Baroness Coffey
Main Page: Baroness Coffey (Conservative - Life peer)
Lord Mawson (CB)
I was just going to do that. I address the amendment because I worry that, while the amendment and the idea of a navigator seem very straightforward intellectually, I am trying to suggest that in the real practical world out there, when you engage with it, as my colleagues and I have done over the last 40 years, you see something quite different.
Baroness Coffey (Con)
My Lords, I shall speak to Amendments 287A, 287B and 771ZB. I call the noble Lord, Lord Birt, my noble friend. We went to the same school, although admittedly not at the same time. I am conscious that he has come at this with an approach of a lot of research, as he set out. The noble Lord knows that I disagree with him, but I understand why he is trying to speed up. However, I wonder whether he has taken account of evidence presented already. The noble Baroness, Lady Fox of Buckley, talked about the CEO of Mind, but also Marie Curie spoke about this and indeed the Royal College of Psychiatrists.
I am particularly thinking of the speeding up and that moment of reflection, which is really important. I think the noble Lord is already suggesting in his Amendment 771 that patients should be aware of their right to withdraw from the assistance process at any stage. There is quite a lot in here that sets out a framework that could be done through the NHS. I completely agree with what the noble Lords, Lord Stevens of Birmingham and Lord Mawson, have said: it worries me that, if this ends up in the NHS, it will accelerate in becoming a routine end of life. In my meetings with the Royal College of GPs, it has been clear that it does not want this to be part of the NHS and it would absolutely resist it being part of the NHS contract.
Lord Harper (Con)
On that point, and the point raised earlier about a conflict of interest, one of the problems if this is in the NHS is the money. The cost of the drugs to end someone’s life, according to the impact assessment, is £14.78, but the saving you would make from four months of healthcare not used would be £13,075, and anyone with any experience of NHS budgets knows that that contrast would inevitably drive people to being pointed towards assisted suicide.
Baroness Coffey (Con)
I understand where my noble friend is going with that. I intend to come back to some aspects of this when we get into informed consent because I was somewhat struck by what the noble Lord, Lord Winston, said, about declining to give treatment because he wanted people to, in effect, accept that they were dying—I think that is what he said, although I had better go back and check that because I do not want to misquote him. I have seen that myself; I saw it with my mother when doctors just had not treated her, and then when it came to it, when it was near the end, we had to fight to avoid even having a DNR on the ambulance so that she could die at home in a place of her choice. That is true patient autonomy—I am not trying to override that.
In terms of thinking through some of what the noble Lord has put forward in his propositions, others have already reflected on the concerns about working days and whether that is practical. I would be grateful to hear from both the sponsor and the Ministers about what assessment they have made of these amendments. I am also concerned about proposed new subsection (2)(g) in Amendment 771, about providing
“publicly available information on assisted dying”.
How does that vary from what is considered advertising, which is explicitly ruled out in other parts of the Bill?
The key point of my amendments links to this almost becoming its own service within the NHS. Various clauses start to remove powers from the voluntary assisted dying commissioner. This service would start to appoint the panels, and at the moment it is taking up all the training, licensing and all those different things. It is my understanding that this does not happen in the NHS today. What we actually get, and what I propose with my amendments, is that, for a start, we have a separate regulator through the Care Quality Commission, and that the General Medical Council undertakes the roles that it does for other parts of what happens in the NHS today. If the noble Lord, Lord Birt, brings this back on Report then I hope he will think more carefully about how to make this practicable, because I hope the Minister will say it is simply not operable, even if well-intentioned in what the noble Lord is seeking to achieve.
The noble Lord, Lord Mawson, has just started talking about the East End of London. It is important that noble Lords consider carefully not just the evidence that has been given to this House but evidence outside about the real concerns of people from BAME communities. It is evident that people in those communities seem particularly worried about this, and that has been communicated directly to this House through witnesses. Instead of not trusting the NHS as it is today to give treatment, imagine, as you go in and are unsure, your already overworked GP saying, “Here you go; here’s some information. Someone can hold your hand”. I worry that too many people would stay away from the NHS when they desperately needed treatment in other aspects of their lives, whether in addressing prostate cancer or the other rare cancers that we debated in the Chamber last week.
I remind noble Lords—I appreciate that this is probably the third time I have said this—that for me this comes back to the practical experience of when the NHS was left to deal with end-of-life care in certain ways. The Liverpool care pathway was so horrific that I cannot in any way see how it could be controlled if we were to adopt the proposals put forward by the noble Lord, Lord Birt. We saw it go badly wrong, and I am pleased that Ministers eventually intervened. It took time, but it did happen.
On these regulations and other aspects of running this service, if we are going to have it, I agree with my noble friend Lord Sandhurst that it should be more of an MoJ focus. Inevitably, it has become a big health focus. It is not clear, from what noble Lords have set out in their proposals, how this interacts with the whole Wales situation. The Bill’s sponsors have, I think, about 12 officials from the Department of Health and Social Care working on the Bill, which is three or four times the number at the MoJ, so there should be some understanding of how this will work. I genuinely hope that the Minister will start to share that, so that this House can make informed choices as we consider such a significant change in what could be the future of our NHS.
Baroness Berridge (Con)
My Lords, I am grateful to the noble Lord, Lord Moore, for answering much of what would have been in my intervention to the noble Lord, Lord Winston. In my 15 years in your Lordships’ House, it has been the usual practice to give way, but I recognise that noble Lords have the prerogative not to accept an intervention. But I find it surprising—and I have never known it before—that the noble Lord is now no longer in his place. That is not in accordance with the advice that the Chief Whip gave this morning that we should treat each other in this House with respect.
The only additional point I make in response to the noble Lord, Lord Winston, who clearly did amazing work on the creation of life—it was on the television as I grew up—and the noble Lord, Lord Markham, who talked about the pathway that midwives give for the safe delivery of that created life, is that it is entirely different to talk about a situation where the state pays for and facilitates lethal drugs to enable a citizen to end their own life.
Looking at the amendment—
Baroness Berger (Lab)
It may aid the Committee to know that, before Christmas, the Minister in the other place indicated via a Statement that the Government were currently developing a palliative and end-of-life care modern service framework for England, and that it is planned publication date was the spring of this year. In that context, I hope that the Government and the Minister here will hear the calls from people—both those who support the Bill and those who do not—that it would be very helpful to us all in the deliberations on this Bill if the framework, its details and funding were provided to this House as soon as possible.
Baroness Coffey (Con)
On the point the noble Baroness made about funding, unfortunately the Minister has now communicated that it will not happen until autumn 2026, which any former Minister knows means 24 December.
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 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.
Baroness Coffey (Con)
My Lords, I tabled Amendment 43, to which Amendments 312 and 340 are consequential, and Amendment 188A, so I will speak to those. Amendment 43 would bring in the term “demonstrably”. I appreciate that noble Lords may think that this is dancing on the head of a pin, but it is my understanding that the use of “demonstrably” is well known in legal practice, and it effectively requires evidence. I appreciate that there are other aspects of the Bill, when it was first introduced, that were set out in specific forms, but they have been replaced by a variety of regulations and other powers, so I think we just need to be clear about what that really means.
Being informed conceptually is meaningless unless we can establish that the person can demonstrate to healthcare professionals and others that they understand assisted dying, they understand the process and they are absolutely committed to this journey on which they go. The Bill currently requires that certain matters be explained and discussed, but it does not require evidence that the patient has understood them. I appreciate that one of the things about the current Clause 3 of the Bill is that the Mental Capacity Act 2005, which is at the MoJ level but is used in the NHS, requires in effect only a balance, rather than something much firmer, in terms of probabilities of understanding.
It is important to understand the impact of the lethal drugs that people are going to be given, and my noble friend referred to international examples. In Victoria in Australia, and in Oregon in the USA, there are firmer elements of how it can be demonstrably identified and verified that this decision is being made. It should also be recognised that we need to make sure that the doctors setting this out may say, “Your death is actually going to be quite straightforward. It may take longer, but it may not be as painful”. I accept that people on this journey are close to dying, but they need to understand the risks and how that comes about. We have not yet got into the detail of understanding which drugs are going to be used in this process.
One of the reasons I tabled the amendment on Montgomery compliance is that there was a significant ruling to do with liability and negligence. Back in 2015, the Supreme Court effectively made sure that a patient-centred focus became the norm. There was a more recent ruling in the case of McCulloch in 2023. In 1985 the House of Lords judges spoke about the professional basically making the decision, whereas the key ruling in the 2015 case, and the principles behind it, show that case law has helped to evolve what has ended up becoming guidance. We should be clear in this Bill about the exact approach that we want to have. I appreciate that this may seem a bit nebulous to the Minister, but I tabled it as a probing amendment.
In the case of McCulloch, the NHS basically said, “We’re more or less back to Bolam”, which was the original test. I know that the noble Baroness, Lady Freeman of Steventon, had to leave early, but this is one of her key areas of expertise; she teaches this in different places around the country, including in the NHS. One of the presentations that she shared with me shows that the director’s advisory role involves dialogue, the aim of which is to ensure that there is an understanding of the seriousness of a condition. The information provider has to be comprehensible. The doctor’s duty is therefore not fulfilled by bombarding the patient with technical information that they may not reasonably be expected to grasp, let alone by routinely just demanding a signature on a consent form.
I am trying to make sure that, instead of just relying on case law that may change, we end up being very clear about the need for a patient-centred focus and the principles on which we expect this process to happen. The other aspect, which we will get into a bit later, is that I am just trying to explore what this looks like for the person involved, at a pretty scary time of their lives, if we go down this route. I am afraid I have seen it happen too often with things such as DNR: patients are not necessarily given good advice and are told that the doctor knows best. I want to be crystal-clear that somebody who is going through a difficult moment needs to be aware of not only options but risks, and what the balance might be on whether to go with a lethal dose of certain drugs or to take a different route in order to end their life in a good way. That is why I have proposed these amendments.
Baroness Lawlor (Con)
My Lords, my Amendments 55, 246, 319, 342, 387, 453 and 513 are all about the same thing. They are designed to ensure that those contemplating assisted suicide fully understand the effects on their bodies of the drugs that they will be given and know about possible complications. As it stands, Clauses 12(2)(c)(iv) and 12(2)(d) merely require that doctors explain how the drug will kill them and that they discuss what ought to be done in the event of complications. The Bill does not require any sort of explanation about what these complications may be or how likely they are to occur.
Lord McCrea of Magherafelt and Cookstown (DUP)
That is very helpful, and I trust the noble Lord, who is now nodding, will take that into consideration.
Baroness Coffey (Con)
The points that the two other noble Lords have made are due to guidance in 2020 which was put in place only as a consequence of the 2015 ruling by the Supreme Court which we discussed earlier. The guidance before 2020 was not what is being said now, and that is part of my point about putting this in the Bill.
Lord McCrea of Magherafelt and Cookstown (DUP)
I thank the noble Baroness. I realise that my time is up, but I draw to a close by asking noble Lords to notice the emphasis on GMC guidance. Guidance is not the law. The GMC itself states in its preamble that its guidance is intended to help doctors
“practise ethically and in line with law”—
it cannot make the law. It goes on:
“If you’re not sure how the law applies in a given situation, seek advice through local procedures, consult your defence body or professional association, or seek independent legal advice”.
It says finally:
“The professional standards describe good practice, and not every departure from them will be considered serious”.
That is equally true for NICE guidance as well.
Baroness Berridge (Con)
The noble and learned Lord just referred to a civil suit. If I remember correctly, from the Public Bill Committee in the House of Commons, this Bill fundamentally changes the availability of civil remedies in tort, with the additional criteria that the practitioner is protected as long as they are acting in good faith. I merely raise that for the noble and learned Lord so that the record is correct.
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.