Terminally Ill Adults (End of Life) Bill Debate
Full Debate: Read Full DebateLord Falconer of Thoroton
Main Page: Lord Falconer of Thoroton (Labour - Life peer)Department Debates - View all Lord Falconer of Thoroton's debates with the Ministry of Justice
(2 days, 8 hours ago)
Lords Chamber
Lord Pannick (CB)
I am sorry but, with the greatest respect, the noble Baroness has not listened or read what is in the Bill. If any of the three members is unwise enough to abstain—I agree that it is highly undesirable that they should—because they are not satisfied that the case is made out, eligibility is not satisfied and, therefore, the person concerned cannot take advantage of the provisions of this Bill. Again, if the noble and learned Lord, Lord Falconer, thinks that I have misunderstood this, he will say so, but he is nodding. The noble Baroness really needs to read the Bill.
Lord Pannick (CB)
If the noble Baroness reads the Bill, her concern will be addressed.
Then we need to look at paragraph 8 of Schedule 2, which tells the commissioner that he or she
“may give guidance about … practice and procedure”.
I would be very surprised if the practice and procedure did not allow for interested parties to be heard or provide—this is another point made by the noble Lord, Lord Carlile—documents to be requested. If they were not requested and a person did not supply relevant documents, I would expect one of the three members of the panel not to be satisfied.
My Lords, I speak because I was persuaded by the case made by the noble Lord, Lord Carlile, but I recognise that there are inevitable questions that his case provokes, which have been reflected in the debate.
Of course, not everyone has been convinced. I am reassured by the strength of the noble Lord’s case, having spent four and a half years as an Education Minister and one and a half years as a Justice Minister with direct responsibility for liaising with the family courts, and so my respect for those who work in those courts and the judges in them is all the greater for it.
However, as the noble Lord, Lord Pannick, has pointed out, not everyone believes that judges would be the ideal people to make decisions in this case. I remind the noble Lord, Lord Pannick, with respect, of the case that he made in his wonderful book, Judges, where he said:
“So long as men and women continue to wound, cheat, and damage each other, there will be a need for judges … Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid: make decisions”.
Each of us may consider either judges or a panel preferable, but there is one key question for those who agree with the noble Lord, Lord Pannick, in his current incarnation and believe that a panel is preferable. Can we know what the promoter of the Bill understands by “legal member”, and can we also understand what the Government believe the definition of “legal member” to be? What is the threshold, what qualification—
There is a detailed definition of “legal member” in paragraph 2(2) of Schedule 2.
I look forward to hearing what the Government believe the appropriate definition would be and what they understand that means in terms of the pressure on resources for the profession.
That is very good. I am glad that the noble Lord has confirmed that the Minister will respond; I look forward to her doing so.
My final point concerns whether the Bill’s sponsors have carried out the modelling and costings that their proposals will require. Have those been put before this House so that we can make the appropriate decisions?
I am sure that the noble Lord will have read the impact assessment; it is based on the current Bill, which includes the panel, and contains detailed costings for the panel.
I am aware of that. I want to know whether it will contain detailed costings for the court process. Obviously, I do not know what the noble and learned Lord, Lord Falconer, is going to say, but one of the things discussed yesterday was whether he will accept any of the amendments that have been tabled. The point I am making is that, if he were minded to accept the amendments from the noble Lord, Lord Carlile, which obviously have a cost implication, there is a role for the Government in assessing those costs as well as a role for the sponsors. I am simply asking whether, if the noble and learned Lord were to accept them—he may not, of course—he would also provide the costs to the Committee. At that point, I draw my remarks to a conclusion.
Baroness Levitt (Lab)
It sounds like an important point. I am sure that the noble Baroness will understand that I do not have the answer to that at my fingertips right now, but I will write to her.
My Lords, I declare that my wife is a recently retired designated family judge—one of the people whom the noble Lord, Lord Carlile, wishes to include in his court-based process. It makes me warmly in favour of them; I admire greatly the Family Division. I also completely endorse what the noble and learned Baroness, Lady Butler-Sloss, said: if this was put in the Bill, I have no doubt that the Family Division would deal with it well and in accordance with the directions of Parliament. However, I am not in favour of the change proposed by the noble Lord, Lord Carlile, in Amendment 120. I will deal with that in detail in a moment.
I do not want to take up unnecessary time, but the purpose of the judges’ role is to receive the evidence relevant to the issue under consideration. There are many tribunals, such as mental health tribunals, on which doctors serve, but in my view and that of many, where critical issues are being considered, a more satisfactory process, on the whole, is for the judge to hear the evidence and adjudicate on it. To pick up a point made by the noble Lord, Lord Hamilton, as the noble and learned Lord knows, judges are perfectly capable of rejecting medical evidence that is put before them and do so with reasonable frequency.
I take that to be a yes. The position the noble Lord is proposing is that the judge hears the evidence of the doctors on issues, for example, of coercion, capacity and firm and settled view, and then makes the decision. The comparison we have is between what is in the Bill—two doctors each forming a view on the terminal illness decision and the issues of capacity and whether the person has reached a voluntary decision as to whether to have an assisted death, and the panel either endorsing it by giving the certificate or rejecting it—and, as the noble Lord is suggesting, letting the court in effect decide the whole thing. I reject that view because I am absolutely satisfied, although I accept that this issue requires a lot of work and thinking about, that you are much better off having a multidisciplinary approach to somebody making an assisted death decision. It is much better to let the social worker, the psychiatrist, the doctor and the legally qualified person look at the situation and then decide whether somebody should make that decision on assisted death.
The evidence given in Committee—
May just continue? I will come back to the noble Baroness in a moment. This is very important—it is the critical bit of the whole thing.
There was a lot of evidence given to the Commons Committee in which this very issue was discussed. Sarah Cox, an expert, gave evidence. She said:
“The other thing that concerns me is that we are putting all these assessments on the shoulders of two doctors individually, followed up by a High Court judge. In any other clinical practice, when we are making very serious decisions, we know that shared decisions are much better quality, much more robust and much safer. In clinical practice, we make all these decisions in multi-professional teams. I would never make these decisions independently of my team, because the perspective they bring can help me to understand things that I am not seeing”.”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 28/1/25; col. 74.]
Judges are marvellous, but a number of pairs of eyes in relation to this is better.
A huge number of questions were asked as to why the sponsor in the Commons and I—
Will the noble Baroness let me finish? I am sorry but I am not going to take interventions at this stage. I will come to the noble Baroness in a moment, but I think I should make this argument in full.
The argument is that we made the decision to change from the judge, which I initially favoured, because of pressure and advice from the Ministry of Justice. That is not right. The change was made because the evidence was very clear, and I accepted that people are better off and it is safer if one does it with a multidisciplinary panel.
What are the reasons the noble Lord, Lord Carlile, has advanced for saying that we should have a court-based, not a panel-based process? First, he says that the court has experience of making analogous decisions. The type of decision he is referring to is the one the noble and learned Baroness, Lady Butler-Sloss, referred to: the Bland case, and whether people in a permanent vegetative state should have their life support turned off. That would be of assistance, but what we are proposing in the Bill is a panel, supervised by a commissioner, devoted completely to the question of whether assisted deaths should be permitted. Yes, we would get the benefit at the very outset of the analogous decisions the court has made, but here we would have a panel devoted only to that issue, and which is bound to become more experienced in it than the courts, which are rightly dealing with a whole range of things.
Secondly, it is said that the courts would give a reasoned judgment. As was pointed out in the debate, there is a requirement in paragraph 9 of Schedule 2 to the Bill that the panels give reasons in writing, and that will give rise to a body of decisions being made.
Thirdly, it is said that the court is a court of record. Yes, it is a court of record, but the key thing is, who is best at making the decision? Is it better to have just a judge, or an experienced legal member, a psychiatrist and a social worker? I do not think in all honesty that the fact it is a court of record will make any difference to that.
Fourthly, it is said that you can appeal to the Court of Appeal. We are talking here about people who want an assisted death. We want a safe process; we do not want an overengineered process. In my respectful view, the idea that you have to go into a system that carries with it appeals puts too much of a burden on the people.
Fifthly, it is said that the judges have a special respect in our system, a point made by the noble and right reverend Lord, Lord Harries. The key thing is not whether the judges have respect but whether our system of assisted dying will carry respect. This is a better way of making the judgment; that is why I support it.
A final point made by the noble Lord, Lord Pannick, who raised it and said it was the answer—it may have to do with the fact that it is a court of record—was that the courts have discovery powers et cetera. Yes, they do, but if the panel feels that there are areas that it is not getting to the bottom of, then of course it will not be satisfied and cannot give the certificate. For all those reasons, the panel is better than the courts. That is why the decision was made.
I will now answer the question from the noble Baroness, Lady O’Loan; I apologise for not answering it before.
I thank the noble and learned Lord. The question I wanted to ask him was connected to him telling us about panels and judges. As I understand it, the three members in the legislation he has presented to the House have expertise in their own area of competence. Does he accept that the benefit of the system devised by the noble Lord, Lord Carlile, is to bring many more disciplines—medical disciplines in particular—into the agenda? In particular, the judge would have the right to sit with the doctor, and there would be a psychiatrist’s report on the capacity et cetera of the individual, so the psychiatric issues would be taken care of. The amendment from the noble Lord, Lord Carlile, proposes something wider than that which the panel could provide.
I do not accept that. The position is in relation to the panel. If it wants a report from a doctor, it can get it. I understand the noble Lord, Lord Carlile, to be saying that the court can ask for all these things—which of course it can—and if it thinks they are appropriate, it will do so. I assume it will not ask for them when it does not think they are necessary to the resolution of the issues. The panel can do the same and, if it does not get them, just like the court, it will have to say no.
In relation to the panel, as a non-medic I understand from my time on the Select Committee that “multidisciplinary” has a particular meaning within healthcare that the witness to the Commons was relating to, so it is not quite the same issue. Is the noble and learned Lord not concerned that only two of the three representative bodies of the panel came and gave evidence to the Select Committee, and the British Association of Social Workers and the Royal College of Psychiatrists are not supporting the Bill, regardless of what their view might be on the principle? Although the noble and learned Lord is obviously very well persuaded by the evidence, the professional bodies that would sit on this panel are not yet persuaded.
The royal colleges are neutral on the principle. The Royal College of Psychiatrists has said that it is worried about the burden on psychiatrists, not by reference specifically to the panel—though it comes into what it says—but in relation to some of the capacity assessments it has made. I do not think it will be difficult to find, for the purposes of the panel, people who have the appropriate qualifications in psychiatry to sit on the panel. People who have had some experience and are maybe working part-time, for example, will be able to do it—so I am not concerned about the absence of people who could do it.
Does the noble and learned Lord not accept that his particular panel make-up disregards deafness, which is probably the largest disability in the whole of the United Kingdom? Some 19 or 20 million people are deaf to different degrees. The issue is very underrepresented in this House, oddly enough, although a large number of Members suffer from deafness. It is also particularly badly treated in the National Health Service, as we have seen in the recent report that one in 1,000 babies is born deaf and the issue is not addressed as it should be. Why does he think his panel will be any better than the proposal by the noble Lord, Lord Carlile? Presumably a judge would consider every aspect of a patient before making any decision. I am concerned that this panel attitude is quite irrelevant to those of us who are deaf—nearly 20 million British people are deaf—and to the very large number of people who do not speak English.
Lord Lemos (Lab)
I think the noble and learned Lord can respond to the noble Baroness’s point.
I am not sure, particularly given the way in which the noble Baroness addressed the issue at the very end, that this is a point about panel versus judge. I would expect a judge to be experienced and able to deal with somebody who is deaf, and if they are not able to, they should be. Equally, I would expect a panel to deal with that in the same way. In all honesty, that was not a factor in determining whether panel or judge was better. Both would have to deal with that.
My question was about deafness. There is no social work relevance to deafness. The noble and learned Lord’s panel is very specific.
I hope I have given a satisfactory answer in relation to that.
Baroness Scotland of Asthal (Lab)
I declare an interest as a former deputy High Court judge and recorder. Does the noble and learned Lord not think that one way of curing his concern in relation to the multidisciplinary nature of the assessment would be for the assessment to be made earlier in the process and the evidence made available to the court, which could then better make a determination?
Yes, I agree very strongly. This is a different use of the phrase: “multidisciplinary team” relates to the people treating the person. The more input they can have, the better. With respect to the noble and learned Baroness, I am not sure that bears on the question of whether panel or court is better because, whichever route is taken, one would hope that, at the stage where either the panel or the court is making a decision, it would have access to what the multidisciplinary team treating the patient thought about the patient.
Baroness Scotland of Asthal (Lab)
My Lords, if I may just assist the noble and learned Lord, the reason I think it relevant is that if that multidisciplinary assessment is available, and the court has that evidence available to it, together with any other assessment made by individual additional clinicians, the court can then make an informed assessment as to which method or approach it is minded to deal with, particularly when it does not necessarily agree with the evidence of one particular clinician from whom it has had the benefit of hearing. That is the reason I think it might be useful.
I do not understand that proposition. It seems to me that the panel is able to take that into account just as well as the court—and, indeed, I think the panel would probably be better able to assess it. I am not sure I accept that proposition.
My Lords, when this was debated in another place, that argument was made, and the Association for Palliative Medicine wrote formally to correct the record. In the statement, the APM clarified that the Bill does not align with the standard multiprofessional team decision-making process. The noble and learned Lord mentioned Dr Cox, who argued that the Bill’s model of two independent doctors working alone was inadequate, and that assessments should be carried out within the multiprofessional team model to strengthen the Bill. On that discrepancy, the APM and MPs noted that although the Bill introduces a panel of psychiatrists and social workers at the end of the process, that does not equate to multiprofessional assessment at the beginning—the assessment stage that Dr Cox was advocating for. That is really important. The Association for Palliative Medicine wrote formally to correct the record following the debate in the other place. If the noble and learned Lord does not want to respond to that point right now, I am very happy for him to write to me, but I think it is important for that to be on the record in this Chamber, as a by-product of what happened in another place.
The reason why I quoted Dr Cox of the Association for Palliative Medicine was that she specifically said that it is better to approach this issue through a multidisciplinary process rather than by placing it on the shoulders of the two doctors and the High Court judge. The panel approach reflects that approach. That is why I quoted it. I do not think I need to write to say that. It was part of the evidence that was saying, “Have not one pair of eyes to judge, but three pairs of eyes”.
I have had 21 minutes, so I have to get on and just deal very quickly, if I may, first with the costings. The only costings that have been done have been by the Government. The Government’s costings have been done in relation to the panel but not in relation to the High Court. I have no desire for a High Court costing to be done. If others want it, they can press for it, but I am not asking for it, nor would I expect it from the Government. The impact assessment has been done as it is, as part of the Bill. I am against the proposition to change the provision in relation to a panel, so I am not pressing for any such panel.
I will just get on and deal with the less prime points. Amendment 116, which I think was tabled by the noble Baroness, Lady Coffey, says not to use the Mental Capacity Act. I am against that for the reasons I have already given, which is that we should have one system for all these situations. Amendment 426, tabled by the noble Lord, Lord Carlile, suggests that we should use the criminal standard of proof for capacity. I am against that for the reasons given by the Minister.
The noble Baroness, Lady Coffey, in Amendment 426A, says that the panel should not sit in private. The Bill states:
“Panels are to determine referrals in public; but … The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private”.
If you are dying and want this last discussion with a panel to be in private, you should have that right, in my respectful view. I am strongly against the proposal that she makes. Amendment 426B, tabled by the noble Baroness, Lady Coffey, would require that the person attends in person, which is not understanding of the fact that some people would not be able to attend in person for obvious reasons. Amendment 120A, also in the name of the noble Baroness, Lady Coffey, would exclude legal aid. For the reasons that the Minister gave, I do not think that that is possible.
Amendment 37 asks why Clause 1 only refers to Clauses 8 to 30 and not to the whole Bill. The reason is that Clause 1(2) sets out the steps that have to be taken to satisfy the circumstances of the Bill and those are only in Clauses 8 to 30. The other parts of the Bill are on things such as keeping records and so on.
I think that I have dealt with all the substantive points. For the reasons I have given, and without any lack of respect for the noble Lord, Lord Carlile, who presented it very clearly, I am against the proposal that he is making.
My Lords, could I just put one thing to the noble and learned Lord? Granted that the panel and the court-based system have a great deal in common, six months to live and mental capacity are clear and settled decisions—
My Lords, I think that part of the difficulty is that we are trying to find a pragmatic method of discussing this complicated Bill. There are some 80 amendments in this particular group and it is impossible for the noble and learned Lord, Lord Falconer, to give justice to all of them in 20 minutes. He has talked in general principles, but he must be aware that one of the difficulties, which connects with yesterday afternoon’s debate—I was not here for it, but I saw it on television—is that he is not satisfying the need of explanation for those who are articulating points of view. Taking just a little bit longer may well be a shortcut to getting the Bill done. I feel that part of the difficulty, having listened to a lot of the debate on the Bill, is that the noble and learned Lord is desperately keen to keep moving. I understand that, but there are points at which he can stop and explain, perhaps with a bit more sympathy to the points that have been made by other Members of the House.
Can I answer what the noble Lord, Lord Taylor, whom I greatly respect, has said? I have answered in some degree of detail the main substantive points and I believe that I have dealt with them in a way that is appropriate for Committee. One of the things that one has to do in Committee is focus on the things that really matter and avoid the other things—that is what I have done. I am open to anybody coming to see me. I started this process by writing to individual Peers to say, “Come and see me to raise anything you’ve got.” If there is anything that they want to talk about, I am more than willing to talk about it. However, I very much believe that I have answered in detail the substantive application made for an amendment.
My Lords, I am very grateful to everybody who has taken part in this debate. I hope your Lordships would agree that, although this debate has taken over three hours, it has been conducted in precisely the spirit that was discussed in the short debate yesterday and that it has justified taking that time. I said yesterday that I thought we should move more quickly in this process and I believe we will be able to do so in the future. This has been an example of doing so on a very important subject.
May I express my grateful thanks to both Front Benches for the way in which they summarised their particular interests in this debate? I thought both were extremely helpful. For those who have seen my noble kinswoman, the Minister, during the year she has been here, I think they will be reassured and understand that she is perfectly capable of erecting Chinese walls that put the Great Wall of China to shame.
A point that particularly caught my attention was made by my noble friend Lord Empey. He happens to be a very valued member of a Select Committee of this House that I chair and I can confirm that he is an expert in labyrinths. He is an expert in finding his way out of labyrinths and it is just possible that, from time to time, he is quite good at making labyrinths longer— I hope he takes that in good heart. He raised a question about whether, as he put it, there should be a “special chamber”. It occurs to me that, given that the purpose of my amendments is to ensure that this is a judicial process that falls into our judicial architecture, there may be room for the sort of discussion that we talked about in yesterday’s debate with the noble and learned Lord, Lord Falconer. One might be able to find a hybrid form of what the noble Lord, Lord Empey, and I have proposed that falls within the legal, judicial architecture.
Baroness Levitt (Lab)
I am not taking any interventions. I would invite the noble Baroness, with the greatest of respect, to write to me, and we will deal with the matter then.
In answer to the noble Baroness, Lady Smith, who raised the issue, along with others, including the noble Lord, Lord Harper, I can confirm that the Minister for Care said this week that we will publish an interim report in the spring and a final modern service framework by the autumn. We want to get this right, so we are not going to rush it. I remind all noble Lords that this is not a government Bill; it is a Private Member’s Bill.
For completeness, as the Committee will be aware, none of the amendments in this group has had technical drafting support, so the way they are currently drafted means that they may not be fully workable, effective or enforceable, but the issues raised are a matter for Parliament to consider and decide.
Finally, I had almost forgotten—how could I forget?—the noble Lord, Lord Kamall. I am going to commit the noble Baroness, Lady Merron, to writing to him.
My Lords, the relationship of palliative care to the Bill is very important and concerns both everybody in this House and people generally, so this is an important group of amendments. The amendments approach the issue in a number of ways. First, they approach it on the basis that, as the noble Baroness, Lady Finlay of Llandaff, said, in order to make a decision, you have to be properly informed. So there is an information aspect, which I will address in a moment. Secondly, there is an issue about whether, if you want to make an application for assisted death, you have to subject yourself to a compulsory assessment of some sort. Thirdly, there is the issue of whether you should be entitled to an assisted death only if you can access better and therefore more appropriate palliative care than might actually be available to you in the place in which you live. I will deal with each of those three issues, which are right at the heart of this group of amendments.
First of all, should you be properly informed? Yes, you most certainly should be properly informed of what palliative care is available to you, and the Bill should make that clear. I submit that the Bill makes that clear and does so in a reasonable way. I draw your Lordships’ attention to Clause 5, which says, on the preliminary discussion:
“If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must explain to and discuss with that person … all appropriate palliative, hospice or other care, including symptom management and psychological support, and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion”.
All the palliative care options that are available to you have to be discussed with you by the doctor in the preliminary discussion and, if you want, you can be referred to a specialist in palliative care as well. In addition to that, I refer your Lordships to Clause 12(2)(c)—I am grateful to the noble Lord, Lord Kamall, who took us through the provisions very helpfully—which says that each of the two doctors has to explain to the patient
“any available palliative, hospice or other care, including symptom management and psychological support”.
Therefore, there are three occasions on which the detail of the palliative care available to you is explained to you.
The noble Baroness, Lady Finlay of Llandaff, says that maybe they would not know the full detail. I recognise that that might be possible, but is it dealt with adequately in the Bill in terms of the information being provided? My own view is that it is. I do not think you need to make further provision as far as information is concerned. I am very happy to talk to any noble Lord in relation to that, but I think that this question has been addressed head-on and that a proportionate and sensible solution has been reached—proportionate even having regard to the fact that this is the most serious decision that somebody could take.
The second issue is whether, nevertheless, should you make a referral mandatory, it has to be done, you have to be examined and you have to have a meeting with a multidisciplinary palliative care team. I say no. I say that that is a choice, because the obligations of giving information are sufficient in relation to that.
The third issue raised by this group is that palliative care is patchy throughout the country; it is better in some places than others. I completely accept that. Everything that we do in relation to assisted dying should not lead to any reduction in finance for palliative care. I am sure that it will not. As those who have read the impact assessment provided by the Health Department will know, it makes it clear that the amounts of money we are talking about to fund assisted dying are in the tens of millions, which is not going to make a difference to the provision of palliative care in this country. I am not in favour of additional provision being made to provide palliative care for those who want an assisted death, nor am I in favour of saying that, unless the standard is the highest or a reasonable standard, you are not entitled to it.
As to the first of those two points—namely, that you are entitled to a higher standard if you apply for assisted death—the Minister said that that might well be contrary to the law, but put that to one side: we should do our best for everybody in relation to palliative care, and you should not get a special advantage if you apply for an assisted death. Secondly and separately, of course, nobody wants the absence of palliative care to be the reason you apply for an assisted death, but we have to give everybody this choice on the basis of the way the world is for them. It should not, for example, be available only in the areas where the best medical attention is available. As long as you know what you are entitled to, it should be available to everybody, not just those who live in Oxford or Cambridge or those who live close to St Thomas’ Hospital and other palliative care places.
The various amendments are all twists on those themes. My view is that we should make sure that they have the right information, and they should have access to a specialist who will tell them it if they want it, but I think the Bill does that. Although I am open to any discussion people want, I think we have done enough and addressed head-on these issues, so I invite the noble Baroness to withdraw her amendment.