievable, given the work on implementation that must be undertaken before such guidance can be published. It is also unclear how this interacts with other requirements in the Bill, such as the duty to consult various persons before any guidance is issued.
I turn to Amendments 667A and 848C, tabled by the noble Baroness, Lady Hollins. Amendment 667A would require the Secretary of State to make regulations to provide for a specialist register of assisted death practitioners and the criteria for entry in that register. As the Government would begin work on regulations only after the Bill receives Royal Assent, the requirement to make regulations within one month of the day on which the future Act is passed may be unworkable. In addition, significant policy work would be required to understand what a specialty for assisted dying would look like.
Amendment 848C would additionally prevent registered medical practitioners performing functions under the Bill if they are not included on the GMC’s existing specialist register with a primary specialty in geriatric medicine, palliative medicine, medical oncology or clinical oncology. My noble friend Lady Blackstone referred to that. The effect of this amendment would be to exclude clinicians who may have relevant experience and qualifications. This may limit the Government’s ability to design an optimal service.
Amendments 681 and 864, tabled by the noble Lord, Lord Goodman, give rise to two key workability issues. First, they duplicate matters largely covered in Clause 31 and Schedule 3. Secondly, Amendment 681 would introduce a complete right to conscientiously object to taking part in the provision of assistance. This conflicts with Clause 31(7), which contains a small number of duties that cannot be opted out of—for example, recording the cancellation of a first declaration, or passing on or recording information about a person in their medical records, which may be relevant to their eligibility for assisted dying. If a person is able to opt out from participating in any aspect of the Bill, without any exceptions, this may render the Bill unworkable.
I turn to Amendments 668 and 670, tabled by the noble Lady, Baroness O’Loan. Amendment 668 seeks to replace “registered medical practitioner” with “person” in Clause 31(3). This would widen the provision, so that individuals with express statutory duties in the Bill would not be obliged to perform any function under the Bill. This would include, for example, the Secretary of State, Welsh Ministers, the assisted dying commissioner and members of an assisted dying panel. Allowing opt-outs for these roles could make the Bill unworkable. Amendment 670 also seeks to provide an opt-out for ancillary functions, such as administrative tasks or the supervision of staff. This could broaden the range of activities that a person can refuse to carry out and give rise to significant operational issues.
Amendment 679, tabled by the noble Baroness, Lady Grey-Thompson, could limit the places where assistance could be provided. It could, for example, preclude access to an assisted death for those residing in some private hospices or care homes. The Committee may wish to note that this amendment may result in inconsistent treatment for patients when seeking to access an assisted death and could give rise to Article 8 ECHR issues, unless a reasonable and objective justification were provided.
As noble Lords will be aware, the other amendments in this group have not had technical drafting support from officials. The issues raised by these other amendments are rightly matters for noble Lords to consider.
To respond to the direct question from the noble Baroness, Lady Berridge, no civil servant working on the Bill was put under any pressure to work on it.
In response to the noble Baroness, Lady Smith of Newnham, policy decisions regarding opt-outs within the Bill are for the sponsor. However, once legislation is passed, the Government as a whole are expected to implement it. If an individual had an objection to working on assisted dying policy due to a personal conscience objection, issues would be handled case by case, through discussion.
Baroness Finlay of Llandaff (CB)
What assessment was made by the Government when saying that the proposals in these amendments would limit the ability to design an optimum service in relation to the Bill, given the system in the Netherlands where SCEN doctors—the second opinion doctors—have specific training and are specifically listed as being able to provide that information? That is a nation where the number of people euthanised is very much higher than suggested in the impact assessment. Having a group separately trained and listed, who are deemed to be specialising in part of this, seems to work in the Netherlands. I would be interested to know what assessment the Government made of that in formulating their response to this group of amendments.
Baroness Blake of Leeds (Lab)
I cannot answer that specific question, and I am not sure it would be appropriate for me to do so. We note the comments that the noble Baroness made.
Lord Falconer of Thoroton (Lab)
My noble friend loves sometimes to overstate it, I have to say, but we should do our best to try to co-operate and reach agreement. I express my gratitude to the Committee for all the opportunities they have given me to listen over the past 15 days, with two more days to come.
I will deal with the issues that have been raised under four headings. First, is this an opt-in or opt-out system, and, if it is not an opt-in system, do we need to change it to make it one? Secondly, is the width of the opt-out in Clauses 5 and 31 wide enough? Thirdly, what should we do about the suggestion of the noble Baroness, Lady Fraser, and others of a register? Fourthly, the suggestion of the noble Baroness, Lady Cass, was significant, and we should think about whether that is workable in a variety of ways.
Is this an opt-in or opt-out system? I have spoken to a lot of people on this, in particular the BMA. It is not happy that the Bill in its current draft is adequately clear that it is an opt-in system. In accordance with the wishes of the BMA, and after considerable discussions with it, in Amendment 669A we have included a requirement that everybody who has the specialist training—which is a necessary requirement before you can participate as a doctor under the scheme—has opted in to the specialist training. The BMA was very clear, and I accept this, that opt-in should be in the Bill so that there can be no doubt about that. We have done that and I hope that everybody will agree with it.
Baroness Finlay of Llandaff (CB)
I do not quite understand, then, why I received a letter dated 26 March, just this week, from the Royal College of General Practitioners, requesting explicit clarification in the Bill to make it clear that there is no expectation on any doctor, including GPs. I wonder whether there were discussions with the royal college and whether its comments had been rejected.
Lord Falconer of Thoroton (Lab)
There is a difference between expectation on the one hand and opt-in on the other. We take the view, after discussions with the BMA, that opt-in is sufficient to make it clear that you have to actively take a step before you are required to participate. The fact that you have to opt-in means there is no expectation, one way or the other, that you need to opt-in. I take the view that that is an adequate response. I do not know whether the Royal College of General Practitioners had a chance to look at our amendments, but I suspect that they will be adequate in relation to that point.
From there, I go on to Clause—
Baroness O’Loan (CB)
I thank the noble and learned Lord for giving way. This really is the most important point. There are elements of the delivery of health service that require an ability to understand what a doctor is doing and what his views are. If we only have doctors opting in, we will not know which doctors have opted in, and they will not know which doctors have opted in. They may wish to do the training and then, after, to not participate in the process. That may change their views. Therefore, it is not sufficient to make a clause that says, as Amendment 669A does, that the doctors will opt in and therefore that deals with the problem of opting in, because it does not. The reality is, with great respect to the noble and learned Lord, that we need a specific provision for opting in in the Bill, as suggested by the noble Baroness, Lady Finlay.
Lord Falconer of Thoroton (Lab)
There is a specific provision for opting in. I am not quite sure what the noble Baroness is saying. It is absolutely clear that that is the provision.
I move on to the amendments to Clauses 5 and 31 on the width of the opt-out. As far as Clause 5 is concerned, as I indicated to the noble Lord, Lord Harper:
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.
A number of noble Lords, including the noble Lord, Lord Stevens, made the point, and he referred to Professor Ruck Keene and others’ articles on the problem. We have approached the question of whether it is a treatment or not on the basis of what provides a practical answer to doctors and medical professionals. If you say that it is not a treatment, I do not see why that would necessarily obviate the need, if you are worried about doctors or health professionals having, in particular circumstances, to raise it. The key thing for the doctor to know is there can never be a legal duty on him or her to raise it or to become a participant in the system.
What more could—
Lord Falconer of Thoroton (Lab)
Let me finish.
What more could one do to give protection to doctors? Beyond saying that there will never be a duty to raise it or to participate, I cannot think of what wording there could be.
Lord Stevens of Birmingham (CB)
I thank the noble and learned Lord for giving away. One answer would be to simply put in the Bill that this is not a treatment, in which case all the other consequences would not arise. The question, just to clarify, is: is he saying that assisted dying is deemed to be a treatment? Nevertheless, his Bill overrides the duties on a doctor affirmed by the Supreme Court in July 2023 in the McCulloch case.
Lord Falconer of Thoroton (Lab)
Yes, there can be no duty to raise a question of assisted dying if an Act of Parliament says that there is no duty to raise it. That case, the Montgomery case and the normal negligence cases do not in any way lurk in the background waiting to, as it were, stop this. It is absolutely plain that the effect of this provision and the provision in Clause 31 is that if you did not raise it, there can be no legal kickback of any sort. That is why it was phrased like that, and that is why putting in the words “it is not a treatment” would not be sufficient.
Lord Lansley (Con)
I entirely agree with what the noble Lord, Lord Stevens of Birmingham, just said. We just heard from the Minister that one of the possible implications of the Bill is that, because of Clause 41(4), the NHS Act 2006 would need to be amended in order to bring this service into the scope of what the NHS Act says is the role of the National Health Service.
Potentially, if I understood the Minister’s wording correctly, bringing assisted dying within the context of treatment under the NHS Act 2006, rather than amending the NHS Act to say that the NHS is going to provide this service, is entirely the wrong thing to do, but it does not form any part of the comprehensive service that the NHS provides for promoting the improvement of people’s physical and mental well-being.
How this Bill would be interpreted in the context of the responsibilities of the NHS, as the noble Lord, Lord Stevens, told us on a previous day, is a very important question to which the sponsor of the Bill is not giving us an answer.
Lord Falconer of Thoroton (Lab)
We have discussed this before and the noble Lord, Lord Stevens, is right. He is referring to the 2006 Act—not the noble Lord’s Act but the one before it—which says that the obligation of the National Health Service is to provide treatment and care. There is then a question of whether that includes assisted dying, which is unresolved. If it is to be provided by the NHS then there must be some amendment to that Act, as it refers to the basic constitutional point.
That is of little assistance to a doctor who needs to know whether he could be in breach of any legal duty by not providing assisted dying. That is the key question that is raised—and it is unequivocally answered by Clauses 5 and 31.
Baroness Fox of Buckley (Non-Afl)
The confusion is that a doctor’s duty is to present a patient with all the possible treatments they could have. If they refuse to mention chemotherapy or that the patient could take this painkiller, they would be negligent and could get struck off. If assisted dying becomes a medical treatment, then, regardless of conscience clauses, a doctor would be under a duty to offer it as a treatment. If they did not, they would potentially be in breach of their medical role as a doctor and open to civil liability. Noble Lords cannot keep saying, “I have said opt-in, it’s fine, stop worrying, we’ve said that your duties are fine”. Those of us who are concerned about that doctor’s conscience are saying that if it is a medical treatment, their duty will be to offer it and that nothing said here will cancel that. They could lose their professional reputation and their job and end up in the courts. That is what we are worried about.
Lord Falconer of Thoroton (Lab)
May I say that the noble Baroness puts it brilliantly? Here is a range of treatments, or—deleting “treatments”—here is a range of things that can be done. One of them is assisted dying. The worry that the noble Baroness expresses is that if it is a thing that can be done, using it neutrally, if you do not tell the patient that then you could be negligent or in some problems. That is why, whether it is a treatment or not, we have dealt unequivocally with the problem by saying, “You are never under a duty to raise it”. It is not to be treated as being in the same category as the other treatments, such as chemotherapy. The noble Baroness, Lady Fox, expressed the problem exactly. We have addressed the problem. She may not like the answer but, as far as the doctors are concerned, they have complete clarity and complete protection.
Moving on from whether this is an opt-in or an opt-out—we have made it an opt-in, subject to the amendment being agreed—the next issue is the width of the opt-out in Clause 31. As I have pointed out, Clause 5(1) states:
“No registered medical practitioner is under any duty to raise the subject”.
Clause 31—I am sorry to weary noble Lords with this; we have looked at it a bit already—states:
“No person is under any duty to participate in the provision of assistance in accordance with this Act”.
That means that no person is under a duty to do the things referred to in Clause 26. Also:
“No registered medical practitioner is under any duty to become—the coordinating doctor … or the independent doctor … No registered medical practitioner, other than the coordinating doctor or the independent doctor, is under any duty to perform any function under or in connection with this Act … No health professional or social care professional is under any duty to respond”
to any request for information in connection with assisted death. Also, no
“registered pharmacist or registered pharmacy technician is under any duty to participate in the supply of an approved substance”.
Lord Harper (Con)
Given that I had raised the concern and the noble and learned Lord took care and trouble in responding to it, I listened very carefully to what he said. The problem is that what he said about no one being forced to participate in the steps set out in Clause 26 and all the other provisions would not cover—to pick the example from the noble Baroness, Lady Fox—the porter who is being asked to take the patient to the room in which they were to be assisted in ending their life. If that porter were to say, “I don’t wish to do that because I don’t wish to help this person end their life”, nothing in what the noble and learned Lord said would provide them with any protection, which is why many of us do not think this provision is wide enough.
The unfortunate thing is that it probably provides quite a lot of protection to the more senior people in this process—the doctor and the medical professionals—but it fails to provide protection to the more junior people involved in this process. Those without medical qualifications, such as the porters, the administrative staff, the cleaners and the other people who work in a healthcare setting, do not appear to be protected at all.
Lord Falconer of Thoroton (Lab)
In relation to a porter, for example, a porter cannot be required to be in the room or helping in—I said Clause 26 but I meant Clause 25, which is in relation to the provision of assistance; I apologise for that. The noble Lord has given an example of a cleaner. There are many other examples of administrative staff in a hospital, for example. The sponsors of the Bill have taken the view that there should not be a conscience clause in relation to, for example, a cleaner or somebody doing ordinary administrative tasks, because you have to make these institutions run properly. What there should be an absolute bar on is either being a doctor participating in the process or being actually involved in the process of providing the lethal drugs under Clause 25. We have drawn the line there, and it is for the House to decide whether it thinks the line is in the right place.
Lord Falconer of Thoroton (Lab)
Can I go on for a bit? I will come back at the end if there is time, but let us keep going.
Next, on the register, I think Amendment 189 from the noble Baroness, Lady Fraser, is trying to do two things. First, it is trying to have some sort of opt-in process, because it says:
“Registered medical professionals who are unwilling or unable to conduct preliminary discussion are not required to join the register under subsection (6)”.
That is her proposed new subsection (8). That is not really an opt-in; you are “not required to join”. My conversations, in particular with the BMA, make it clear that it wants the words “you’ve got to opt in”, so I am not sure that that bit on opt-in or opt-out quite gets it.
On the other point about a register, it might be that in time there should be a register. I am very strongly not in favour of putting a register in the Bill. Let the Secretary of State and the medical profession say if that is an appropriate thing to do. I do not think it goes to the fundaments of the Bill. Although I am struck by the robustness of the noble Lord, Lord Moore, on behalf of doctors, I do not think, without further consultation after the implementation period has gone through and without a bit more knowledge about what the effect might be, that one should willy-nilly put on to a public register, in the public domain, the names of people who are willing, and therefore people who are not willing, to do assisted dying.
Lord Lansley (Con)
In Amendment 189, the lead amendment in this group, my noble friend is looking for who one goes to in order to provide the necessary assistance to a person if the original conversation is not something the doctor wants to pursue. All doctors are supposed to have training, and they opt in to the training, but how do we know who they are if we do not have a register?
Lord Falconer of Thoroton (Lab)
The precise knowledge of who does it, where the list is kept, who registers with whom—for example, whether they register with the commissioner—is about detailed implementation, and I am strongly of the view that we should not try to get into the nitty-gritty in relation to that in the Bill. I recognise why the noble Baroness, Lady Fraser, proposes putting this into the Bill, but I hope she will understand why, first, in relation to opt-in, I am not sure it quite gets there, and, secondly, in relation to a register, I am not in favour of it at the moment.
Lord Deben (Con)
I am genuinely trying to help the noble and learned Lord for this reason: I am concerned about the person who wishes to avail themselves of this Bill. I do not understand how you do that effectively unless you can look at a list and get the person you want. I am concerned that those of us who want real protection must not overcomplicate the Bill, even if we are against it. That is why I am genuinely saying to the noble and learned Lord that if there is no list, I do not understand how somebody can, with ease and confidence, take part in something that I do not like but that, if it were the law, would be available. That is what I am concerned about. If there is no list, there is a great deal of obfuscation. It seems to me that it should be part of the policy of those presenting the Bill to expect a list.
Lord Falconer of Thoroton (Lab)
I am very grateful to the noble Lord for his assistance in relation to this matter. As far as I am concerned, precisely how one identifies who is available to do it should be worked out in the implementation because it goes to publicity and to what is the most convenient way of doing it, and I do not think that normally or sensibly this should be in the Bill.
The noble Baroness, Lady Cass, is proposing that in the course of the conversation, which is referred to in Clause 12, the person should say that this is their own choice. I think that is not necessary or appropriate where one of the things that the two doctors and the panel have to be satisfied of is the fact that this is the clear, settled and sustained view of the person. I do not think that putting words in, as it were, is appropriate.
I understand why the noble Baroness says that you should have the two doctors together, and they should refer to what is, in effect, the written record of the multidisciplinary team. If that is available, they should definitely do that, but I do not think it will be available in every case. One hopes that it will be, but I cannot be sure that it will, and that should not be a bar to doing it. I see the force of saying that the two doctors should do it together, but my anxiety is that, if you are looking for genuine safeguards, you have to have a position where the two doctors who have reached a view that the conditions are satisfied have done so independently of each other. I can see the convenience of doing it together, but I think it has to be done separately instead.
I have had the benefit of discussing with the noble Baroness, Lady Cass, many of the ideas that she has put forward; I have found that incredibly helpful. One of her helpful insights is that, in reality, this will in effect have to be some sort of specialist service. If you want somebody to help you in relation to this, it has to be somebody who has expertise in doing it. But that insight does not mean that it has to be completely separate from all the other care you are being provided with. Frequently, when someone is dying, they have a variety of specialists helping them as part of a team. If assisted dying is what the patient wants, I do not think that the specialist should feel that they have to be completely separated from the rest of the team looking after the patient.
Baroness Cass (CB)
May I respond to that? I have not said that they cannot be part of the team. It is likely that the person who is covering a particular area or locality will be known to the team and to the palliative care services. They may or may not be as familiar as other specialists—I hope not, by virtue of the fact that we are anticipating smaller numbers—but they would be a separate individual who comes in, like a cardiologist.
Lord Falconer of Thoroton (Lab)
I am sorry; I stand corrected. What I was getting at was that they should not feel that they have to separate themselves. If I wanted an assisted death, at home, I would like to think that the people caring for me would still be available to me up until it happened. I suspect that that would matter to me quite a lot.
Baroness Cass (CB)
They would; that is the point of it. Your co-ordinating professional, as I described them, would be with you throughout, as would the specialist assisted dying doctor, from the time you started engaging with them. You might want to check in with one or the other, depending on whether you wanted your symptoms addressed or another discussion about what the process of having an assisted death would be like.
Baroness Lawlor (Con)
May I check something regarding my Amendment 664? Given that the noble and learned Lord insists that no person will be under any duty to perform or provide for an act under this measure, will that apply to participation in training, since training is not a duty to do something?
Lord Falconer of Thoroton (Lab)
You have to opt in to training in consequence of my amendment. Therefore, there can be no duty to participate. I do not think it is necessary to say that in the Bill.
The noble Lord, Lord McCrea, who is not in his place, raised the point about care homes, hospices and other institutions. Along with the sponsor of the Bill in the Commons, I have had considerable conversations with Hospice UK. Its anxiety is that if it says “no”, institutionally, to assisted dying, that could affect in various ways its entitlement to funding, particularly from the state. I am alive to that concern, and we should deal with it in the Bill; I have been working on trying to do that. I should make it clear that this is limited to hospices only. We are looking at that area, and once we have done so, it may be limited to private—not NHS—hospices. It requires work, but the point made has validity in relation to hospices but not care homes.
Lord Harper (Con)
This will be my last intervention, I promise. I just want to press the noble and learned Lord on this issue. In the exchange we had earlier, he confirmed that in Clause 31 the right to not participate is “in the provision of assistance”. I was unclear about the definition of “provision of assistance” and he confirmed that it meant the steps set out in Clause 25 —he corrected himself—which is titled “Provision of assistance” and is about the endpoint of the process: the provision of the poisons that will end someone’s life. I think that he confirmed, but I want to make sure that I am absolutely clear so that I do not misrepresent him, that that means it would not be open to, for example, the porter who did not want to take the person to the room in which the substances would be administered to say that they had an objection to this process and would not carry it out. They would not be able to use the provisions under the Act, they would not have the protections, and I do not think that that is right.
Lord Falconer of Thoroton (Lab)
Clause 31(1) states that “No person”—it is not restricted to doctors—
“is under any duty to participate in the provision of assistance”,
as defined in Clause 25. Subsection (2) states that “No registered medical practitioner” has to become a “coordinating doctor” or an “independent doctor”. Subsection (3) states:
“No registered medical practitioner, other than the coordinating doctor or the independent doctor, is under any duty to perform any function under or in connection with this Act”.
I have set out my position on that, including in relation to the porter example. I do not think I should go further than that.
Baroness Finlay of Llandaff (CB)
My Lords, I hesitated but I want to come in on that, because I am not clear what the position is for care assistants and people who are involved in the intimate care of patients. In Australia in particular, there have been problems where staff such as care assistants, who are not qualified nurses, feel that they are providing the patient with their last bath and last meal and that it feels as if they are having to, in effect, prepare somebody for their execution—the end of their life. That might sound shocking in the way that it is expressed, but that is how it was relayed to me. Similarly, staff who are preparing a meal that turns out to be a person’s last meal can find that very distressing.
If I have heard the noble and learned Lord correctly, those staff will have no ability to have any conscience objection whatsoever. In effect, they are being treated as people who just have to operate in their job, like it or leave it. Is that correct?
Lord Falconer of Thoroton (Lab)
Not in that language, not at all. But if, suppose, you are a care assistant giving somebody a bath before the provision of assistance, there is no conscience clause in relation to that. I am not sure whether the noble Baroness is suggesting that if you are caring for somebody who you know is subsequently going to have an assisted death, there is some point at which you, as a care assistant, should be entitled to say, “I’m not going to provide assistance to that person because I find the issue of providing assistance contrary to my conscience”. But as far as the Bill is concerned, every person, doctor or not—that includes care assistants—is under no duty to participate in the provision of assistance in relation to the provision of the substance under Clause 25. Working back from that, the person does not have the protection.
Baroness Finlay of Llandaff (CB)
So, to clarify, the noble and learned Lord is not allowing a provision here to say that if you have strong feelings, for instance, you will be able to ask not to be rostered to work on that shift, or on that day, or in that situation, and instead be able to be moved to another place. One of the solutions in some places has been that when an assisted death is scheduled, the members of staff who do not want to work that day have a right to be rostered off, so as to be able to assert their conscience.
Lord Falconer of Thoroton (Lab)
If the position is that if you are on the roster, there is a risk that you will be in the room and assisting in relation to the provision of assisted dying, of course it would be sensible not to be rostered on that day. That is the sort of solution that I hope that people would be looking for.
Baroness Lawlor (Con)
The noble and learned Lord’s Amendment 669A refers to Sections 8(7), 11(9) and 26(2), but that is only for medical practitioners, it is not for other medical professionals. It is for that reason I tabled my Amendment 664, so that anybody had to opt in to training for this, not just the medical practitioners, which I am very glad to see the noble and learned Lord’s amendment accepts. It is the others.
Lord Falconer of Thoroton (Lab)
The noble Baroness is right that the opt-in provision that I have introduced is in relation only to the doctors. That is because it is the doctors who are given the particular role under the Bill. This says that you need to be trained before you can do particular functions under the Bill. That is why there needs to be an opt-in.
Equally, in relation to others, there is a no-detriment clause if you say you will not participate; and depending on who you are, you can participate if you are any person not in the provision of the assistance. As you go wider, you have wider protections if you are, for example, a doctor or a healthcare professional.
Baroness Lawlor (Con)
Somebody who is employed by an agency, or an agency nurse, may not have the whole provision of the text in front of them, and they may not be encouraged to look into the exemptions for conscientious or other reasons about which we have heard. It is for that reason, if it is on the face of the Bill, that anybody involved in the medical or social care of frail people should know that they are entitled under law to opt out of such training.
Lord Falconer of Thoroton (Lab)
I think we know the differences between us. I have set out what my position is. I am grateful to the noble Baroness for setting out hers again.
Baroness Berridge (Con)
In relation to what the noble and learned Lord said in response to the noble Baroness, Lady Finlay, about not being rostered being a sensible solution, that is a different language from having a legally enforceable right to say to your employer, “I do not want to be rostered on that day”. Is that the correct position, as I understand it? Will the noble and learned Lord concede that these problems arise from the fundamental pillar of the Bill, which is that you can base this on the notion of autonomy, which is based on choice, but conscience is a different concept from that, and that is why we are in these difficulties?
Lord Falconer of Thoroton (Lab)
I honestly do not think that these are difficulties. There is absolute clarity in the Bill as to what the legal position is, and it is a very wide exception. It is more than sufficient to give protection to people who do not want to participate in the provision of assistance under the Bill. Pushing it wider and wider simply gives rise to uncertainty. The key thing is that there should be certainty and sufficient width, and I believe that is what Clause 31 has done.
Baroness Coffey (Con)
I do not think that the noble and learned Lord spoke to his Amendments 422, 423 and 888. It is possible that he could do that in another group at a later date, but I wanted to clarify whether he would make sure that he does that.
Lord Falconer of Thoroton (Lab)
Amendments 422 and 423 are to create a regulatory power to allow co-ordinating doctors or independent doctors when they step down in certain circumstances not to have to give notice; for example, if they are too ill. It is a practical drafting change.
Baroness Grey-Thompson (CB)
My Lords, in addressing the noble Lord, Lord McCrea, I think the noble and learned Lord was actually answering one of my questions on Amendment 679. I think the noble and learned Lord suggested that there might be a differentiation between NHS and private providers in the hospice sector. Does he see a scenario where people may feel reluctant or frightened to enter into an NHS hospice because it may be provided there? Will this not put more pressure on private providers?
The noble and learned Lord has rejected many of our amendments, arguing that they are not necessary because there should be totally equal access to the process. But is this not going to create a two-tier system where those who do not want to discuss assisted suicide and might be able to afford a private provider will be able to stay away from any discussions, whereas someone with less money will be forced to go into NHS provision?
Lord Falconer of Thoroton (Lab)
No, I do not think it will because the nature of the safeguards in relation to everybody is such that the idea that an assisted death will be forced on people is wrong.
Lord Deben (Con)
There is one last thing I would like clarification on. When the noble and learned Lord spoke about hospices, he said in a slightly confusing way that that did not necessarily refer to care homes. I am concerned about care homes that are run by organisations for which this is unacceptable. Are they going to be protected and be able to say that from the beginning, so that anybody going into a care home of that kind knows precisely the terms under which that care home is run?
Lord Falconer of Thoroton (Lab)
The only organisational exceptions that I am contemplating—the exceptions in Clause 31 are for individuals—are in relation to hospices, not care homes.
Lord Stevens of Birmingham (CB)
I think the noble and learned Lord has just made a very important point. To clarify: he is saying that Clause 31(8)(b) would not apply in hospices; in other words, as drafted, the Bill would prevent a hospice as an employer from restricting doctors who were working for that hospice from also participating in assisted dying. If the hospice wanted, as a matter of philosophy or ethos, to say, “We do not want to be part of that”, is the noble and learned Lord saying that it would have an opt-out from Clause 31(8)(b)?
Lord Falconer of Thoroton (Lab)
I am not sure I have understood the question. If the question is, “Can a hospice opt out from the opt-out?”, the answer is no. Can the hospice have a separate opt-out? That may be the position, but I need to consider how to deal with that.
Lord Stevens of Birmingham (CB)
To clarify, I think Clause 31(8)(b) prevents a hospice as an employer restricting its employees from participating in assisted dying if they do it somewhere else. Is the noble and learned Lord saying that he is willing to change that?
Lord Falconer of Thoroton (Lab)
What I am thinking about is a provision that says if, as a hospice, you say you do not want to provide it, you should not suffer various sorts of institutional detriment. That is what I am interested in. I am not saying anything about Clause 31, because I am not understanding the noble Lord’s question, but that is what I am thinking about, to be clear.
Lord Stevens of Birmingham (CB)
I think what follows from that is that the noble and learned Lord is accepting the position that hospices will not be in a position to restrict their employees from participating in assisted dying, if they are doing that somewhere other than in the hospice.
Baroness Fraser of Craigmaddie (Con)
My Lords, I thank all noble Lords for this extremely interesting and long debate. I do not think I can possibly sum up in any better way than the noble and learned Baroness, Lady Scotland, did. I felt that she summed up brilliantly the issues that have been raised over the last three and a half hours.
I will come back to the noble and learned Lord, the sponsor. He posed four responses. First, we all seem to be coalescing around the idea that the Bill should contain an opt-in, and he has given us Amendment 669A as his response. The mood of the Committee, if I may say so, is that that is not sufficient, and the mood of the royal colleges seems to be the same.
The second point was: is it wide enough? The resounding answer seems to be no. I am sorry, I always come back to practicalities in this Bill; although it is fine to refer to the clauses, it is about what is actually going to happen—how are people going to take these words and implement them? How would you say no? I am thinking about a busy ward where an assisted dying request is in process but someone does not want to participate. They might fear that speaking up at that point might be seen as obstructive or harm their chances of promotion. They might not have the confidence to speak up to their superiors, which would not be a healthy work dynamic. There is nothing in the Bill that allows that person to say, “I didn’t opt in to this”. An opt-in system would make it all agreed. Things would be known about before there was a crisis, people would have the right to change their minds and there would be a mechanism to do so. I am afraid that is where Amendment 669A fails, because how can you opt out later? Where is the provision for that?
The Deputy Chairman of Committees (Baroness Morgan of Drefelin) (Lab)
The noble Lord, Lord Shinkwin, will be taking part remotely. I invite the noble Lord to move his Amendment 193.
Amendment 193
Lord Shinkwin
“(7) If a registered medical practitioner or other health professional raises the subject of the provision of assistance in accordance with this Act with a person, or if a person raises the subject with a registered medical practitioner or other health professional, it must be considered a preliminary discussion and the discussion must be recorded.”
Lord Shinkwin (Con) [V]
My Lords, I make it clear at the outset that I do not intend to press my Amendment 193. I also support the other amendments in this group and look forward to learning and listening, as I am sure the noble and learned Lord does, before I wind up at the end of the debate on this group.
The modest and reasonable nature of my Amendment 193 belies its significance. It is crucial to ensuring transparency and thus trust—the trust of the patients, their families, the medical profession in the widest sense, any relevant legal and regulatory bodies, and, of course, the public. In practical terms, the amendment would require:
“If a registered medical practitioner or other health professional raises the subject of the provision of assistance in accordance with this Act with a person, or if a person raises the subject with a registered medical practitioner or other health professional, it must be considered a preliminary discussion and the discussion must be recorded”.
This is therefore very much a “to be or not to be” amendment, because the noble and learned Lord’s response to it will show whether he wants the assisted dying regime that his Bill would create to operate transparently or in the shadows. It will show whether he recognises that transparency is crucial to engendering at least a modicum of trust in the assisted dying process he proposes, or whether he has something to hide and would much rather plough on regardless.
As a lifelong NHS patient who receives a copy of any post-appointment letter sent by my orthopaedic surgeon to my GP as a matter of course, I find it not just positively Neanderthal but pretty sinister that such a pivotal exchange as a preliminary discussion about assisted dying would not be recorded in a way that explicitly involves the patient after the conversation as well as during it—and that it would implicitly not apply beyond a practitioner from the “person’s GP practice”, to quote the Bill. Surely this begs the question of why any registered medical practitioner or other health professional involved—or indeed the patient—would not want there to be a record of what was said and, furthermore, for that to be made available to both the patient and appropriate stakeholders, such as but not only their GP, within the set timeframe, as provided by amendments in this group that other noble Lords will speak to.
We are assured by Kim Leadbeater in the other place that this Bill provides for the safest assisted dying regime in the world. I beg to differ, but it is good to know none the less that she acknowledges the need for the question of its safety to be addressed. This amendment would do exactly that: its sole purpose is to improve safety. At its heart is the recognition that it is vital to have a written record of the preliminary discussion in the way that my amendment provides, because it would act as a legal gateway to the assisted dying process and provide a permanent trail of evidence for a decision that is final and irreversible.
Maintaining a robust written record of the preliminary discussion, and ensuring it is completed and circulated promptly, is therefore a fundamental safeguard required to ensure the transparency, accountability and clinical safety of the assisted dying process. Without such a record, the preliminary discussion will always be regarded as having been conducted properly, making it impossible, in effect, to regulate the process. So it is not good enough for the noble and learned Lord to point to Clauses 7, 9, 10, and 11 as if to say, “What’s the problem?”, not least because Anna Dixon’s amendment in the other place—which explicitly required a doctor to
“record and document the discussion and the information provided”
and give a copy of the record directly to the patient—was not included in Kim Leadbeater’s new Clause 7 on recording.
The noble and learned Lord may rely on Clause 44 and say that the Secretary of State would have the power to require this. However, that would not put in the Bill that there should be a record of the preliminary discussion or set a minimum standard format or a required level of detail for its contents. The Secretary of State would have the power to require this, according to the Bill, but I draw noble Members’ attention to the Delegated Powers and Regulatory Reform Committee’s recommendation which signalled that this was inadequate. It recommended, instead, that the Bill should be amended to explicitly clarify
“what type of event or other information must be notified or the principles underlying notification”
in primary legislation. That is what this amendment seeks to do.
In closing, I simply highlight that my amendment and the others in this group seek to address what is already, sadly, a known problem in other jurisdictions, including Canada and Australia, resulting in disciplinary action and official findings of non-compliance. Let us learn from them and pay heed to the evidence given to the Bill Select Committee by Dr Michael Mulholland, honorary secretary of the Royal College of General Practitioners. He said:
“If you were having assisted dying conversations, you would want to make sure it was recorded at every point that people were thinking about this on the way through”.
Indeed. Why would you not? I hope the noble and learned Lord will accept my amendment. I beg to move.
Baroness Hollins (CB)
My Lords, I commend the important speech of the noble Lord, Lord Shinkwin. Decisions at the end of life are complex, and a single conversation simply is not enough to capture someone’s physical condition, mental state, and personal and family circumstances. Attempting to record such a complex conversation is quite a daunting prospect.
Requiring a preliminary step also adds an unnecessary layer of stress before a proper evaluation can even begin. Both Clauses 5 and 7 add more steps but not more safeguards. The key protections in this Bill—checking capacity, ensuring that decisions are genuinely voluntary and identifying any coercion—can and would be addressed within a multidisciplinary specialist assessment. As it stands, requiring a preliminary discussion and recording it adequately risks duplication while causing unnecessary delay, when time is of the essence. Instead, a specialist multidisciplinary panel would provide a full and balanced assessment from the outset, and of course it would be properly documented.
Baroness Grey-Thompson (CB)
My Lords, I have 12 amendments in this group, and I am going to speak also to Amendment 241, which is in the next group but which probably fits better in this one, because it is about the time period for recording information.
The words “as soon as possible” appear eight times in this Bill in relation to the recording of information. I believe that that is a little too vague; it feels like a non-binding term without a strict or official definition. It makes me think of the parliamentary term “soon”, often used by Ministers to suggest something may be coming soon—next week, next month or possibly never.
I think about this process in what might be a busy hospital. It is important not only to gather data correctly but to record it accurately and at pace. The lack of a precise timeframe makes it feel as though we are giving busy staff too much flexibility, which might end with it slipping down the list of things that they need to do when there is a lot of call on their time. It is about providing and recording information that can be open to scrutiny, but the phrase could be used to deflect an immediate challenge or an urgent question, and cannot be followed up in an appropriate way.
On my Amendment 214, I expect there to be some pushback and to be told that I am being overly prescriptive. However, it is important to understand why the person wants to enter this process and whether there are other events, family issues or anything else that could possibly impact it, such as a lack of health and social care. I have other amendments on support, which have been discussed in other groups.
Amendment 214A is about having a witness present—someone who can record the conversation. My noble friend Lady Cass in the earlier group talked about the importance of having a person there; someone who can watch facial expressions, take the mood of the room and possibly look out for coercion. That would allow those doing the initial recording to actually listen to what the person is saying, rather than necessarily having to record every part of the conversation. Amendments 217 and 218 are about recording in a timely manner.
Amendments 562, 563 and 564 are about how we record the cancellation of the process. I was interested in the amendment proposed by the noble Lord, Lord Wolfson of Tredegar, which looked at recording the cancellation immediately. That is a better version than the one that I proposed. If someone decides to stop the process, everybody needs to know that straightaway, rather than something getting lost in reporting or a medical practitioner or a doctor assuming that the person still wants assisted dying.
It is also important to record how many times somebody may have entered and dropped out of the process, which is covered in another group. That would check that someone is not being guided by mental health issues, suicide ideation or pressure. These things are important. We need a minimum standard, and doctors and patients need to know what to expect from each other. When the Delegated Powers and Regulatory Reform Committee looked at the Bill, it said that it lacked definition and that there was lots of unknown information being recorded.
We also have to think about non-compliance. I have read the Bill many times, and there is not enough in it about what happens if this information is not reported correctly. In Oregon—which has been mentioned many times—we know that around 70% of information is not recorded in the paperwork, so we do not know if people are having a good death or not. The Delegated Powers and Regulatory Reform Committee recommended that the Bill needed amendment. The timely reporting of information avoids any sanitation of the notes. It is very easy to forget—I do all the time. I scribble notes and come back to them, even just a day later, and cannot necessarily read what I have written. So this is crucial to how the process will work.
Proper recording should also be there to protect the clinician. This is the complication of the Bill. I have 13 amendments that I am talking to. Actually, I am asking for very little change to the Bill, but the Bill has to be amended in so many different ways. This group also fits with the previous group. In another place, the honourable Member for Batley and Spen, Miss Leadbeater, said:
“I agree that, under the provisions of the Bill, the doctor will have a duty to lay out options available to the patient, if they meet the eligibility criteria—absolutely. That is the whole purpose of the Bill”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 4/3/25; col. 663.]
That is why it is so important that the information is recorded properly.
One of my passholders, Dr David Prosser, is a specialist in forensic psychiatry who works within NHS secure services and His Majesty’s Prison and Probation Service. We have spent a lot of time discussing the Bill: I have been talking to a doctor who could be at the very sharpest end of this. His view is that a doctor has to have very clear criteria against which any assessment is made.
It is also important to achieve operational consistency and quality, because we do not want information being recorded in a different way in different hospitals in different areas. A small business might have to provide more documentation to HMRC than a doctor working in this area. These amendments are not to overcomplicate the process; contemporaneous documentation is really important. This also fits into how the commissioner might oversee compliance with the process if the records are all kept in a different way.
When, in previous groups, we debated face-to-face discussions, the noble and learned Lord, Lord Falconer, said, in that situation:
“It is wrong and dangerous to try to use a phrase such as ‘reasonably practicable’”.—[Official Report, 30/1/26; col. 1214.]
Can the noble and learned Lord therefore explain why it is it okay to use that phrase when we are talking about recording data?
Baroness Lawlor (Con)
My Lords, I will speak to my amendments in this group. They aim to tighten the recording rules in Clause 7 and would make them even tighter than the seven-day limit proposed by the noble Baroness—to whom I am very grateful for her remarks. I propose that, where the discussion is with a practitioner in the patient’s own GP practice, the record of the relevant discussions and assessment is written and saved online on the same day; and that, in other cases, the practitioner must submit the record to the patient’s medical practice, and the commissioner, within a week. My amendments would also require the practice to include this in the patient’s online records. My amendments would impose similarly tight time limits for the submission of the co-ordinating doctor’s assessment.
Speed in recording discussions is of the essence. My experience as a historian, often working with hundreds of documents over a period of a week or even a day in history, suggests speed is important. These are government documents or the private records of officials and politicians. My work suggests that every hour that passes between a conversation and the recording of it brings a loss in accuracy and nuance. In the matter of deciding to take your own life, it is particularly important that the record is as accurate and precise as possible. The same-day requirement should make for greater accuracy, including details that might otherwise be lost if more time elapses. Even insignificant details can turn out to be important.
By contrast, allowing a period of time—the Bill says “as soon as practicable”—will tend to mean that details can be blurred into a general pattern that a doctor may form as a result of having seen a number of patients seeking an assisted death. The individual nature of the case may be lost. A report written up and submitted on the same day is less likely to be affected by hindsight or a desire to tailor the report to ensure that the practitioner will not be held responsible should a breach occur. These amendments in my name leave the medical practitioner the choice of writing a handwritten note at the time or just after the appointment, or keying it later that day into the computer. Although it may be argued that a doctor needs a longer period to see to the paperwork or that the medical practitioner should be allowed more individual choice about how they handle the recording, the obligation for speed and a formal process is imposed by these amendments and is justified, since a person’s life is at stake.
Lord Jackson of Peterborough (Con)
My Lords, I support the amendment in the name of my noble friend Lord Shinkwin and the amendments of my other noble friends, and others. “Verba volant, scripta manent” means “Spoken words fly away, written words remain”. There is a reason that other noble Lords have pressed the issue about the collection of data and how specific it should be. I am going to make a broad reference to the experience in other jurisdictions because, without a record, the preliminary discussion will always be regarded as having been conducted properly, making it impossible to regulate the process.
In Australia, we have already seen VAD documentation failures serious enough to trigger disciplinary action and official findings of non-compliance, including unsigned and backdated declarations in Victoria, witnessing errors, late submission of mandatory forms and hundreds of timeliness-related form issues identified in Western Australia. In Victoria specifically, non-compliant cases included witnessing and late-form problems. In the last annual report, Victoria said one case was non-compliant because of an error in witnessing the contact person appointment form. Six more cases were non-compliant because forms were submitted late, including first assessment, consulting assessment and practitioner administration forms. The board also said a data audit had to identify historic cases where first assessment forms had been started but never submitted specifically to improve data integrity and reporting.
The issues and problems are even more significant and egregious in Canada. There was poor documentation. There are reports of,
“incomplete assessments … recurrent and excessive delays in reporting …frequent errors”
and “missing information”. There has been a lack of evidence on safeguards, Dr Jaro Kotalik, a Canadian academic, noted that, despite federal regulations mandating data collection, there is
“no publicly accessible evidence that the eligibility criteria and safeguards prescribed by law were respected”.
Refusals were also not being tracked. The Canadian system does not require doctors to formally document their refusals, making it difficult to assess patterns of approval bias or doctor shopping.
Back in Australia, former Attorney-General for Victoria Robert Clark described the oversight structure as
“hear no evil, see no evil, speak no evil”.
He testified that the regulator simply checks whether paperwork is signed rather than auditing actual compliance. In one case where a doctor falsely certified a patient’s signature, the regulator merely asked for the missing signature instead of investigating the breach. I am not saying that that is likely to happen, but it is much less likely to happen—even the noble and learned Lord the sponsor will agree—if we have tight wording in the Bill, which is contained in these amendments. For those reasons, I strongly support the amendment of my noble friend Lord Shinkwin and others.
Baroness Murphy (CB)
I just want to comment on some of these earlier amendments, particularly from the noble Lord, Lord Shinkwin. I think the noble Baroness, Lady Finlay—I cannot remember whether it was last week or the week before that—reminded us that people who are terminally ill, or who have discovered that they are very ill and likely to die, have a range of things they want to talk about. Whether they could opt out in some way will almost always go through their head at some stage. Whether it is legal or illegal, that is the way it is, and they will often want to discuss that. But that is not quite what the preliminary discussion for the purposes of the Bill is. It is a rather more formal preliminary discussion, which must cover a number of things—I think there are half a dozen in the Bill. That is not quite the same as the very early recording being proposed for any old discussion that takes place.
Of course, multiple things get covered between a doctor and a nurse, between the nurse and the patient, and between the patient and his doctor about what they are feeling and what they want. However, when it comes to something that is considered sincerely held, it is at that point that the preliminary legal discussion comes in as the first discussion to record.
A lot of these discussions will be recorded in the medical notes. My experience of reading many medical notes is that they do not cover what you would like them to, but on this occasion they often will. Nevertheless, it is not quite the same as what is proposed in the Bill. I urge people to concentrate on what is recorded in the Bill as having to be recorded for that preliminary discussion, because that covers a huge amount more than is being proposed in some of these amendments.
Baroness Finlay of Llandaff (CB)
In light of the fact that the noble Baroness said this would be a formal discussion, does she agree that if we are sticking with the principle of choice, autonomy and accurate information, it becomes even more important that the patient is given, as fast as possible, a comprehensive copy of that discussion, and that it is not just left filed in a medical record but should be given to the patient for them to look at and reflect on?
Baroness Murphy (CB)
I do not know what the noble Baroness’s discussions with her patients are like, but I remember mine very well. A lot of discussion that goes on between a doctor and a patient does not get formally recorded but is part of the everyday conversation of a consultation. I think we must recognise that we need, as the noble Baroness, Lady Fraser, urged us this morning, to get back to the realistic issues about what patients want and what they talk about.
It is important that we remember what the Bill is about. It is about trying to do something with what we have in normal day-to-day medical practice. It is not about imposing something else on what is ordinary day-to-day practice until such time as people have expressed—probably repeatedly—a settled wish to go down this route and they are terminally ill. Then the proper discussion kicks in and they need all that information. How much of it is provided to them in written form and how much orally is a judgment between the doctor, the nurse and the multidisciplinary medical team looking after them.
Lord Rook (Lab)
My Lords, I thank the noble Baroness. Her points are a helpful segue to the amendments that I will speak to, which are very much about the first formal conversation that takes place between a medical practitioner and a patient who is interested in exploring the potential of an assisted death.
I will speak to Amendments 213 and 216 in my name. Like others, I am grateful for the work that has gone into strengthening the Bill; the decision to record the preliminary discussion is significant and important. That said, there remains, in my opinion, a serious gap. Although records must be made, at the moment the commissioner who is responsible for the oversight of this system does not have access to, or visibility of, these records. I recognise that we are close to the Recess and I do not wish to lead noble Lords’ minds astray to their Tube journey home, but my amendments are an attempt to “mind the gap” that has been created here. I hope, in fact, they go a bit further and maybe fill the gap.
By simply making available to the commissioner these written records of the preliminary discussion, oversight becomes evidence based rather than simply allowing regulators to assume the best. This preliminary discussion is the gateway moment in what will be, for some, their final journey. In that moment, a doctor has first sight of the patient’s capacity. In that consultation, the patient first hears their full range of options. In that encounter, there may be the first warning signs of other problems—for instance, evidence of coercion or distress. Because, rightly, this conversation will go on in private, the doctor’s written record is the only durable account of what is likely to be a determinative discussion. As it stands, that account is not available to the scrutinising body, which is the very mechanism charged with monitoring the system.
This raises two questions. First, I ask my noble and learned friend Lord Falconer of Thoroton: if informed consent is the ethical foundation of this legislation then how is this meaningfully verified by the commissioner if the primary record of what was explained, asked and understood is not available to them? Without that record, it will not be possible for a commissioner to verify consent; rather, they will simply take it on trust. Secondly, my question for my noble friend the Minister is: how do His Majesty’s Government expect the commissioner to investigate concerns, or ensure compliance within the safeguards of this Bill, if they are not entitled to see the contemporaneous written record of the very discussion that initiated the process?
We all agree on the need for safety, and if these services are not sufficiently regulated I fear they may not be sufficiently safe. A regulator who cannot see the record cannot regulate the system. A commissioner who can examine only summaries cannot give the system a complete bill of health. There are wider implications too. If a family raises concerns about coercion, what is the evidential basis for any investigation? If a clinician is accused of misconduct, what information do they have with which to defend themselves? If Parliament or the public wish to understand how this law is operating, where is the underlying data that can provide the detail and confidence they seek?
We have, sadly, seen what happens when regulators do not have sufficient sight of the systems they oversee. Between 2005 to 2009, there were serious failings in Stafford Hospital, including widespread patient harm and avoidable deaths. Despite the presence of multiple regulatory bodies, including the Healthcare Commission, the Mid Staffs’ problems were not identified or acted on in time. Why? It is because the regulators relied on aggregated data targets and self-reporting; lacked access to, and failed to interrogate, evidence; and did not have full visibility of serious warning signs and complaints. The lessons learned from Mid Staffs help us to think about how we might mind and fill the gap in this legislation.
Compliance without visibility is not protection, and this is precisely what we need to guard against. From a practical perspective, these amendments are straightforward. They would not impose a new burden on the doctors; the record is already required. They would ensure that the record is shared with the commissioner, who is already acting as the regulating authority. They would align responsibility with capability, visibility with compliance and safety with oversight.
In all legislation, let alone a Bill as consequential as this one, we want services that can be trusted. For that, we need systems that can be scrutinised. A regulator that cannot scrutinise the record cannot regulate the system. These simple amendments would correct that, and I commend them to the Committee.
Lord Empey (UUP)
My Lords, last Friday we were talking about communication difficulties, whether through hearing, language or something else. In that context, the noble Lord, Lord Rook, has done us a service by proposing his amendments to make it simple and clear. The reason why this is important is that the Bill is basically a series of stages. People at stage 2 need to know what occurred at stage 1 and so on down the line, and to be effective the oversight has to be made available.
I am not a medical person, although I have a family member who is a medical professional, but I have seen at first hand how things can change in a hospital setting where a patient may be in one condition one day and a different condition the next. That is why I think reporting and the availability of records are so important in assessing how safe the process is.
I raise this because, by definition, a person who is in hospital is probably going to be receiving medication or multiple medications, and drug-induced psychosis, delirium or hallucinatory states can happen. These are temporary and reversible conditions, but delirium is a bit like a thief in the night: it creeps up unannounced. It is there one minute and gone the next. Unless people have a consistent record of how the patient has been responding and how that patient is assessed and that record is passed down the line from one stage to another, it is going to be extremely difficult to see whether these things have been occurring. Delirium can be the reaction of an individual to various medications that they are receiving. It is a sudden and temporary state of acute confusion and altered mental function. It can develop in hours and can involve impaired attention, disorientation, hallucinations, rapid shifts between agitation and lethargy, inability to concentrate, emotional swings and distorted thinking.
The noble Baroness, Lady Grey-Thompson, said that perhaps her Amendment 214 is overprescriptive. Let us not argue about the minutiae, but the principle is that the material needs to be available not only to the professionals who are dealing with each stage. As the noble Lord, Lord Rook, has just told us, to be safe, somebody has to have oversight and the information.
Setting aside all the heavy-duty communication issues that we discussed last week, because a patient is in hospital the chances are that they are receiving significant amounts of very strong medication. I have seen with my own eyes that it can induce a situation of delirium just like that, which can then go away. It is temporary, so a person might be in one mood at the initial stage and in a different condition at the next stage. People have to see and know that, and it has to be recorded, because this is not just any old thing: this is a decision to end a life. To have some fundamental safety mechanisms, records have to be kept and they have to be shared. The noble Lord, Lord Rook, gave us an analysis of the Mid Staffs situation and, sadly, there have subsequently been others. They are not an unusual occurrence, so if there is anything we can do to alleviate or minimise that problem, let us do it. I see no reason why not.
I draw the attention of Members to the fact that these conditions occur in a hospital almost by definition, because of the patient’s receipt of very powerful medications. Therefore, we must consider the condition that a person might be in at the initial stage, bearing in mind that one of the conditions is distorted thinking. Let us make it safe, ensure that the records are kept and distributed, and ensure that those who need to see them get to see them.
Baroness Keeley (Lab)
My Lords, on the same principle of making it safe, I will speak to my Amendment 219, which would open an extra channel of communication. It would require the person’s GP to disclose relevant information about the person’s eligibility for assisted dying. That information would be disclosed, first, to the doctor who conducts the preliminary discussion; secondly, to the co-ordinating doctor making the assessment; and, thirdly, if the GP believes that the person may not be eligible, to the commissioner.
The principle behind the amendment is simple. The doctors and the panel need to be as informed as possible about the applicant in those circumstances. A GP may well have crucial information and, at the moment, the Bill does not give a clear opportunity for that information to be shared. The GP’s only role in the Bill, as has been said previously, is to receive notifications. As my noble and learned friend Lord Falconer put it,
“the GP, in the structure of the Bill, is not somebody who has to be involved … the GP is somebody who is receiving information”.—[Official Report, 12/12/25; col. 478.]
This seems to be a missed opportunity. It is not hard to think of cases where a GP might have relevant knowledge. There are instances of fluctuating capacity, where a GP might well know more about the person and their mental capacity than the assessing doctors and the panel. There are cases of coercion, where the assessing doctors might miss the signs. Where there is doubt over the person’s illness and their six-month prognosis, a GP’s input could be essential.
The Bill requires the assessing doctor to make such inquiries of professionals who are providing, or who have recently provided, health or social care to the person, as the assessing doctor considers appropriate, but that is quite a broad provision. Crucially, it is a one-way process. The assessing doctor can make an inquiry with a person’s GP, but the GP is not supposed to offer helpful information unless they are specifically asked for it. That seems an obvious gap.
In a previous group, we discussed amendments that would give a greater role to the GP, but those amendments were criticised as being unrealistic. This amendment, by contrast, would make a small change, which would enhance the protections already in the Bill.
The report of the Demos commission, chaired by my noble and learned friend, said that a key element in the assisted dying regime was
“a doctor who, where possible, knows the person well”.
That doctor could be the patient’s general practitioner. The Bill does not guarantee that, but my amendment would ensure that, if the GP has significant, first-hand knowledge, that knowledge will be taken into account and not overlooked.
Lord Harper (Con)
My Lords, I will be very brief. I will speak to my Amendments 354A and 432A, which are both about making sure that relevant information from the preliminary discussion is made available to the commissioner and the panel. The reason why I can be brief is that they are similar in what they are trying to achieve to the amendments tabled by the noble Lord, Lord Rook. He set out clearly the rationale for doing so, and I can simply agree with what he said in support of my amendments.
I will comment on the amendments in the names of the noble Lord, Lord Shinkwin, and the noble Baroness, Lady Grey-Thompson. The theme behind all of them is to ensure that there is timeliness in reporting and sufficient clarity about what is recorded to give people confidence that the process has been carried out properly. The noble and learned Lord, Lord Falconer, has been very clear that there is a clear process set out in the Bill, but it is important to give people confidence that it is documented, comprehensively and on a timely basis. There is clearly a debate to be had about being too specific about the timeframe or what is recorded. However, ensuring that there is sufficient detail, and that it is done sufficiently quickly, is important. I commend those other amendments to the Committee.
Lord Wolfson of Tredegar (Con)
My Lords, I hope the Committee will forgive my brevity—I will focus on the few amendments I have tabled in this group.
As the Committee has heard, many of the amendments relate to the preliminary discussion or to recording general medical information as the patient progresses through the procedure. However, as indicated by the noble Baroness, Lady Grey-Thompson, to whom I am grateful for her kind words, my amendments focus on a particular, very important issue.
My Amendments 562A, 563A and 564A seek to probe the circumstances in which it would be appropriate for a patient’s decision to cancel their first or second declaration not to be recorded immediately. There is a point of principle here. While I understand that there can be a genuine debate about whether a decision to initiate the procedure should be recorded and, if so, how quickly, I am concerned that a decision to pull out—which is what a decision to cancel is—whether after the first or second declaration, should not be left hanging there. I do not understand why that should be recorded only as soon as practicable and not immediately.
As the noble and learned Lord will be aware, and for the benefit of the Committee, “immediately” in English law generally means forthwith—as quickly as possible. You will not be in breach of the statute if you do not record it within three and a half seconds. The courts will always take circumstances and context into account. However, “immediately” gives that sense of urgency, which is very important. It is particularly important—this is why I tabled these amendments—when somebody is cancelling or pulling out. We must not have any risk whatsoever that another medical practitioner or healthcare professional might think that the person is still in the system, so to speak, when they have in fact cancelled their first or second declaration.
Also, without too much threshing through the undergrowth on a Friday afternoon—although it always is a Friday afternoon for this Bill—this is particularly important in Clause 24(3). Clause 24(2) deals with when
“the notice or indication … is given to a registered medical practitioner with the person’s GP practice”.
“Immediately” is appropriate there, for the reasons I have given. It is all the more important in Clause 24(3), where
“the registered medical practitioner to whom notice or indication of the cancellation is given”
is not within the practice. The problem there, as drafted, is that you have two uses of “as soon as practicable”. First, the practice must be notified “as soon as practicable”, and then the practitioner notified must “as soon as practicable” record the declaration. That doubling is problematic as well. “Immediately” in this circumstance ought to be the key test.
Therefore, I invite the noble and learned Lord, Lord Falconer of Thoroton, when he replies, to explain whether he believes, as I do, that the failure to record a declaration cancellation immediately might result in harm coming to a patient, and how, if not by way of my amendment, we mitigate that risk.
We are repeatedly told by the Ministers at the Dispatch Box that the focus of the Government’s position is whether this is workable or practicable. Have the Government looked at whether immediate recording is practicable? I would be interested in knowing the Minister’s thoughts and the Government’s position on that point.
Baroness Blake of Leeds (Lab)
My Lords, I thank noble Lords for an important and thoughtful debate this afternoon. As I have already made clear, I will limit my comments to amendments about which the Government have major legal, technical or operational workability concerns. I will speak first to Amendments 212, 215, 217, 218, 214, 557 to 559, 562, 563, and 564, tabled by the noble Baroness, Lady Grey-Thompson, which would introduce specified time limits for when duties in the Bill must be undertaken. Similarly, Amendments 212A, 212B, 215A, 217A, 218A, 218B, 320C and 321A, tabled by the noble Baroness, Lady Lawlor, specify a timeframe by which records of a person’s preliminary discussion and first assessment must be recorded in their medical notes.
As drafted, the Bill requires this information to be recorded “as soon as practicable”. As the Government have not developed a service delivery model, I cannot confirm that the timelines proposed in these amendments are workable. Amendments that change the duty to record information from “as soon as practicable” to “within 24 hours”, or that require the co-ordinating doctor to make a report on the same day they see the person, may result in a duty that is difficult or impossible to discharge. As drafted, these amendments may increase the risk of practitioners facing legal or professional action. For example, if they fail to comply with this mandatory duty due to being sick or on leave, the amendments do not afford any discretion or flexibility.
Amendment 219, tabled by my noble friend Lady Keeley, says:
“The registered medical practitioner with the person’s GP practice must disclose to the medical practitioner conducting the preliminary discussion any information in their possession that may affect the individual’s eligibility for assisted dying and such information must be taken into account by the co-ordinating doctor”
when undertaking the first assessment. Proposed new subsection (5) would require a registered medical practitioner with the person’s GP practice to notify the commissioner if they have
“reasonable grounds to believe that an individual does not meet the eligibility”
requirements for an assisted death.
The amendment is not clear on a number of key details, such as who in the GP practice is subject to these obligations, when the information must be sent, how the information is to get to the co-ordinating doctor for the first assessment, whether it is a continuing or a one-off obligation, and how the duty is intended to operate with Clause 31. This duty may also mandate information sharing with the commissioner in relation to people who are considered by a registered medical practitioner within a GP practice to not be suitable for an assisted death, even if the person in question is not actively seeking an assisted death under the Bill. My noble friend Lord Rook’s question about whether the powers in the Bill are sufficient for the commissioner, or whether further powers should be granted, is one for Parliament to decide in the eventuality.
Lastly, Amendment 561, tabled by the noble Baroness, Lady Grey-Thompson, would amend Clause 24 to require any preliminary discussion, first discussion and second declaration to be recorded in a person’s medical records, including the reason for not continuing to the next stage. It is not clear who must undertake these duties or what would happen if the person seeking assistance did not give a reason for why they did not wish to proceed. Where legislation seeks to impose a duty, it must specify who that duty is placed on. That is particularly important, given that an intentional or reckless failure to comply with the duty under Clause 24 is a criminal offence. The amendment would require further policy and legal work to clarify the intent and ensure that the drafting was workable.
Lord Falconer of Thoroton (Lab)
My Lords, these amendments concern the preliminary discussion and the timing of the recording not just of that discussion but of cancellations. They would raise obligations on GPs to provide information, and would provide the need to give the commissioner material so that he can properly perform his functions as, in effect, a regulator of the process.
I want to adopt what the noble Baroness, Lady Murphy, said. There needs to be some degree of understanding about Clause 5: it is a requirement that has to be gone through before one can have an assisted death. The effect of the clause is that there has to be a preliminary discussion. That discussion requires a doctor to go through with the patient their diagnosis and prognosis, any treatment available and its likely effect, and all appropriate palliative hospice or other care, including symptom management and psychological support, and to offer to refer them to a palliative care person, so that the patient has a balanced view about what their options are before they embark on the process of an assisted death. That means going through the safeguards. What is more, the Bill currently requires that that conversation is recorded as soon as practicable by the person with whom the patient has had that conversation.
That is the framework within which one looks at the amendments. The first proposal is from the noble Lord, Lord Shinkwin, who proposes that any conversation that a patient has with any doctor, whether the doctor raises an assisted death or the patient does so, should be treated as a preliminary discussion of the sort that I have just described, and that discussion must be recorded. I understand why the noble Lord has put that in but I do not think it is either appropriate or practical. There is the preliminary discussion requirement and the requirement that preliminary discussions be recorded because that is a safeguard. It should not stop any patient having a conversation, formal or informal, with their doctor in which they raise issues about their care. For example, they might want to say, “Tell me what you know about assisted dying”, or, “Have you ever seen one?” If you have that conversation, I think it should be recorded, but that does not make it a preliminary discussion. It can be before the process has started. So, although I understand why the noble Lord, Lord Shinkwin, has tabled the amendment, I am not minded to accept it because I do not think it is necessary, appropriate or practical.
The noble Baronesses, Lady Grey-Thompson and Lady Lawlor, wish—in relation primarily to the preliminary discussion but also to other areas—to reduce the words
“as soon as reasonably practicable”
to either immediately, within 24 hours, straight away, within seven days, and so on. Subject to the question of cancellation, where I think there is a different case, I am not in favour of changing the words
“as soon as reasonably practicable”.
That seems to be the appropriate test when you are recording something. It has to be looked at against the framework. It just does not seem appropriate to change that when we are dealing with doctors who will have other pressures on them, but I underline the importance of there being a record; hence the requirement for it be done
“as soon as reasonably practicable”.
The amendment from the noble Baroness, Lady Keeley, suggests that a GP has to give information to one or other of the assessing doctors. I assume it would apply right across the board, not just to the preliminary doctor but to the assessing doctor. As the noble Baroness, Lady Keeley, knows, there is a requirement in Clause 12 on both the independent and co-ordinating doctor to examine the person and their records, and to
“make such enquiries of professionals who are providing or have recently provided health or social care to the person as the assessing doctor considers appropriate”.
I have also tabled an amendment that reflects discussions we had earlier, which suggest that both those doctors should also talk to the multidisciplinary team responsible for the care of the patient to ensure they get the full amount of information available. I completely accept the underlying principle behind the amendment from the noble Baroness, Lady Keeley, but the steps which are mandated are probably enough.
The noble Lords, Lord Rook and Lord Harper, both want there to be a specific requirement for the preliminary discussion record to be given to the commissioner. Noble Lords will know that Clause 44 allows the Secretary of State to make regulations requiring any doctor involved to notify the commissioner of any part that they play and of any information. Noble Lords will know that, under Clause 49, the commissioner is under an obligation to
“monitor the operation of the Act”,
and that the obligations of confidence do not apply when providing information to the commissioner. I think those provisions are sufficient. I do not think the proposals that the noble Lords, Lord Harper and Lord Rook, have made are necessarily unreasonable, but it may be that the right approach for the commissioner to take is to decide which documentation he wants to have on a habitual basis. I completely accept what the noble Lords are saying, which is that the commissioner has to be in a position to perform his regulatory function, but it is probably for him to decide what documentation should come to him habitually. I do not think it is appropriate to amend the Bill in that respect.
Finally, I turn to the point made by the noble Lord, Lord Wolfson, and the noble Baroness, Lady Grey-Thompson. I note that the Minister said that there are no workability issues. I am struck by the argument that they both made, which was that this is obviously so important that if you give a cancellation then, to avoid any problem, it should be immediately notified. The noble Lord, Lord Wolfson, made a good point that there is a two-stage process before you get to it. I think I should consider that; it is an important amendment.
The Deputy Chairman of Committees (Baroness Barker) (LD)
My Lords, I remind the Committee that the noble Lord, Lord Shinkwin, is taking part remotely. I invite the noble Lord to reply to the debate.
Lord Shinkwin (Con) [V]
My Lords, I am mindful that noble Lords will be counting down the minutes to the start of a well-earned Easter Recess, so I will keep my remarks as short as I can. I hope I will be forgiven if I do not refer to individual contributions, but I was struck by the strong consensus that record keeping, as would be provided by the amendments in this group, is crucial—not just to engendering trust in the system but for providing for patient safety, especially as conditions towards the end of life will fluctuate, particularly in the case of delirium. I thank noble Lords for their contributions.
Although I disagree with the noble and learned Lord that it is not appropriate to report any discussions about assisted dying, I believe that keeping records on assisted dying is vital. I feel I must thank him, as something he said on 20 March—the 12th day in Committee—made the case for my Amendment 193 and the other amendments in this group perfectly.
Noble Lords may recall that the noble and learned Lord caused the House to be convulsed in laughter by a quip he made when my noble friend Lord Frost appeared in the Chamber after my noble friend Lord Gove had addressed the amendments in the name of the noble Lord, Lord Frost, in his unavoidable absence. According to parliamentlive.tv and the transcript that goes with it, at approximately 4.10 pm on 20 March, on seeing the noble Lord, Lord Frost, return to the Chamber, the noble and learned Lord quipped, “Sorry. Perhaps he shouldn’t have bothered”.
It was brilliant for a number of reasons: its timing, its spontaneity and, in particular, its piercing, if inadvertent, honesty. At a stroke, the noble and learned Lord exposed brilliantly—in the true sense of the word, of shining a light on something—his overall approach to dealing with 14 days of dismissing amendment after amendment and allowing Dignity in Dying and other supporters of the Bill to denigrate noble Lords’ carefully considered and well-intentioned attempts to mitigate the worst dangers posed by the Bill.
Noble Lords would to be forgiven for asking why this is relevant to today’s consideration of this group of amendments. The reason is this: the amendments we are discussing highlight the need for rigorous record-keeping at the preliminary discussion phase and, indeed, beyond, throughout the assisted dying process. Yet noble Lords may be interested to know that, despite it being clearly captured on parliamentlive.tv, both on screen and in the accompanying transcript, as I have already mentioned, there is no record of the noble and learned Lord’s quip in Hansard.
I mean no criticism of our wonderful Hansard team, but I find it rather odd that the official record should be inaccurate in this specific respect. I therefore hope it helps the House, and the noble and learned Lord, that his significant remarks to my noble friend Lord Frost—“Sorry. Perhaps he shouldn’t have bothered”—are now on the record in Hansard. The fact that they were omitted surely provides compelling evidence in support of rigorous record-keeping, as provided for in Amendment 193 and the other amendments in this group. I hope that we can all accept that there is no such thing as too much transparency when it comes to the matters of life and death that we are discussing in relation to the Bill.
In closing, I entirely endorse, as my noble friend Lady Fraser of Craigmaddie, did, the remarks of the noble and learned Baroness, Lady Scotland—that we all like each other a lot, and wish all noble Members a very happy Easter. I beg leave to withdraw the amendment.
Lord in Waiting/Government Whip (Lord Leong) (Lab)
My Lords, before I adjourn the House, I wish all noble Lords, clerks and doorkeepers a wonderful Recess.