Terminally Ill Adults (End of Life) Bill
Daniel Francis Excerpts(1 day, 14 hours ago)
Commons ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Dr Shastri-Hurst
I am grateful to the hon. Member for that intervention. I fear there is some rhetoric that engenders a fear around the medical profession, which is misplaced.
Dr Shastri-Hurst
I will give way in a moment, if I may.
Those are not my experiences in clinical practice, nor are they those of family members who have worked in it. We must trust our medical professionals, who are highly trained and capable individuals, to have these difficult and complex conversations, which they do every day on issues such as aggressive chemotherapy or the withdrawal of ventilation.
Daniel Francis
The hon. Gentleman, like me, sat on the Bill Committee. He heard, as I did, that if somebody had a learning disability, they were five times more likely to have a “do not resuscitate” order placed on them during the pandemic. Did he hear that evidence? Why does he not agree with it?
Dr Shastri-Hurst
I am grateful to the hon. Gentleman for his intervention. These are complex conversations that take place up and down the country every day; we know that they are taking place in St Thomas’ hospital at this moment. We are treating our medical professionals as though they do not take their professional obligations seriously. We must recognise the expertise that they bring and the sensitivities in which they have these conversations.
Naz Shah
I thank Members for supporting amendments 14 and 38 in my name.
I acknowledge that the promoter of the Bill, my hon. Friend the Member for Spen Valley (Kim Leadbeater), has said that she is happy, as of this morning, to accept my amendment 14.
My hon. Friend has also indicated that there might be a need to change some of the wording, but until I see the wording of the new amendment and can scrutinise it, I cannot make an informed choice about accepting that. In addition, I was told this at only 9.30 am, on the Floor of the House. It was not discussed with me, and I am not sure whether the promoter has discussed it with Ministers. This very argument has been hashed out in Committee, where many of us spent weeks and weeks scrutinising line by line.
Indeed, the promoter tabled her own amendment 181 in Committee to strengthen clause 2. At that point, Ministers, outlining their neutrality, said that the amendments tabled, for which many colleagues had argued, were not, in the Government’s opinion, workable. In the Government’s opinion, what has now changed? Has an assessment been made by my hon. Friend or the Government that these amendments could now be accepted?
What this speaks to—I emphasise this to all Members listening and to the public at home—is a fundamentally flawed process. [Hon. Members: “Hear, hear.”] This is not how we make legislation. I take my responsibility extremely seriously, as I am sure everybody in this House does. This is literally a matter of life and death. If the Bill passes without these safeguards, there is no coming back from those decisions.
Daniel Francis
As my hon. Friend knows, having been on the Bill Committee with me, I had the same advice from Ministers: they disagreed with the wording of some of my amendments, yet they were accepted by the Bill’s promoter and the Committee and are now in the wording of the Bill. The position of the promoter and the position put to this House will now be that those amendments are not in line with the Government’s position. What is my hon. Friend’s view on the fact that we will be asked to support that?
Dr Spencer
I am sorry but I really cannot, given the time restrictions.
Amendment 17 pertains to the test of decision-making capacity. In English and Welsh law, we use the Mental Capacity Act 2005 to define capacity, and I believe it is right that the functional test of capacity is used in this Bill. We have common law tests of capacity in some circumstances, which arose before we had the Mental Capacity Act. However, the decision to end one’s own life was not permitted in the early case law leading up to that Act. There is no jurisprudence background or guidance. These capacity tests have not been done before. This test needs a bit more of a framework of support.
Amendment 17 lays out the minimum information that needs to be understood as part of the functional test of capacity. Critically, that would include information about the current treatment options, about doing nothing and about proceeding under this legislation. It would make clear that physician-assisted suicide is not a medical treatment, but a personal choice about life and death. Without amendment 17, this Bill will fundamentally undermine the doctor-patient relationship. Doctors do not prescribe death, and this Bill must make that clear.
I turn finally to my amendment 32. There has been some discussion about the inadequacies of the decision-making capacity test as gatekeeper. In effect, there may be circumstances in which, despite having capacity, the person is otherwise recognised as vulnerable. That is how our courts operate. The impact of depression or personality disorder on decision-making capacity can be subtle and elusive. I know, as I used to be a consultant liaison psychiatrist and did research in the area of decision-making capacity. This is tricky stuff to do, especially in the context of a request for an intervention, rather than a refusal.
We should have trained psychiatrists at an early stage assessing capacity. They are expert at picking up these subtle cues and all the other stuff that is going on. A request for physician-assisted suicide should not be taken in isolation, and that needs to be understood and supported. We need someone who knows how to use the Mental Health Act, because if a doctor is doing the assessment, and they have a patient in front of them with a mental disorder, expressing a desire to end their life, they need to make sure that that patient gets the right and appropriate treatment. That may well be using the Mental Health Act. We need to make sure that this happens; I hope it would happen as part of the process as usual, but there is no safeguard in the Bill to make sure that it does. Psychiatrists turning up on the panel at the end is not good enough; they need to be there from the start.
Finally, there are broader issues about the interaction with protections to save life, article 2, and a doctor’s duties. I will cover those in the debate on the second grouping, along with the incredible importance of the Bill’s interaction with the suicide prevention strategy.
Daniel Francis
I rise to speak to amendment 24 in my name, and I will start by thanking my hon. Friend the Member for Spen Valley (Kim Leadbeater) for inviting me to be a member of the Bill Committee.
I accept the principle that somebody given the devastating news that they have six months left to live should be able to choose the moment that they die, with their loved ones around them, but this is not a vote on the principle. We are not being asked to make an arbitrary yes or no choice, for we are legislators, and my experience on the Bill Committee tells me that this Bill, as written, still requires additional safeguards to address the concerns of so many people in this country.
For me, it was death, and my thoughts and concerns about what happens when I die, that drew me to my conclusions on this matter.
Daniel Francis
I will not, because of time constraints; I am sorry.
Like a small number of other Members in this House, I know the daily concerns of being a parent of a child with complex disabilities, including a learning disability. That concern lives with you every single day of your life: that concern about what will happen to your child when you are gone—about who will assist your child, because of the help they require due to their level of mental capacity and the difficulties they have communicating and interpreting information. The concern that haunts me every single day is, “Who will make, and how will they make, those decisions to support my daughter when my wife and I are gone?”
That concern, shared by thousands of others, led me to the conclusion that the Mental Capacity Act 2005 was not written for this scenario. The parents of someone with a learning disability become accustomed to supporting them in their decision making. We understand their sight and communication difficulties, and the language needed to help them make a decision. The Mental Capacity Act rightly has a low bar to allow individuals to live a fulfilling life, because we would not want individuals to have their capacity assessed to purchase a coffee or withdraw money from the bank.
I raised countless times in Committee—it was never challenged; in fact, it was accepted in some exchanges—that it would absolutely be possible for the following scenario to occur. An adult with a learning disability discovers that they have less than six months to live. They have a level of mental capacity that allows them to make many decisions in life. They have enough capacity to understand that they could be a burden on their elderly parents. Their elderly parents might take the view that their son or daughter requires support to make the most complex decisions, yet because their son or daughter is assumed to have capacity under the first principle of the Mental Capacity Act, they could go through the entirety of this process—and the first time that the parents were aware of it would be when they were informed that their child had been assisted to die.
For the same reason, I support amendment 8, tabled by my hon. Friend the Member for Derby North (Catherine Atkinson), and amendments 10 and 33, tabled by my hon. Friend the Member for Lowestoft (Jess Asato), which relate to family members’ awareness of the process.
The second principle of the Mental Capacity Act is:
“A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.”
It was accepted in Committee that doctors would have to assist individuals in this scenario to make the decision about an assisted death. From my lived experience, I would query how some aspects of the Mental Capacity Act are being carried out, given that I often have to deal with professionals who deem that my daughter has less or more capacity than she actually does. I have accepted that she would not have enough capacity to go through the process, but the Bill Committee heard from Mencap in oral evidence that the vast majority of people with a learning disability in this country are not in the same position and could apply for an assisted death.
The Bill Committee heard from many people. Dr Rachel Clarke raised her concerns about capacity. Baroness Falkner, giving evidence on behalf of the Equality and Human Rights Commission, said that
“capacity is a very serious consideration in our concern.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 178, Q232.]
Dr Jamilla Hussain gave evidence about one palliative care team deeming that someone had capacity, while another palliative care team deemed that they did not. We heard from Professor Gareth Owen, from Dr Annabel Price and from Dan Scorer of Mencap, who all raised concerns.
In the last week, the Law Society has said that Parliament should fully consider how the Mental Capacity Act would operate under the Bill before any legislation is passed. The Royal College of Psychiatrists has said that although it is neutral on the issue, it opposes the Bill as it stands—particularly the mental capacity aspect, because, as it is written, it does not correlate with the Mental Health Act. Over the last few days, the Royal College of Physicians has also come out in support of that position.
Over the last six months, I have heard a lot about choice, compassion and dignity, but what about choice, compassion and dignity for the people I have described? I fundamentally believe that it is my job, and the job of all of us, to protect the most vulnerable—but the Bill, as it stands, fails to do that. I have every sympathy with somebody at the end of their life, as I have said; I believe that they should have the right to go on their own terms, at their own time. But are there sufficient safeguards to ensure—in response to those who have links to the press and Parliament to make their voice heard—that we fully consider every scenario and safeguard those who do not have those links and who do not have a voice?
If that choice comes at the price of one person, in a borderline capacity decision, being presumed to have capacity, that will be one death too many. My view is that it is not a price worth paying to allow others to have that choice. For that reason, I implore colleagues to support my amendment 24.
Several hon. Members rose—