Lord Falconer of Thoroton
Main Page: Lord Falconer of Thoroton (Labour - Life peer)
Lord Empey (UUP)
My Lords, I wonder whether the proposer of these amendments, the noble Lord, Lord Birt, can tell us whether he has any indication from the relevant royal colleges that their members would be available for this service. The idea is that you will have senior clinicians on a 24-hour basis, 365 days per year. I wish our facilities had sufficient capacity, but it is nonsense; there is not the remotest possibility of the National Health Service and the relevant clinicians being available.
If I am wrong, and the noble Lord, Lord Birt, has an indication from them that their members will be available, the sooner we get that information here the better—but I just cannot see it. We cannot even deal with what we have at the moment, never mind adding to the burden.
On another issue, I must say to the noble and learned Lord, Lord Falconer, that it is 12.10 pm. By the time we finish this group, we will be at the lunch break. I have to say to him, as I said last week, that if we go on at the rate we are going, he is partly responsible. He needs to bring forward meaningful amendments, so that we can see the colour of his money now and not in weeks to come.
Lord Falconer of Thoroton (Lab)
We are debating other people’s amendments at the moment. This debate has ranged pretty far and wide. These are not my amendments; they raise three particular issues. First, should there be a new organisation, an assisted dying help service? Secondly, should we ensure a different and more expeditious series of arrangements than that put in my Bill? Thirdly, should the commissioner act only as a regulator? Those are the three essential parts. I think there is merit in much of what the noble Lord, Lord Birt, has said, but I am not in favour of an assisted dying help service. Further, my Bill sets out very detailed provisions for safeguards that are longer and less flexible than those proposed by the noble Lord, Lord Birt. As for the commissioner being solely a regulator, I am not in favour of that. I think we need a regulator and the CQC has been suggested in relation to that. That seems quite sensible. I simply say that we have ranged so far and wide that I am slightly miffed at the idea expressed by the noble Lord, Lord Empey, that I am detaining people from their lunch because we have had this long debate.
Lord Empey (UUP)
I have to say that that was not my intention—the noble and learned Lord knows that perfectly well. I raised the point merely to indicate the length of time that this is taking and that a lot of the proposals and amendments on the Marshalled List could be addressed if we had amendments put forward by the noble and learned Lord, which he indicated in an email last week would be forthcoming. They are not here.
Lord Gove (Con)
My Lords, I am wholly in agreement with the noble Lord, Lord Rooker, and my noble friend Lord Deben, that greater clarity, both from the promoter of the Bill and from the Front Bench, would assist the Committee in making sure its mind could be made up on these delicate issues.
The noble Lord, Lord Birt, used to be my boss when I was a junior journalist at the BBC; I owe him a great deal. In framing this amendment, he has shown that a fine line, by insisting on speed and precision, can show us just what expedited delivery of a public service can achieve. If only the skill with which the noble Lord, Lord Birt, has ensured that the ratchet moves forward at speed in this legislation had been applied, for example, to our planning system, or to any of the other areas where government is laggard and failing. As the noble Baroness, Lady Fox of Buckley, pointed out, if the same degree of precision had been applied to the operation of our courts and tribunals, we would not need to be contemplating the end of trial by jury.
However, in putting forward this proposition, I fear that the noble Lord, Lord Birt, is guilty of falling prey to two fallacies. The first is the Gadarene swine fallacy: the idea that, because so many are moving in one direction, we must follow expeditiously. He cited the fact that Jersey has voted for a form of assisted dying, and we are aware the debates are carrying on in Scotland and Wales. I shall not go into the devolutionary and union ramifications of those debates here—we will return to those later; they are critically important. But, as was pointed out by the noble Baroness, Lady Berridge, the arc of history does not bend in any one particular direction, and certainly not in the direction that the noble Lord, Lord Birt, wishes to see it bend. We have been reminded this week that Denmark can say no to being told what to do by others, not just in geopolitics but in other areas as well. What we can learn from Denmark, and indeed from the French Senate, is that the consideration of the detail of legislation matters.
The other fallacy which was inherent in his speech is the Robespierre fallacy: the belief that one can discern and interpret the general will and then push in a particular direction. As we have heard on the Floor of this House, opinion polling on the question of assisted dying gives us almost the conclusions that we might want to have. I was struck by the opinion polling cited in the British Medical Journal, cited by the noble Baroness, Lady Finlay, which pointed out that the majority of those asked, when they were compelled to share what they thought assisted dying meant, thought that it either meant the withdrawal of existing treatment at a particular point, at the request of the patient, or improved palliative care. Of course, the noble Lord, Lord Markham, cited other opinion polling as well, but the critical thing is that opinion polling points in different directions. It causes me concern. But it is the purpose of this House and the purpose of legislators here not to attempt to discern the general will and to enact it, but to look at specific legislation and to decide whether it is fit for purpose.
That takes me to another point about the assisted dying help service: a question for the promoter of this amendment, the noble Lord, Lord Birt, for the promoter of the Bill, the noble and learned Lord, Lord Falconer, and for the Front Bench. It is undoubtedly the case that, if the amendment standing in his name and the name of the noble Lord, Lord Pannick, were agreed, the process would accelerate, relative to that which is contained within the Bill. Yet, at the same time, it is the case that a new service is being set up, which, as a number of colleagues here have pointed out, might draw resources away from other aspects of the NHS. How is it possible that a service that is set up explicitly to accelerate, to be a concierge service in that way, will also attract, be staffed and operate in a way which ensures that at every point, objective, neutral, balanced advice is offered? Is it not in the very nature of this service that those staffing it—and one has to ask who would volunteer or would be paid for that role—would become engineers of a particular purpose? Is it not the case that those who would move towards recruitment in this area would be people who would be motivated I am sure from the best and most idealistic of motives, but those who would want to advance the path to death and accelerate suicide rather than incur reflection?
That takes me to a question for the noble and learned Lord, Lord Falconer, who might say that this is an amendment from the Back Benches, not something that he has been party to and that we as the Committee might consider it overall. He might well say that he has his own timetable in this legislation to which he is attached, which he would like us to pay particular attention to as we reflect on the Bill. But the question for the noble and learned Lord, Lord Falconer, is: if he could, would he back the amendment of the noble Lords, Lord Birt and Lord Pannick? Is he in sympathy with the desire to accelerate this process? It is not enough for him to say, “Look, I haven’t put this forward”. The key question is: if he is in sympathy, will he say so, and if not, why not? If he believes he is not in sympathy, is that because he thinks it is right that there should be appropriate, greater reflection, and that there is something momentous about this decision? Is it also right that he believes that this would mean a diversion of resources?
Lord Falconer of Thoroton (Lab)
I support the safeguards in my Bill, because I think they are the right safeguards. So, I do not support the proposals made. The Bill has got to be properly safeguarded, and my Bill gets the balance right.
Lord Gove (Con)
I am grateful to the promoter of the Bill for that, but that is a broad defence of the legislation as written and it takes us to the critical question for the Minister, which relates both to resource and timing.
The Government have committed additional money for palliative care, for hospices, which is welcome: £100 million for adult care in hospices; £80 million for children’s care in hospices. But those who lead the hospice service say that this additional money has already been swallowed up in additional costs. It does not augment palliative care. Yet, money is inevitably going to be diverted, if we pass the amendment of the noble Lord, Lord Pannick, and set this service up, as the promoter of the Bill acknowledges. Yet, as the noble Lord, Lord Stevens, has pointed out, we have not had from the Government any adequate response on what additional resource might be devoted to palliative care, despite the fact that we had a national report into end-of-life care, produced by Marie Curie Cancer Care and others, more than 15 months ago. There has been no adequate response to that report. As the former Prime Minister, Gordon Brown, has said, it is unconscionable that we should pass the Bill until we have had that response from the Government. It would be illuminating to know what the Government’s plans are on resources, not just if the amendment is passed but for care overall.
There is another responsibility on the Front Bench as well. Is it the case that, in the particular framing of the Bill we have in front of us, a future Government or Administration could create the service that the noble Lord, Lord Birt, wants by the simple assertion of a statutory instrument, 90 minutes’ debate, no proper vote and then, suddenly, the creation of exactly what the noble Lord, Lord Birt, wants with his assisted dying help service? It will not be good enough for Ministers once again to talk about studied neutrality and to canter through the speech that may have been written for them by diligent public servants in their own department. We need to know: if the Bill is passed, could it be the case that the service that the noble Lord, Lord Birt, wants could be created by statutory instrument without appropriate scrutiny? Because if the Bill does mean that, then what we know is that we are creating a Bill with holes, opportunities, lacunae, slippery slopes, whatever language you may wish to use—a Bill which is, in itself, unsafe.
Baroness Blake of Leeds (Lab)
I repeat that I am happy to write to noble Lords further on this point. I do not think that Members are going to move away from this point, so I am very happy to do that.
The noble Lord, Lord Gove, asked whether the assisted dying help service could be set up through statutory instrument, and I am happy to write to him to clarify that point. I will write to the noble Baroness, Lady Finlay, on the point of the constitution. That is the most straightforward way to deal with this.
With the undertaking that the Government will write on the points that have not been addressed, I hope noble Lords will understand that, on the areas that I have not raised, we cannot confirm that the amendments are workable. That is the point I must make. With those comments, I hope that the noble Lord will withdraw his amendment.
Lord Falconer of Thoroton (Lab)
I thank everybody who has contributed to this debate, in particular my noble friend Lady Blake, who ended up caught up in the eye of a storm that was not of her own making. I very much sympathise with her. I thank the noble Lord, Lord Kamall, for his mature and helpful interventions.
The amendments from the noble Lord, Lord Birt, would, as he said, effectively do three things. First, they would introduce a new organisation called the assisted dying help service that would be responsible for providing both the judgment and the navigation through the process of assisted dying. Secondly, they would give the assisted dying help service specific power and a timeline that is much shorter and more flexible than the one in the existing Bill. Thirdly, the noble Lord insisted that the commissioner not give guidance, provide leadership, collect information and make assessments as to what is going on. Instead, the commissioner would be solely a regulator, without monitoring and other functions.
As I have indicated, I do not support those amendments. In relation to the key point, the safeguards in the Bill at the moment, as the noble Lord indicated, consist of three doctors, including the preliminary doctor, the panel, the periods of reflection and the doctor who gives the assistance at the end having to be satisfied that all the requirements are still in place and operative. That structure is the one we support, and we stick by it, because we think it provides a safeguard. We are not in favour of changing that.
Separately, in relation to the assisted dying help service, I am strongly in favour of the basic principle outlined by Stephen Kinnock, when he gave evidence to the Lords Committee, and of the points made by the noble Lord, Lord Markham, and my noble friend Lady Blake. The Bill gives the Secretary of State the power to determine how it should be delivered. I accept that Clause 41, which was criticised by the deregulation committee in this House for being too vague, needs more detail. I said that I would come forward with more detail, so let me indicate what sort of detail, because people have indicated that they want that. I particularly isolate the noble Lord, Lord Goodman, whose speech was effective in that respect.
It will name as the possible commissioners ICBs, the National Health Service England—which I appreciate is itself in a terminal condition and will shortly be abolished, but it has to be kept there—or the Secretary of State. Picking up the regulation point, it will specify that the services will have to be regulated by either NHSE or the CQC. It will specifically impose duties that currently reside with the NHS commissioners on the people who can make the commission. It will indicate the principles that the Secretary of State has to provide in doing the commissioning and it will limit the Henry VIII power in Clause 41(6), which is currently very wide and, as the deregulation committee said, needs to be limited. We will make considerable progress on that. I apologise for that not being available at the moment, but there are a number of amendments to be dealt with. I hope that is helpful. That deals with the essence of the points that have been made.
The points made by the noble Lord, Lord Harper, and the noble Baroness, Lady Coffey, were in effect about the problems with the amendment from the noble Lord, Lord Birt. Because I do not support that amendment, it would be otiose and time wasting for me to go through them.
I will deal with two other points: how much it is going to cost and where it is going to come from. There is an impact assessment that, as the noble Lord, Lord Markham, said, suggests that in year 10 the annual cost will be something under £30 million. It is ridiculous to suggest where that money is going to come from in 10 years. The noble Lord, Lord Deben, says that we need to know where the money is going to come from and how much it is going to cost.
The noble Baroness, Lady Grey-Thompson, says that maybe the money will come from somewhere else. The noble Baroness criticises the impact assessment because she says it is based on Oregon, not on greater experience. If the Government take the view that they cannot rely on the impact assessment for the points that she makes—it is not a promoter view; it is a government view—then no doubt the Government will have to make a decision about whether they need a new impact assessment. For my part, the impact assessment looks careful and rigorous. When we make the decision about assisted dying, we know how much it will cost on the basis of the impact assessment. We have to make a decision as a Parliament as to whether, in the light of that cost, we think it should go ahead. It is true to say that it is a very small part—a tiny part—of the total budget for the NHS.
Lord Stevens of Birmingham (CB)
On that very point, the noble and learned Lord’s Bill, at Clause 41(4), does indeed propose that an interpretation will be imposed on Section 1(1) of the 2006 Act, suggesting that he thinks there is some ambiguity on that point. As to the question about withdrawing care from an MND patient, surely the distinction between an act and an omission—the ability for somebody to choose to decline treatment—is a well-understood principle that has no bearing on the question of an assisted death.
Lord Falconer of Thoroton (Lab)
They are fundamentally different, but the idea that removing the respiratory equipment does not involve some acts is not realistic. But I completely accept the proposition that they are different. On the legal point, there is some ambiguity about what the section means and whether it needs to be changed, but I am making it absolutely clear that, from my point of view and that of the promoters of the Bill, it is most certainly not outside the broader founding principles of the NHS.
Lord Deben (Con)
I accept that very much from the noble and learned Lord. The question I asked, because I think it important, is for the Government to say what the legal situation is, which they have a duty to tell us before we can make the decision. I entirely accept what the noble and learned Lord said about his own position, but this is a question for the Government, if they are independent of this. They have a duty to provide information to the House before we can make these decisions.
Lord Falconer of Thoroton (Lab)
The broader question of whether this contributes to healthcare is for each of us to make our own judgment about. If noble Lords take the view—I am talking not about the legal issue but the broader issue—that this is wrong and contrary to the basic founding principles of the NHS, they can vote against the Bill. But if Parliament passes the Bill and says, “We are happy that that is the position”, it is saying that it is an acceptable part of healthcare.
Lord Deben (Con)
The noble and learned Lord really must accept that there is a problem with this being a Private Member’s Bill. He can say what he likes about the Bill, and I acknowledge and accept his absolute honesty about it, but the Government have the role of informing the House. Indeed, they do it: every time we have a debate, the Minister gets up and says that this or that would be difficult or awkward, or would be contrary to the European Court of Human Rights. I am only asking that they do that job on this. Is what is being proposed contrary to the founding position? Would the law have to be changed? It is up to the Government to tell us. We can then decide whether that matters.
Lord Falconer of Thoroton (Lab)
It is for Parliament to decide whether it is willing to pass the Bill. If Parliament is willing to pass the Bill, there may be the need for the legal change that the noble Lord, Lord Stevens, referred to. Whether or not you are willing to make the change is, for the reason I have said, a matter of what you think is the principle. Those are the only remarks that I need to make in relation to that, and I invite the noble Lord to withdraw his amendment.
Baroness Berridge (Con)
There will later be a group of amendments that relate to freedom of conscience. The noble and learned Lord has outlined another group of people in response to solving the issue from the Delegated Powers Committee around commissioners and NHS England. At this stage, in an effort to use our time efficiently, will he think about how wide the conscience clause will need to be to include people who have objections to this—it is not just clinicians; it may be those who do not want to be involved in commissioning these services—so that we do not end up with a huge group later in Committee?
Lord Falconer of Thoroton (Lab)
I will certainly think about it. I am not quite sure what the noble Baroness is asking, but whatever it is, I will try to co-operate as much as possible.
Lord Gove (Con)
The noble and learned Lord made it clear that he felt that there needed to be further clarity in the Bill following the point made by my noble friend Lord Goodman about who would eventually provide the service. Is it the case that he believes that the Bill, as written currently, would allow the Government to create an assisted dying help service by means of statutory instrument?
Lord Falconer of Thoroton (Lab)
I expect that it would not, but I cannot give a definitive view in relation to that. The reason I responded to the noble Lord, Lord Goodman, in the way that I did is because I have already committed myself, in the light of the Delegated Powers Committee’s report, to limit the scope of Clause 41.
Lord Gove (Con)
I am very grateful. I note that the noble and learned Lord says he suspects that it would not. It might be of assistance, certainly to me if to no one else, if he, and indeed the Minister, could let me know, with greater clarity, whether or not my concerns can be addressed with a greater degree of certainty.
Lord Birt (CB)
My Lords, I will try not to keep us too long from our lunch. This has been a lively and helpful debate, and I think it has exposed a fair number of critical issues that are yet to be resolved.
My past has caught up with me in this debate. How many people here knew that I used to be the boss of the noble Lord, Lord Gove? It was not my fault. He was a genuinely distinguished young BBC journalist, in all seriousness, and hugely admired by his colleagues. The debate has also revealed that the noble Baroness, Lady Coffey, and I went to the same north Liverpool grammar school, so anybody who objects to anything that she or I put forward can blame the Irish Christian Brothers.
I cannot possibly deal in any detail—and noble Lords would not want me to—with the many points raised over the past three hours. I approached the construction of these amendments, with the noble Lord, Lord Pannick, with a truly open mind, and I retain an open mind. The Chief Whip often tells us that his door is always open. My door is always open—not that there is one, because I do not have a proper office—and I am completely open to discussing any issue that has been raised. I am sure that the noble Lord, Lord Pannick, and I will wish to return to these matters when we come to Report.
I will just say a few things now. I approached the Australian practitioners with a completely open mind. I was in favour of assisted dying but I wanted to understand what real-life experience was like. I am very data-driven, as the noble Lord, Lord Markham, has often pointed out, and wanted to immerse myself in the Australian data. It was my learning, and then discussions with the noble Lord, Lord Pannick, that caused us to frame our amendments in the way we did.
The central thing that emerged from those discussions, which has been lost in our debate so far, is that, actually, people are not coming forward. They already have palliative care. Their pain is more or less controlled. The central point that the Australian practitioners wanted to get across to me, over and again, was that this is about misery, and people running out of time and wanting to end their life. Hence the key Australian data I shared was that, roughly speaking, 25% of people who come forward for assisted death die within nine days.
That is why I told the Committee about the Nicholas Dimbleby experience, because I thought that was indicative of the kind of people who want it. It is at the end of a very painful, prolonged process of suffering that people want an expeditious end. That is why the noble Lord, Lord Pannick, and I have sought to retain the process that is in the Bill but tried to make it more flexible, to deal with what can be genuine emergencies. And it is an emergency. There is a part of the National Health Service that deals with emergencies on Christmas Day—it is called A&E. We are talking about a service that will deal with genuine emergencies.
Lord Blencathra (Con)
My Lords, I will move my Amendment 39A and speak to my Amendments 238B and 553G. The purpose of Amendment 39A is to require that the patient’s understanding is demonstrable, not assumed.
Before I continue, I wish to thank the Chief Whip for his very wise decision to have a 40-minute lunch break but, as the average age of this House is 71, it was more like a loo break. It was very convenient, whatever it was. I move on to the subject of the amendment.
This amendment goes to the heart of autonomy. The Bill repeatedly invokes autonomy as its moral foundation, yet it does not require that the patient’s understanding be demonstrated. In every other area of medicine, informed consent requires evidence that the patient has actually understood the information. Here, where the outcome is irreversible, the evidential threshold should be higher, not lower.
The Bill currently requires doctors to “explain” and “discuss” certain matters, but it nowhere requires confirmation that the patient has absorbed or understood them. That is a fundamental flaw. NICE guidance, GMC guidance and the Montgomery judgment all emphasise that consent is valid only when the patient understands material risks, uncertainties and alternatives. The Bill omits these requirements.
International comparators—Oregon, California and Victoria—all require explicit discussion of risks and complications. England and Wales would be an outlier if we did not require demonstrable understanding. This amendment simply aligns the Bill with established medical ethics and legal precedent.
My final point on this amendment is that it protects clinicians. Without a demonstrable understanding requirement, a doctor could comply with the Act while failing to meet professional standards. That is a recipe for litigation, confusion and moral hazard.
My Amendment 238B would introduce a safeguard that is standard in every jurisdiction where assisted suicide is legal. A written acknowledgement would ensure that the patient has been informed of the risks— including prolonged dying, vomiting, seizure or failure of the drugs—and that they understand them. Without this, the Bill creates a parallel medical system where the usual rules of consent simply do not apply.
The Bill currently requires doctors to discuss
“the nature of the substance”
and what to do in the event of “complications”, but it does not require doctors to explain that complications may occur or what they are. That is a glaring omission. A patient cannot meaningfully consent to a life-ending drug without knowing that it may not work as intended.
Those noble Lords who have experienced cancer treatment or chemotherapy know that, before one gets it, one has to spend about an hour with a clinician or the oncologist ticking boxes on a form, explaining and saying that they understand all the potential downsides. I recall having to complete a seven-page form to do so. It is important that patients consent.
This amendment would also protect clinicians. The Bill grants civil liability exemptions for doctors acting in good faith but, without a written acknowledgement, there is no evidential record that the patient was informed of the risks. This exposes clinicians to professional risk and undermines public trust. Finally, this amendment is modest, proportionate and entirely consistent with the principle of autonomy.
I turn to my Amendment 553G, which is a Montgomery compliance clause. It would require doctors to apply the principles of Montgomery v Lanarkshire when informing patients of material risks. The amendment would embed that leading case on informed consent into the Bill. Montgomery requires doctors to inform patients of material risks and reasonable alternatives. The Bill does not currently require this. That omission is extraordinary in a process that ends in death. Without this amendment, the Bill creates a parallel medical system where the usual rules of consent do not apply. That is ethically indefensible. If anything, the standard should be higher than in ordinary medicine, not lower. This amendment would also protect clinicians by ensuring they are not forced to choose between complying with the Act and complying with their professional obligations. Finally, I believe that this amendment would align the Bill with international best practice.
These three amendments together would make the policy clearer, leaner and fairer. By tightening rules and strengthening enforcement, amendment 1 would remove ambiguity and speed decisions, reducing disputes and legal exposure. My amendment 2 would lower operational friction and cost by streamlining processes and clarifying responsibilities, which would improve efficiency and predictability during implementation. My third amendment would enhance fairness and future readiness by embedding equitable principles and scalable mechanisms, increasing stakeholder buy-in and adaptability as circumstances evolve. The result would be a more enforceable, cost-effective framework that better serves stakeholders today while remaining flexible for tomorrow. These amendments are practical, complementary—
Lord Falconer of Thoroton (Lab)
The noble Lord referred to amendment 1, amendment 2 and amendment 3. I apologise, but I did not know which his amendment 2 was.
Lord Blencathra (Con)
I realise that I should not have said that. When I spoke to my amendment 1, I meant Amendment 39A. I shall rephrase that: my Amendment 39A would remove ambiguity and speed decisions; my Amendment 238B would lower operational friction and costs by streamlining processes; and my Amendment 553G would enhance fairness and future readiness by embedding equitable principles and scalable mechanisms, et cetera. I believe that those three amendments would result in a more enforceable, cost-effective framework that would better serve stakeholders today while remaining flexible for tomorrow. The amendments are practical, complementary and strategically aligned to deliver measurable improvements in performance, compliance and stakeholder confidence. I commend them to the Committee and to the noble and learned Lord, Lord Falconer of Thoroton. I beg to move.
Lord Empey (UUP)
My Lords, there are some amendments in a later group—the 50th group—on this subject of approved substances and their regulation.
As the noble Baroness, Lady Hollins, pointed out, if you buy a packet of aspirin, you get a sheet that gives you the different risk levels. What I would like to know from the Government is: what will be done to ascertain how this list of approved substances is compiled? We know from examples given earlier today that, sometimes, things go wrong. When you go through any medical procedure, you are always asked to sign a piece of paper asking whether you consent: quite often, you are practically on the slab when you are asked to sign it.
The point I am getting at is: have we done any homework on what these substances should be? Have we analysed internationally how they have interacted in circumstances where assisted suicide is being promoted or is available? Do we have any of that information? We know, as has been mentioned, of circumstances in which executions have been carried out in certain American states, and even there, where multiple substances have been used with one purpose, sometimes it does not work out. We know that that is the case, and I cannot think of anything worse if we go down this track.
Although the promoter of the Bill has made his position clear, this is a matter for the Government as well. The Government have to tell us whether they have done any meaningful research. What is the legal framework? How will these substances be handled, bearing in mind that they will be going all over the country? They will not be going just to a single place. Pharmacies throughout the hospital system are very pressurised environments. Staff will have to be retrained. Given the nature of these substances, special procedures will have to be employed in practically every pharmacy in the United Kingdom where they will be required; I should say that, by “pharmacy”, I mean a hospital pharmacy.
I fear that this is another example of something that is half-baked; it is not worked out, researched or available. We have blank spaces around these lethal substances, and we are asking: what are they? All the questions—
Lord Falconer of Thoroton (Lab)
I apologise for interrupting. In group 50, we will deal with the process of the selection, approval and regulation of substances. In this group, we are dealing with making sure that the patient is properly informed before they make the decision. Many of the questions that the noble Lord raises about how we are going to choose the substances are perfectly valid, but I suggest that we deal with them under group 50.
Lord Empey (UUP)
As I said when I opened my remarks, I have amendments in group 50 for that purpose, but there is an inextricable link between having knowledge about these substances and having informed consent, so we cannot compartmentalise it as easily as that. The people who are overseeing the consent of the person must also have that knowledge. The risk factors have to be made available to the patient: that is my point. Because there has not been sufficient research done on these matters, I am not convinced at this stage that the information being provided to the patient is accurate. How can it be if the research has not been done?
Lord Katz (Lab)
To repeat—and I hope this helps—the Government do not see any major workability concerns. Our concern is specifically with the drafting, in that it uses different language from language that already exists in the Bill. We feel there is a risk of duplicating existing requirements in Clause 12 for the assessing doctor to explain and discuss with the person what approved substance would be provided and how it would bring about death. There could be the risk of that duplication, but there are no major workability issues.
Lord Falconer of Thoroton (Lab)
My Lords, I thank everybody who has taken part in this interesting and important debate. The amendments fall into four categories, all of which overlap. The first category is the amendments from the noble Lord, Lord Blencathra, which say that the patient has to have demonstrably understood the information about diagnosis, prognosis, treatment and the drugs that will be prescribed. The noble Baroness, Lady Coffey, says that “demonstrably” should be put before “informed”. She also seeks to insert into the Bill what is regarded as the Montgomery v Lancashire test from the Supreme Court—that is the third one. The fourth is that a number of noble Baronesses and noble Lords have indicated that they want to be absolutely clear that the patient is properly informed of the effect of the drugs, any side-effects, any complications and what is going to happen.
I have thought very carefully, listening to the debate, whether one needs to make any changes to the Bill in order properly to reflect that the patient has to be properly informed before they make their decision. There is absolutely no doubt on anybody’s part in the course of this debate that, before any decision is made, the person has to be properly informed, and that means they have to be properly informed on prognosis, diagnosis, palliative care options and what the effect will be of the drug being administered, including side-effects, complications and what may happen in relation to complications.
As far as the Bill is concerned at the moment, Clause 1(2) says that steps need
“to be taken to establish that the person … has a clear, settled and informed wish to end their own life”.
“Informed” there plainly has a meaning well acquainted to the law: that they know enough material to be able to take the decision. Enough material to take the decision in relation to prognosis and diagnosis would need to involve knowing what the level of certainty of the diagnosis is, what possible steps could be taken to alleviate the position and the various risks in relation to that, the effect of the drugs on me physiologically—the lethal drugs, if I choose to have an assisted death—what the risk of complications is and what would happen if I got complications. Without that material, it would not be “informed”. That reference to “clear, settled and informed” is then repeated four times, significantly, throughout the Bill.
First of all, in Clause 10(2), the first doctor has to be satisfied that the person has a clear, settled and informed wish to end their life. Secondly, the second doctor has to be satisfied that the patient has a clear, settled and informed wish. Thirdly, the panel has to be satisfied that the person has a clear, settled and informed wish. Fourthly, at the point that the assistance is given, the provider of the assistance, the co-ordinating doctor, must be satisfied at the time the approved substance is provided that the person has a clear, settled and informed wish to end their own life.
Baroness Berridge (Con)
I made precisely this point, not about the information that is provided but about how people are getting their information, and about misinformation. We are beginning to hear of cases of ChatGPT potentially suggesting that a young person take their own life. Informed consent as the noble and learned Lord described is very much in the classical sense, as I learned. The point I made is about dealing with misinformation and malinformation. What is the duty now? I invite the noble and learned Lord to write to me, but I think—I hope—it is a developing area of law.
Lord Falconer of Thoroton (Lab)
I apologise; I should have answered that request. I do not want to write; I want to tell the noble Baroness the answer now. The Bill, in the places that I have indicated, says that the panel, the two doctors and the assisting doctor must be satisfied that the consent is informed. If the position is that the person who wants the assistance, or is about to get the assistance, is misinformed in the way that the noble Baroness described, that would not be informed consent. For example, having been subject to digital information that is completely wrong or misleading in what it says would not be informed consent. As time goes on, no doubt doctors and others who have to satisfy themselves that the consent is informed will have to take steps to ensure that the patient’s understanding is right.
This goes to what the noble Baroness, Lady Finlay, said. Sometimes, people do not take in what you are saying. Some people take in the wrong thing. Other people are, in the back of their mind—you cannot know this—thinking of something that is completely wrong. It is for the doctor or the panel in every case to satisfy themselves. It is explicit in the Bill that consent must be informed.
Lord Deben (Con)
To clarify one issue, the noble Lord, Lord Wolfson, suggested that the Government should answer the question about whether they believe that these circumstances are covered. The government spokesman kindly passed it back to the noble and learned Lord, the proposer of the Bill. Could he please explain why it would not be sensible to put in the Bill precisely what would normally be expected of the doctor? This is merely because we would be much happier if that were there, and it would take it away from the problem the Minister does not want to touch himself, in case in some way he gets infected by not being independent. Why can he not just accept that, if what he says is true, putting it in the Bill does not alter it but makes people much more secure?
Lord Falconer of Thoroton (Lab)
I listened very carefully to that. I indicated previously, in relation to powers of attorney, for example, that it would be worth putting it in. First, I am not sure what “it” is. Secondly, “it” is there: the key is the words “informed consent”, which nobody has any difficulty in understanding. It may have a particular implication in a particular case, and you have to give people flexibility in relation to what they say, because it will depend on the circumstances. If I knew what “it” was, I would put it in, but it is just not that simple.
Lord Mawson (CB)
My Lords, I said to the noble and learned Lord earlier that in some ways, this feels—from where I have spent a lot of my life, in the East End of London—like quite a white, middle-class conversation. Where I spend my life, one is dealing with every nationality on earth, often with lots of people whose grasp of English, in communication and really understanding what they are saying to each other, is quite complicated. I am just trying—because I am a practical person—to understand how this will work in practice. How will one ensure that, with the panel and the doctors, you will have in that process the people with the language and other capabilities and skills to really know what informed consent is? How much will it cost to ensure that all those elements are in this process?
Lord Falconer of Thoroton (Lab)
The noble Lord makes a good point: how do you, in dealing with a wide range of cultures, establish that it is the informed wish of the individual that they want an assisted death? You cannot prescribe in a Bill how you would do it in every case, but there is absolutely no doubt, as far as the Bill is concerned, that the establishment of that informed wish is the basic foundation before you get there. Therefore, in each case, if it involves a different culture or a different language, that must be gone through before you can be satisfied.
Lord Carter of Haslemere (CB)
I am very grateful to the noble and learned Lord for his explanation of informed consent. There is a little doubt as to whether giving people lots of information, leading to an informed wish, actually encapsulates them fully understanding it. I was wondering: is the answer to this not to put in a definition of informed consent? Would that not be sensible? Then it is there in black and white. I have it here—AI is very helpful sometimes, is it not? “Informed consent is a process where a person voluntarily agrees to medical treatment, research, or a procedure after receiving and understanding all relevant information, including risks, benefits, alternatives and consequences, and they have a capacity to decide and are free from pressure”. There is a beautiful little definition that you could put straight into the definition section, and everyone would be happy.
Lord Falconer of Thoroton (Lab)
I thought carefully about that. The language concerns whether it is the person’s clear, settled and informed wish. Interestingly, the law—the Supreme Court—over a period of years constantly changes what in individual cases informed consent, or informed wish, as it is in the Bill, might be. The essence of the word “informed” is that you have enough material to make the decision. I hear what the noble Lord, Lord Carter, says, and I see what AI says about it, but I think it is better just to say, “informed wish”.
Lord Carlile of Berriew (CB)
I apologise to the noble Lord, Lord Carter; I did not see him behind me. The noble and learned Lord, Lord Falconer, has been using the phrase “informed consent”—
Lord Carlile of Berriew (CB)
The noble and learned Lord has been using the phrases “informed consent” and “informed wish” as though they are definitely synonyms. I just wonder why we do not se “consent” with “informed” next to it in the Bill because, as the noble and learned Lord has let slip, informed consent is a well-understood concept. Putting it in the Bill would take away most of the doubts that some of us have expressed. What is the problem?
Lord Falconer of Thoroton (Lab)
The format of the Bill asks: “Is it your wish to receive assistance?” It has to be an informed wish. It seems to me that there is no need to add in another concept—that of informed consent —when we have “informed wish”, which is perfectly adequate.
Baroness Finlay of Llandaff (CB)
The noble and learned Lord has not responded to the question of what the doctor does if the patient develops the complication of not dying. The patient may begin to reawaken, but it is not clear at all what should happen if they say, “I want you to suffocate me. I want you to inject me with lethal drugs. I want you to force me to reingest”, or whatever. What is the doctor to do? The Bill requires the doctor to be present until either death occurs, the patient changes their mind or the procedure fails. So it would be helpful to make it clear that, in the event of a complication, the doctor is just to stand back and let things happen, because any intervention, such as clearing the patient’s airway when they are vomiting, would in fact be a resuscitative intervention.
Lord Falconer of Thoroton (Lab)
First, the noble Baroness is absolutely right when she says that, at that stage, no step can be taken by the doctor to kill the patient, as it were, because this is about the patient doing it. They will have to discuss it, and a whole variety of measures could be taken by a doctor in the face of complications. It is impossible for me to indicate in relation to every complication but, pursuant to Clause 12(2)(d), that is what must be discussed with the patient—subject to the important point, on which we both agree, that the doctor cannot kill.
Baroness Lawlor (Con)
What would happen if they were taken to court in a medical negligence case? Let us take the example given by the noble Lord, Lord Mawson, where they had not explained graphically to someone who may not speak or understand English what could happen if there were a complication, but a graphic explanation was needed; otherwise, they might have failed medically to do their job.
Lord Falconer of Thoroton (Lab)
If they failed medically to do their job, they might be liable to a civil suit, but it is impossible to answer that question without specific facts. This Bill is placing on doctors and panels the duty to make sure that the consent to assisted dying is properly informed. If a doctor fails in that respect, you might have a situation where, for example, the thing should not have been done in the first place or was done inadequately. That might give rise to a civil suit but it does not really go to the question of whether we need to put a heavier burden, in terms of giving information, in the Bill; with respect, I think that the burden in the Bill is sufficient.
Baroness Coffey (Con)
May I see whether the noble and learned Lord can give me an answer on the idea of having the principles in the GMC guidance? They have come in only as a result of the Montgomery ruling in the court.
Lord Falconer of Thoroton (Lab)
On the first point—the reference to the immunity in respect of civil suit—I will check this but I think the immunity is with respect to criminal proceedings.
I was so distracted by the penetrating question from the noble Baroness, Lady Berridge, that I did not quite take in the question from the noble Baroness, Lady Coffey. If she would be willing to repeat it, I would be very grateful.
Baroness Coffey (Con)
I was cutting across, perhaps. I think the noble and learned Lord recognised my concern, in Amendment 188A, that I wanted stuff that is in case law now to be firmly included in the Bill, because, as I pointed out to the Committee in response to somebody else, the GMC guidance changed only as a consequence of that ruling. For me, that is really important to how we make sure that patients are at the heart of this.
Lord Falconer of Thoroton (Lab)
The guidance that was given changed in the light of the Montgomery case. I envisage that the GMC guidance would be of some significance and would change from time to time as people’s concepts change.
On the question from the noble Baroness, Lady Berridge, it is Clause 32 and it is about criminal liability.
Baroness O’Loan (CB)
I want to be really clear about this, because it is so fundamental and so important. The noble and learned Lord just described Clause 12(2)(c). Sub-paragraphs (i) to (iii) are not relevant to this discussion, but sub-paragraph (iv) and paragraph (d) are. They require three pieces of information in order to enable an informed wish:
“the nature of the substance … how it will bring about death and how it will be administered”,
and the person’s
“wishes in the event of complications”.
It does not require communication of what the complications might be. I simply ask him: why will he not put in the Bill a requirement to explain the complications?
Lord Falconer of Thoroton (Lab)
My answer to that—because the answer I gave in my long and tedious speech was obviously inadequate—was that to be properly informed, you would have to say what the effect of the drugs and what the complications would be. That comes from the word “informed”. If there could be any doubt about that, the fact that you have to discuss how, physiologically, it brings about the death and you need to discuss what happens in relation to the complications puts that beyond doubt.
I will just go back to the question from the noble Baroness, Lady Berridge. It is Clause 33, not Clause 32, which is the civil liability for providing assistance. That provides that if it is done in accordance with the Act then there is no civil liability, but it needs to be done in accordance with the Act, which means it has to be the informed wish.
Lord Stevens of Birmingham (CB)
Could I pursue that point and connect it with the question from the noble Baroness, Lady Finlay? It is very important that we clarify this for the benefit of the medical profession. Clause 33(2)(b), which covers civil liability, says that the civil liability exemptions are not available to a doctor
“in tort arising from a breach of a duty of care owed to a person”.
In the scenario described by the noble Baroness, Lady Finlay, what is the duty of care that the doctor owes the patient who has just not died?
Lord Falconer of Thoroton (Lab)
I am not sure whether the noble Lord is asking that in the context of giving information or of doing it negligently. The effect of Clause 33(2) is that nothing prevents the obligation on the doctor to act with reasonable care towards the patient. If, carelessly, the doctor failed to set out all the risks or maladministered the assistance, either the patient or the estate of the patient would have a claim against that doctor for negligence. There might be a dependency claim as well.
Lord Wolfson of Tredegar (Con)
I am sorry, but I think the noble and learned Lord has not quite picked up the noble Lord’s point. Of course, if the doctor does not explain it properly, or if the doctor maladministers the drug, there is liability in tort. As I understood the point being put, the doctor has explained it properly and the patient has administered the drug properly under supervision, but the patient has not died and is writhing around, for example. What is the doctor then meant to do, consistent with their duty of care to the patient? As I understand it, that is the question. I do not know the answer, but that, I think, at least is the question.
Lord Falconer of Thoroton (Lab)
In response to the question from the noble Baroness, Lady Finlay, regarding the complications, that has to be agreed in advance. I did not think that that was the question from the noble Lord, Lord Stevens.
Lord Falconer of Thoroton (Lab)
The doctor has to take reasonable care at that point. They cannot do anything to kill the patient, so they have to provide reasonable treatment to save the patient’s life at that point.
Baroness Finlay of Llandaff (CB)
I seek a little more clarification. The noble and learned Lord just said that the doctor should act in a way to save the patient’s life. In that case, if the patient takes their lethal drugs and does not die, the doctor then stands back, lets them wake up, lets them vomit and tries to stop them fitting or clears the airway. But that has to be explicit in the Bill, so that there is no misunderstanding at all that there is any circumstance in which the doctor can then proceed to top up or further inject lethal drugs. In other countries, that is what happens if the patient has not died. Here we are talking about it being self-administered by the patient.
Lord Falconer of Thoroton (Lab)
I think that this is absolutely clear in the Bill. Self-administration is what is required. We are discussing how to deal with complications, including whether or not the patient wants some sort of non-intervention, which is perfectly possible. If it is not specifically agreed, and the patient is suffering in some way, the role of the doctor is to save their life, because the doctor cannot kill. I do not think that there is any doubt about that position in the Bill. I do not think that this is properly covered by the terms of this amendment—I will look at it again—and so I do not think that any further change is required.
Lord Harper (Con)
I again apologise for not being a lawyer. I listened to this very carefully. I think there is a big gap here. The noble and learned Lord talked about the doctor, in effect, giving treatment to save the patient’s life. If the patient has expressed a clear and informed wish to die—I think this is the question that the noble Lord, Lord Stevens, asked—does the doctor owe a duty of care then to save the patient’s life? I do not think that that is clear at all. Doctors, I think, are asking what it is they are supposed to do. If they do not do anything and the patient dies and then it is found that they should have done something, that is incredibly serious. Doctors are asking for it to be put beyond doubt what they should do in those circumstances.
Lord Falconer of Thoroton (Lab)
First of all, there is absolutely no need to apologise for not being a lawyer; some of my best friends are non-lawyers. Secondly, this very thing was very closely considered, hence the provision in the Bill to say that, if there are complications, let us try to agree in advance what we should do. We will not, I am sure, be able to cover every complication, hence the questions from the noble Baroness, Lady Finlay, and the noble Lord, Lord Stevens. The answer is clear and beyond doubt—hence the reference to the need to address the question of complications—that the doctor should do what the doctor is always obliged to do, which is to save life.
Lord Moore of Etchingham (Non-Afl)
Forgive me if I have misunderstood the noble and learned Lord, but what about the situation in which the patient does not die, is conscious and says, “I still want to die”? What is the doctor supposed to do at that point?
Lord Falconer of Thoroton (Lab)
The doctor cannot administer a substance. It has to be done by the patient, because the doctor has no right to kill. If the patient is saying, “No intervention”, then there will be no intervention at that particular point. The key thing about this is that it is assisting somebody to take their own life.
Lord Moore of Etchingham (Non-Afl)
The patient could say, if capable of action after having woken up from taking the poison, “I want more poison, give me some”. If that happened, what would the doctor’s duty be?
Lord Falconer of Thoroton (Lab)
If the person said, “I will take more poison”, then the person can do that. It is perfectly permissible.
Baroness O'Loan (CB)
Can I ask a question before the noble Lord sits down—eventually? There is a clause—I apologise, but I cannot remember which one it is—that says that if the patient cannot administer, push or whatever the substance, then the doctor can assist. If the patient comes around and is fitting, and has said that they want to die, is the doctor supposed to put their thumb on the switch or whatever it is and push it to make them take it themselves? It seems so uncertain what the obligation of the doctor is. For the people watching outside, this must be horrific. We are thinking about people coming round—we know there is a significant risk of them coming around—and we are not telling doctors in the Bill what they are required to do.
Lord Falconer of Thoroton (Lab)
Again, I do not think it needs to be on the face of the Bill, because the Bill is clear about the rights of the doctor in relation to that.
Baroness Berridge (Con)
Sadly, for the noble and learned Lord, I think that there are more amendments that need to be discussed, including one that I have laid. We have all discussed this on the basis that there is no one else in the room. There could be relatives there expressing a wish. We have discussed this on the basis that the patient rises and has capacity. They may not have capacity and there may be relatives in the room with enduring powers of attorney. The noble Baroness, Lady Hayter, shakes her head, but there are many scenarios in which there is not clarity in the Bill between the moment the drug is administered and the moment of death or it fails. I am afraid that I give the noble and learned Lord notice that I think we will have to come back to this, because the medical profession is asking for clarity.
Lord Blencathra (Con)
This has been another interesting debate. Possibly more important than the speeches that we all made at the beginning has been the last 40 minutes of real debate and interchange with the noble and learned Lord. I am left with the feeling that many colleagues in the Committee feel that there are a lot of unanswered questions and some uncertainties that we may need to return to.
However, I will follow the instructions of the Companion and the Government Whips, and I will not seek to respond in any detail to the many good points raised by noble Lords. I merely wish to remind the Committee that in the debate we heard from the noble Baronesses, Lady Coffey, Lady Lawlor, Lady Hollins, Lady Berridge, Lady Finlay of Llandaff and Lady O’Loan. We also heard from the noble Lords, Lord Empey, Lord Harper, Lord McCrea, Lord Carlile of Berriew, Lord Wilson of Tredegar and Lord Mawson. What they all had in common was that they were deeply concerned that the definition of informed consent is not strong enough in the Bill and something more needs to be added.
I think that the noble and learned Lord relied on Clause 12(2)(c)(iv). The doctors have to discuss
“the nature of the substance that is to be provided”
and, in Clause 12(2)(d),
“discuss with the person their wishes in the event of complications”.
However, there is nothing in there to say that they have to discuss the complications with them or the possible side effects. The noble and learned Lord may pick me up on this if I put the wrong words into his mouth, but I think that he said that explaining the nature of the substance could possibly—I think that he used that word—include discussing the possibility of complications and side effects.
Lord Falconer of Thoroton (Lab)
If the noble Lord is suggesting that I said “possibly”, meaning that you might have to say what the complications were, if there were complications or the threat of complications, I did not say that. I said that if there was the prospect of complications, you would have to say.
Lord Blencathra (Con)
I think that I will have to check the record, as I firmly remember the noble and learned Lord using the word “possible”; it will be “possible” to discuss this. I think that most noble Lords who have spoken do not want the possibility of it being discussed but the certainty of it being discussed, and that may require an amendment to this part of the Bill.
Many noble Lords made the point that you cannot get any NHS treatment or any medical treatment these days unless the doctor takes elaborate steps to explain the consequences, the downsides and things that could possibly go wrong. That extends through all aspects of health. Two days ago, I went down Victoria Street to buy a packet of Night Nurse in Boots. I was interrogated: “Have you taken this medication before, are you taking other medication with it, are you aware it can make you drowsy?”—they were practically asking, “Are you going to fly a jet plane after this?” It goes to that extent in selling drugs. Noble Lords were concerned that, when people are getting treatment to help cure them, they get every single thing explained, but they would not get it explained to them in detail if it is a treatment to kill them.
Some may say, “What does it matter? If you’re going to take a drug that will kill you, why do you need to know the side-effects?” Well, you do not need to know the long-term side-effects, of course, but you do need to know any side-effects the drugs may have. As the noble Lord, Lord Goddard, said, NICE guidelines say that no drug can be supplied unless it is approved by NICE. But NICE approves drugs to treat you; it does not approve a lethal dose. We have seen in the United States death row places where people are given a cocktail of drugs. In the old days, it was straightforward: it was a drug that could kill you. Now, they are given drugs that, taken individually, can help your life, but, when given in combination to put someone to sleep, slow the heart and all the other things, those cocktails eventually kill them. We have heard horrendous stories of the cocktails not working and the person waking up. Noble Lords have raised questions about what would happen if a patient who is given a lethal cocktail or drug wakes up; we just do not know what the consequences would be.
Lord Katz (Lab)
I thank the noble Lord, Lord Blencathra, for tabling these amendments. I note his wish to keep this brief so that we can move on to a later group to discuss the issues that he raises in greater breadth.
Amendment 39C seeks to exclude anyone whose primary motivations for the request for an assisted death are financial concerns, lack of housing or lack of social support. This would require someone to establish the motivations of a person requesting an assisted death. It is not clear who would make this assessment or how they would make it. It is also unclear how a number of the phrases in the amendment are meant to be interpreted and assessed, including “financial concerns”, “lack of housing” or “lack of social support”, because these terms are not defined. The amendment also conflicts with later provisions of the Bill setting out how eligibility is assessed in more detail, which would cause confusion. If passed, considerable further policy and drafting work would need to be done to clarify the intent.
In the spirit of brevity, I make no comment on the other amendment in this group. However, as noble Lords will be aware, the amendment has not had technical drafting support from officials.
Lord Falconer of Thoroton (Lab)
My Lords, I am grateful for how this has been dealt with. We have discussed this a lot, at Second Reading and in Committee. I have made clear that, while suffering may very often be the cause of somebody wanting an assisted death, it is not the trigger for it as a legal requirement. Why people want to end their life in the context of a terminal illness is for them to decide. The effect of these amendments is that a person is entitled to an assisted death only if the reasons for them wanting the assisted death are the symptoms, suffering or prognosis of the terminal illness. I am not in favour of inquiring as to precisely what is the cause. Severe misery may well be the cause in the context of a terminal illness. In my view, this provision would unduly limit the entitlement to an assisted death, so I am against these amendments because they go right against the principle of the Bill.
Lord Blencathra (Con)
My Lords, I think that the noble and learned Lord is utterly wrong in his last pronouncement. Misery should not be a reason for an assisted death. The misery might be able to be removed. At Second Reading, my noble friend Lord Moylan stated that many people do not actually want to die; they want the things that are causing the feeling to be removed. They want better housing, they want better relationships with their family, they wish their love life was better or they want out of total misery. The noble and learned Lord is utterly wrong in seeming to extend the reason for dying beyond the severity of the terminal illness.
We will probably discuss this better and in more detail in the next group of amendments, so I beg leave to withdraw my amendment.
Lord Katz (Lab)
I thank noble Lords for their considered contributions on the motivation for assisted dying. Before I go into the meat of my comments, I join the noble Lord, Lord Kamall, in thanking the House clerks and staff for all their efforts and dedication in allowing us to sit for longer on a Friday to consider these weighty issues properly.
I also share the noble Lord’s comments about our wider motivations across the House, and about generally in politics wanting a better society. For what it is worth, I find myself in agreement with the noble Lord, Lord Deben, that, indeed, no man is an island. Whether that makes me a classical liberal or not, I am not sure—probably not.
These amendments seek to amend the eligibility criteria for assisted dying, to require that the person’s wish to end their own life is due to their terminal illness rather than to other reasons. I will keep any detailed comments limited to the amendments on which the Government have major legal, technical or operational workability concerns.
Amendments 320ZA and 332AA, tabled by the noble Lord, Lord Blencathra, seek to prevent people being eligible for an assisted death if they are motivated by non-medical factors such as loneliness, poverty or lack of services. There are various workability issues with these amendments, which I will briefly outline to aid noble Lords’ consideration. First, it could be challenging to establish whether someone is seeking an assisted death as a result of specified factors, given that a person’s motivations could be complex. Furthermore, a wide range of factors could be deemed as non-medical, given that the term is not defined and the list given is non-exhaustive. It is also unclear how the patient or doctor are meant to proceed if these factors are present.
I raise no major workability issues with the other amendments in this group, which are rightly a matter for your Lordships’ House to decide. However, I would like to set out their potential effects, which noble Lords may wish to consider. The amendments would require a person’s terminal illness to be a motivation for them seeking an assisted death, but, as drafted, they do not require it to be the only or primary motivation. It is arguable that every person seeking an assisted death under the Bill would be doing so in some way because of their terminal illness, so it may be that, in practice, the amendments would not impact on who is eligible.
The noble Lord, Lord Kamall, asked me some questions. I would push back on his first question around how the Government envisage a process or system for establishing motivation beyond condition: we genuinely think this is a policy decision, and that is one for my noble and learned friend Lord Falconer, the Bill’s sponsor, and those others who support the Bill. On his question about any work or research that NHS England has undertaken, I do not have that answer at my disposal, but I am very happy to take it back and write to him.
Finally, I would just like to mention that none of the amendments in this group has had technical drafting support from officials, so the way they are currently drafted means that they may not be fully workable, effective or enforceable.
Lord Falconer of Thoroton (Lab)
My Lords, I join with the noble Lord, Lord Kamall, and my noble friend Lord Katz in thanking the staff for staying for so long this evening. I also congratulate the Committee on what was a very high-quality debate at the very end. We did incredibly well to have such a high-quality debate in the last hour or two at 6 pm. Thirdly, this is not in any way to denigrate the debate; it has been threaded through the whole of these Committee stages. Indeed, we had a quite similar debate last week, which the noble Lord, Lord Harper, referred to.
I will make three specific points about the amendment. There is a group of amendments, but at the heart of the lead amendment is that you should be entitled to an assisted death only where your motivation is
“because of the terminal illness”.
My noble friend Lord Katz adverted to this, but it is almost impossible to see that that has any real meaning in the context of a person who is, in fact, terminally ill. If any of us became terminally ill, it is almost impossible to imagine that the terminal illness would not have an effect on any decision that we would take, in particular a decision on whether we wanted an assisted death. The noble Lord, Lord Moore, touched on this. I do not know that I would put it in exactly the same way, but, to “Why do you want an assisted death?” they might say, “Well, obviously, I am terminally ill, and I have other factors as well”. So I am not sure that the amendment has any real impact.
Secondly, there is an underlying issue. I ask the noble Lord to let me finish—then, by all means, he can come at me at the end.
Secondly, there is an underlying issue. The noble Baroness, Lady Cass, said that perhaps breathlessness and pain should be the only justification, because that is all that doctors could properly measure. Again, that indicates a significant disagreement between us about the principle of the Bill. I do not shy away from saying that the principle of the Bill is that, once you are diagnosed with a terminal illness, then, subject to the stringent safeguards being satisfied, you should have the option of deciding for yourself how you die. If you go down the route that my noble friend Lady Berger, in her amendment, wishes us to go down, this, in my respectful submission, would be an impossible task.
Lord Falconer of Thoroton (Lab)
If the noble Lord will let me finish, then he can come at me. The noble Lord, Lord Hamilton, refers to the question of wrong diagnoses. We will come to that in the group that starts with Amendment 71; I do not want to go into it now. However, we are dealing here with a terminal diagnosis, with two doctors and a panel who have approved it. Doctors are not perfect, of course, but this is very much a safeguarded measure.
I apologise for not taking the noble Lord’s intervention straight away.
Lord Goodman of Wycombe (Con)
Imagine I were a poor person who went before the panel and opted for an assisted death, but said, “Were I rich, I would not do this; I would take my chance on the diagnosis being wrong”. If the amendment moved by the noble Baroness, Lady Berger, was passed, I would surely be ineligible, so her amendment is meaningful. If the noble and learned Lord believes that one should be able to choose an assisted death if one is poor, that is one thing, but, as my noble friend Lord Deben argued, one should be protected from having to choose it because one is poor. That is the difference.
Lord Falconer of Thoroton (Lab)
The way the noble Lord has put the question to me means that, plainly, this would be because of the illness, would it not? I want an assisted death because the illness is going to kill me. That seems quite a bad example.
Baroness Fox of Buckley (Non-Afl)
I appreciate that the noble and learned Lord is saying that we have covered a lot of this ground before, but there is one reason that people keep coming back to similar threads. The noble and learned Lord has in many instances said, “I’m listening to you. I’ll think about that”, and nothing happens. It is not reassuring and there are different ways of approaching this. I thought I had made some inroads. The noble and learned Lord was quite positive about the question of motivation being relevant.
A patient arrives at the doctors and says, “I’ve got a terminal illness”. The doctor says, “Why do you want an assisted death?” The patient says, “I’m costing my kids a fortune—their inheritance. The care home costs tens of thousands of pounds. I’m a burden”. The noble and learned Lord just suggested to the noble Lord, Lord Deben, that you would say, “That’s your choice”. As in an earlier discussion in relation to the NHS, we are talking about NHS doctors, whom you would think would say, “Let me have a chat with you about that” and challenge them. They cannot just say, “If that’s what you want, carry on”.
All those examples I gave—I will not go over the millions of better ones used in the past—show that this undermines autonomy and suggests that the state is indifferent to somebody, in effect, asking for help in a different way but the form it takes is, “I might as well have an assisted death”. If you listen to them, they might be asking for something else that the state can intervene and help them with, whereas we just go, “Assisted death? We can provide that. Any of that other stuff you want, like financial help or help with loneliness and all that—we can’t afford that. That’s not happening, but assisted dying? You’re on your way”. That is why we are worried, and it is why these amendments are worth taking seriously. The noble and learned Lord needs to come back with written amendments that will reassure some of us so that we do not keep repeating ourselves.
Lord Falconer of Thoroton (Lab)
That was not really an intervention; it was just a statement. I should have said to the noble Baroness, Lady Fox, that, as I said last week, I will make an amendment so that the question of why will be asked, but I do not depart from the proposition that autonomy should be the leading reason for it. We disagree about that, and the House can reject that view on Report, but I am explaining what my position is.
Lord Harper (Con)
I want to pick the noble and learned Lord up on the progress that I thought we had made last week, which he has just confirmed a bit, when he accepted that asking the question was valid. The problem is, if the result of asking that question is that nothing changes, it is just cosmetic window dressing. He may not have intended to, but he illustrated beautifully the point of asking the question. If we talk to somebody and it is clear that the reason they do not wish to go on is that they are lonely and they have no one there, we can do something about that. There are organisations and people who would provide that companionship. I see the noble Baroness, Lady Hayter, shaking her head. There are organisations and people who would do something about that.
It comes down to the point I made last week. We are saying that, if your life is terrible and you get a terminal illness diagnosis, under the Bill, you are more likely to want to end your life with assistance than someone whose life is great. That is a terrible thing for us to do. The noble and learned Lord does not agree with me; that is fine. The House will have to make a decision, and I think that the position that we have set out with these amendments would lead to a better Bill and a better society than the one he is setting out. We will keep making that point and attempting to move him to that position.
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
My Lords, we are meant to be having brief questions here; these are not brief questions.
Lord Falconer of Thoroton (Lab)
That was the very thought going through my mind as I listened to the noble Lord, Lord Harper, and the noble Baroness, Lady Fox. They just made the same speeches again. On the point that he is making, the question of why is worth asking for two reasons: first, it might go to the question of coercion; and, secondly, it might throw up something that can be remedied, but, in the example I gave about loneliness, it may well be that meeting an organisation in those circumstances is simply not enough and does not change the person’s view. That is why I say that autonomy, rather than parsing the reasons, is the right course. In those circumstances, I invite the noble Baroness to withdraw her amendment.
Baroness Cass (CB)
May I just correct something? The noble and learned Lord said that I wanted it to be only things that doctors can measure. It is not so much about things that doctors can measure. I was saying that it is about whether it is plausible—a doctor should have good judgment of this—that the distress the person is experiencing is in any way related to the illness with which they have been diagnosed. There is a subtle but significant difference because that is what helps you distinguish between it being that or coercion.
Lord Falconer of Thoroton (Lab)
I will think about what the noble Baroness said. Perhaps it is my fault for not getting it. I will not write, but I will talk to her and listen to what she says.
Baroness Finlay of Llandaff (CB)
I have a short question, if I may. If I heard it right, the noble and learned Lord said that he would bring forward an amendment to put asking the question of why in the Bill. Whereabouts in the Bill does he intend to put it, and when will we see it?
Lord Falconer of Thoroton (Lab)
I do not want to commit myself to where it will be. It will come somewhere, but I assume the best place for it, subject to advice, would be either with the co-ordinating doctor or the independent doctor, or the panel or all three, having to ask why.
Baroness Berger (Lab)
My Lords, I also extend my thanks to the staff of the House for all their diligence in looking after us, particularly at this late hour. I thank all those who have participated in this important debate which, as I said at the start, goes to the heart of what this Bill sets out to do. While I am mindful of the time, I want to acknowledge the fact that there are a number of colleagues who wanted to participate in this debate but were prevented from doing so because of where they live across the UK. I myself would not be here right now if it was not for the fact that I am leading on this group of amendments. I would be with my family, acknowledging the Jewish Sabbath, as I do on a customary basis every single week.
I think it is worth rapidly reflecting on the contributions which build the case for these amendments. We heard from the noble Lord, Lord Shinkwin, about his lived experience of being told that he was going to die, and he is obviously still with us—we are delighted he is still with us—decades later. The noble Lord, Lord Hamilton of Epsom, talked about the challenges of a six-month terminal prognosis and errors in diagnosis. That point was echoed by others during our debate. The noble Lord, Lord Blencathra, talked about the challenges of non-medical motivations dominating the reasons for choosing an assisted death in some other jurisdictions, which really is the prompt for the amendments that we have discussed this afternoon. The noble Lord, Lord Carlile, said that the capability to have an assisted death alone should be due to the terminal illness itself. It was illuminating to hear from the noble Lord, Lord Deben, about his socialist ideals. However, the context in which we consider this Bill is that we are not just individuals; we exist within a society.
I am very grateful to the noble Baroness, Lady Cass, who corroborated how these amendments in a medical context ensure that the motivations for an assisted death are concrete, clear and defensible. I listened closely to the challenge from the noble Lord, Lord Moore of Etchingham—I do not think he is in his place. He asked how these amendments will make a difference, and this was a point echoed by my noble and learned friend. These amendments cement the principle of this Bill. It makes very clear to the public that it is your terminal illness that has to be the reason why you are pursuing an assisted death. Currently, the requirement is that doctors have to assess the patient and, instead of just establishing a clear, settled and informed wish to die, they must, via these amendments, establish that the terminal illness is the reason. That is not to say that there is no risk of someone being misled—that is the inherent risk to this entire Bill, in particular because of the lack of training that will be available to doctors as set out currently in the impact assessment.
The points made by the noble Lord, Lord Harper, showed us how these amendments connect to meeting the public’s expectations of this Bill. The noble Baroness, Lady Finlay, made it clear that the motivation to have an assisted death should be because of terminal illness and we should set that out in the Bill. This is yet another issue that is not clear and we need those clear boundaries. I am grateful to the noble Baroness, Lady Grey-Thompson, for setting out some real-life case studies and examples of why these amendments matter.
I believe that this debate, and, indeed, how my noble and learned friend set out his conclusion just now, has confirmed that there is a real difference at play in how we understand what the Bill sets out to do. For some—I hope I am not mischaracterising, but this was certainly in the contributions of the noble Baroness, Lady Blackstone, and alluded to by the noble Lord, Lord Markham, and my noble friend Lady Royall—it is about autonomy: allowing those who are already dying to exercise choice over the timing and manner of that death. For others, like me, it is primarily about compassion in seeking to prevent or minimise the suffering associated with their illness. These are related positions but they are distinct. My amendments have sought to establish which is the position of the Committee.
For myself and, in particular, those with a strong interest in mental health and suicide prevention, it is the latter that offers the stronger consideration for introducing a system that I am concerned is fraught with obvious risk to the vulnerable and those at risk of pressure. That means that we must do more than simply establish that a person is terminally ill and that they genuinely wish to end their lives; we must have a means of establishing the link between those two questions so that we do not open the door to having the state, which should protect vulnerable people, instead becoming complicit in their premature deaths.
None of these amendments, I believe, prevents there being additional motivations for seeking an assisted death. I intend to revisit this fundamental issue at the next stage and, indeed, through my engagement with this enormously consequential legislation. I will certainly consider the Government’s assessment of the wording as set out by the Minister, and I hope that the sponsor will also consider the profound concerns that have been raised during the course of the debate when we return on Report. For now, I beg leave to withdraw my amendment.