Lord Stevens of Birmingham
Main Page: Lord Stevens of Birmingham (Crossbench - Life peer)Terminally Ill Adults (End of Life) Bill
Lord Stevens of Birmingham Excerpts(1 day, 8 hours ago)
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Lord Moore of Etchingham (Non-Afl)
My Lords, I accept the spirit of the noble and learned Baroness, Lady Butler-Sloss, so I shall be very brief. I support the noble Baroness, Lady Fraser of Craigmaddie, in her amendment on the register. I understand that one of the things that we are trying to do in this group is to protect professionals. Therefore, many of us will be very sympathetic to what the noble Baroness, Lady Gerada, said about receiving hate mail if there were a register. However, in modern times, I am afraid that everyone in a public position has to face the disagreeable fact of hate mail; it is a feature of social media. We therefore cannot close down the openness that we want to have on many aspects.
I am thinking about the benefit of this register to the patient. It is important for the medical profession as well, but it is very important for the patient for a wider reason. First, obviously you want to find someone who will assist you to take your own life, but also, as these debates so often show, there is unfortunately a big moral gulf between those who support and those who oppose the Bill. If you think of a patient, particularly an elderly patient with a serious illness who is therefore eligible under the Bill, it is important that they know the type of doctor they are dealing with in a wider field of care.
For example, suppose I had to find a doctor for my aged mother, who is absolutely determined to live to be 100, and is, in fact, the only woman I know who lies upwards about her age. I know that she would not want to go to a doctor who provided assisted dying, which is understandable. Behind all this is a very different view about life and death and what they are, and a patient would therefore need to know. That is a very good reason for supporting the noble Baroness’s amendment.
Lord Stevens of Birmingham (CB)
I will be equivalently concise. It is important to connect Amendment 657, which specifies that assisted dying
“is not to be regarded as medical treatment”,
with our debate on the broader conscience protections that the Bill needs to include. The reason is not just that regarding assisted dying as a treatment is a conceptual error. As Wittgenstein pointed out:
“Death is not an event in life”.
We are talking about a personal existential choice. It is in no sense a treatment, but the Bill is silent on that question. As the noble Baroness, Lady Fox, and others have pointed out, that matters in the real world because, notwithstanding the employment protections included in the Bill, the professional duties on a doctor are potentially in play if assisted dying is determined to be a treatment. That will give rise to questions on the obligations of a doctor to raise assisted dying as a possibility, even if that doctor’s conscience is against participating. It will give rise to consent questions—we talked previously about the McCulloch test—and negligence questions from surviving members of the family. It is therefore important that we put this beyond doubt.
Given the understandable desire of the House to move on to the next group, I will just commend to fellow noble Lords an article in the BMJ from 9 June last year, written by Professors Gareth Owen, Alex Ruck Keene and Katherine Sleeman, which sets this all out beautifully. Their conclusion was:
“Statutory ambiguity serves neither professionals providing assisted dying, nor patients requesting it. Parliamentarians must consider this question”.
That is what we are doing. Amendment 657 would put it beyond doubt, and I hope that the noble and learned Lord the sponsor will accept it.
Baroness Grey-Thompson (CB)
My Lords, I have Amendments 673A and 679 in this group. Amendment 673A would provide that a medical practitioner who had opted into the process could choose to opt out at any time, and Amendment 679 would insert a new clause.
I will start with a number of questions for the noble and learned Lord. In a letter to Peers on 28 January, the noble and learned Lord said that he had had very productive discussions with Hospice UK on institutional protections, and that he would table amendments as soon as possible. I think that three amendments have been tabled, but I am not sure that they solve the problem that we are trying to solve. There is nothing in those amendments that requires any training to be kept up to date, there nothing about revalidation, and there is no requirement to be trained and up to date to enter the assisted suicide process.
Can the noble and learned Lord provide an update on his statement that he is working with officials to address Hospice UK’s concerns? Does he accept that the red line for many care homes is that they are not willing to tolerate this process on their premises? In the other place, the honourable Member for Spen Valley resisted a blanket institutional opt-out, arguing that it could lead to “stress and distress” for terminally ill patients if they are forced to move out of their “so-called home” on their final day. But what about the stress and distress of those who share that home, should the process take place on the premises?
Does the noble and learned Lord accept that it will be very difficult to extricate care home staff from involvement—such as organising appointments connected to the provision of assisted dying, assisting in the organisation and sending of documentation connected to its provision, or accommodating the doctor who must remain with, although not necessarily in the same room as, the resident until they die—were assisted suicide to take place on the premises? Do the noble and learned Lord and the Minister recognise the seriousness of a situation where hospices feel forced to close, which could cost around £8.4 billion a year to the public purse?
It has been very interesting to talk about the number of people who may be trained. However, if the equality impact assessment is anywhere near correct, the estimated number of patients in year 1 will be somewhere between “273 and 1,078”, and in year 10 it could be between “1,737 and 7,598”. This does not sit alongside the 310,000 people who accessed hospice care last year. Therefore, if there is no expectation of overwhelming demand from people wishing to end their life, why is there need for mass enrolment?
There might be a number of different reasons why organisations with principled opposition might want to be exempted: freedom of association in law for charities, legal rights guaranteeing patients a choice of their place of care, the cost to the public purse, freedom of religion and belief in law, and the public benefit of faith-based charities.
We currently have a fragile workforce. In 2024, the Royal College of General Practitioners surveyed GPs, 42% of whom said that they were unlikely to be working as a GP in the next five years. This brings us back to the number of people who we may need to have trained. Whatever we think the Bill says, I am concerned that it is not clear enough. We also cannot underestimate the pressure on doctors and medical practitioners who may choose to opt out. If they work in an organisation that feels very strongly that this process should take place on its premises, someone’s career might be in jeopardy if they are not willing to sign up to it.
The noble Baroness, Lady Fox, raised issues around porters. Although we have discussed prisoners in previous groups, we have not discussed prison officers in this group. There is another group of individuals—not just doctors—who might want to exercise a conscience clause. It might include administrators as much as anybody else who works in the system.
My noble friend Lady Watkins of Tavistock rightly said that many people would choose to have excellent palliative care. The reality, as we have discussed, is that it is a postcode lottery. It is a great shame that as part of this Bill we were not able to discuss the provision of palliative care—it was ruled out of scope—because I think it would have given many of us a level of reassurance if we could have debated that at the same time.
Lord Falconer of Thoroton (Lab)
There is a specific provision for opting in. I am not quite sure what the noble Baroness is saying. It is absolutely clear that that is the provision.
I move on to the amendments to Clauses 5 and 31 on the width of the opt-out. As far as Clause 5 is concerned, as I indicated to the noble Lord, Lord Harper:
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.
A number of noble Lords, including the noble Lord, Lord Stevens, made the point, and he referred to Professor Ruck Keene and others’ articles on the problem. We have approached the question of whether it is a treatment or not on the basis of what provides a practical answer to doctors and medical professionals. If you say that it is not a treatment, I do not see why that would necessarily obviate the need, if you are worried about doctors or health professionals having, in particular circumstances, to raise it. The key thing for the doctor to know is there can never be a legal duty on him or her to raise it or to become a participant in the system.
What more could—
Lord Falconer of Thoroton (Lab)
Let me finish.
What more could one do to give protection to doctors? Beyond saying that there will never be a duty to raise it or to participate, I cannot think of what wording there could be.
Lord Stevens of Birmingham (CB)
I thank the noble and learned Lord for giving away. One answer would be to simply put in the Bill that this is not a treatment, in which case all the other consequences would not arise. The question, just to clarify, is: is he saying that assisted dying is deemed to be a treatment? Nevertheless, his Bill overrides the duties on a doctor affirmed by the Supreme Court in July 2023 in the McCulloch case.
Lord Falconer of Thoroton (Lab)
Yes, there can be no duty to raise a question of assisted dying if an Act of Parliament says that there is no duty to raise it. That case, the Montgomery case and the normal negligence cases do not in any way lurk in the background waiting to, as it were, stop this. It is absolutely plain that the effect of this provision and the provision in Clause 31 is that if you did not raise it, there can be no legal kickback of any sort. That is why it was phrased like that, and that is why putting in the words “it is not a treatment” would not be sufficient.
Lord Falconer of Thoroton (Lab)
The only organisational exceptions that I am contemplating—the exceptions in Clause 31 are for individuals—are in relation to hospices, not care homes.
Lord Stevens of Birmingham (CB)
I think the noble and learned Lord has just made a very important point. To clarify: he is saying that Clause 31(8)(b) would not apply in hospices; in other words, as drafted, the Bill would prevent a hospice as an employer from restricting doctors who were working for that hospice from also participating in assisted dying. If the hospice wanted, as a matter of philosophy or ethos, to say, “We do not want to be part of that”, is the noble and learned Lord saying that it would have an opt-out from Clause 31(8)(b)?
Lord Falconer of Thoroton (Lab)
I am not sure I have understood the question. If the question is, “Can a hospice opt out from the opt-out?”, the answer is no. Can the hospice have a separate opt-out? That may be the position, but I need to consider how to deal with that.
Lord Stevens of Birmingham (CB)
To clarify, I think Clause 31(8)(b) prevents a hospice as an employer restricting its employees from participating in assisted dying if they do it somewhere else. Is the noble and learned Lord saying that he is willing to change that?
Lord Falconer of Thoroton (Lab)
What I am thinking about is a provision that says if, as a hospice, you say you do not want to provide it, you should not suffer various sorts of institutional detriment. That is what I am interested in. I am not saying anything about Clause 31, because I am not understanding the noble Lord’s question, but that is what I am thinking about, to be clear.
Lord Stevens of Birmingham (CB)
I think what follows from that is that the noble and learned Lord is accepting the position that hospices will not be in a position to restrict their employees from participating in assisted dying, if they are doing that somewhere other than in the hospice.