Baroness Blake of Leeds
Main Page: Baroness Blake of Leeds (Labour - Life peer)(1 day, 10 hours ago)
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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.
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.