Public Bill Committees

The Committee consisted of the following Members:

Chairs: † Peter Dowd, Clive Efford, Sir Roger Gale, Carolyn Harris, Esther McVey

† Abbott, Jack (Ipswich) (Lab/Co op)

† Atkinson, Lewis (Sunderland Central) (Lab)

† Campbell, Juliet (Broxtowe) (Lab)

† Charalambous, Bambos (Southgate and Wood Green) (Lab)

† Francis, Daniel (Bexleyheath and Crayford) (Lab)

† Gordon, Tom (Harrogate and Knaresborough) (LD)

† Green, Sarah (Chesham and Amersham) (LD)

† Hopkins, Rachel (Luton South and South Bedfordshire) (Lab)

† Joseph, Sojan (Ashford) (Lab)

† Kinnock, Stephen (Minister for Care)

† Kruger, Danny (East Wiltshire) (Con)

† Leadbeater, Kim (Spen Valley) (Lab)

† Malthouse, Kit (North West Hampshire) (Con)

† Olney, Sarah (Richmond Park) (LD)

† Opher, Dr Simon (Stroud) (Lab)

† Paul, Rebecca (Reigate) (Con)

† Richards, Jake (Rother Valley) (Lab)

† Sackman, Sarah (Minister of State, Ministry of Justice)

† Saville Roberts, Liz (Dwyfor Meirionnydd) (PC)

† Shah, Naz (Bradford West) (Lab)

† Shastri Hurst, Dr Neil (Solihull West and Shirley) (Con)

† Tidball, Dr Marie (Penistone and Stocksbridge) (Lab)

† Woodcock, Sean (Banbury) (Lab)

Lynn Gardner, Lucinda Maer, Jonathan Whiffing, Committee Clerks

† attended the Committee

Public Bill Committee

Wednesday 26 February 2025

(Morning)

[Peter Dowd in the Chair]

Terminally Ill Adults (End of Life) Bill

Will everyone ensure that all electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room. We will continue line by line consideration of the Bill. I gently ask people to abide by my exhortations yesterday.

Clause 3 Capacity

I beg to move amendment 322, in clause 3, page 2, line 13, at end insert— “except that— (a) for the purposes of an assessment of capacity under this Act, a person must be assumed not to have capacity unless it is established they do have capacity, and (b) section 1(3) of the Mental Capacity Act 2005 shall not apply.”

This amendment reverses the burden of proof in the Mental Capacity Act, so that those assessing a person’s capacity would not be able to assume that the person has capacity without evidence.

With this it will be convenient to discuss the following: Amendment 49, in clause 3, page 2, line 13, at end insert— “(2) The burden of proof for an assessment of a person’s capacity is the balance of probabilities as required under section 2(4) of that Act.

(3) For the purposes of any such assessment, the principles set out in subsections (2) to (4) of section 1 (The principles) of that Act apply.”

This amendment would set out the burden of proof for capacity assessments as being the same as the Mental Capacity Act 2005 and apply the principles from subsections (2) to (4) of section 1 of the Mental Capacity Act 2005. Amendment 50, in clause 3, page 2, line 13, at end insert— “(2) An assessment of a person’s capacity under this Act must include, but is not limited to, an assessment that the person understands— (a) the options for care and treatment of the terminal illness, including— (i) the extent of prognostic certainty of their illness or condition, and (ii) the likely effects on day to day functioning, symptom management, and pathway to and experience of death of— (A) relevant and available care and treatment including palliative care, hospice or other care, (B) withdrawal or absence of care and treatment, and (C) requesting assistance in ending their own life under the terms of this Act.

(b) a decision to proceed under this Act does not prevent or make unavailable any care and treatment provision that would normally be provided.

(c) the person’s decision to proceed under this Act must be theirs alone and not bound or directed by the views or decisions of others.

(d) the person is able to change their mind at any stage of the process for requesting assistance to end their own life under the provisions of this Act, regardless of previous decisions.

(e) a decision to proceed under this Act will lead to the provision of a substance that is reasonably expected to end someone’s life following administration and is reasonably expected to be irreversible.

(f) relevant legal consequences from proceeding with a request for assistance to end their own life, including life insurance and categorisation of death certification.”

This amendment would set out certain non exhaustive requirements for a finding that a person has capacity. Amendment 398, in clause 3, page 2, line 13, at end insert— “(2) The following provisions of the Mental Capacity Act 2005 shall not apply to this Act— (a) sections 1(2) to (4)

(b) sections 2(2) and (4).

(3) Section 2(1) of the Mental Capacity Act 2005 shall apply to this Act as if it read as follows— ‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter.’

(4) A person shall be considered not to have the capacity to make a decision to end their own life unless it is proven beyond reasonable doubt that they do have that capacity.”

This amendment disapplies several principles of the Mental Capacity Act: the presumption of capacity, the duty to help someone reach capacity, the irrelevance of an unwise decision, the application of the balance of probabilities, and the diagnostic test. It retains the functional test of capacity and requires that capacity be proven beyond reasonable doubt. Clause stand part.

It is a pleasure to serve under your chairmanship, Mr Dowd. I accept that we had a long debate on issues relating to mental capacity in respect of the amendments tabled by the hon. Member for Richmond Park, but we heard in oral evidence significant representations and concerns regarding how the Mental Capacity Act 2005 would work in connection with assisted dying. The purpose of the amendment is to reverse the burden of proof in relation to capacity.

In general—rightly, as I have said previously—a person is assumed to have capacity unless it is shown that they do not. As we have heard, that is a deliberately low bar in order to preserve the basic human right to participate in society and to ensure that normal daily life does not require us all to prove that we have capacity every time we make a decision. The downside of that assumption, however, is that in situations of limited or unreliable evidence, or a very borderline case, the person has to be assumed to have capacity. It is surely clear that that could put many people into real danger if such an approach were taken with assisted dying.

We should not be afraid to say that a person who is terminally ill is potentially vulnerable. Depression and stress are common and understandable responses to a terminal diagnosis and, whether we like it or not, some people in our society will prey on the fragile for their own gain. Our job is to confront the risk of someone being given access to an assisted death not because that is their considered wish, but because no conclusive evidence is available to the doctors at the time of the assessment, or because someone is controlling or coercing that person and able to persuade them in favour of an assisted death that they do not truly want by hiding any signs of their impaired capacity until it is too late.

On previous amendments, I have spoken from my personal perspective. As parents of a child with a learning disability, our greatest concern is what will happen to our child after we have gone. That is the principal thing—the sole thing, I think—that keeps my wife and me up in the night: what will be that determination for our daughter one day? I hope that her twin will remain with her, and that her twin will be the person who makes those decisions for her, but that may of course not be the case. I know that we may have to entrust the state or others to make those determinations for her in due course.

Every parent of a child with a learning disability considers that determination every day. I know that it weighs on their minds not only in connection with this clause; the decisions about their child will also weigh on their minds when we get to clause 4. I am not talking about my daughter’s case, because she does not have enough capacity, but for those people who do have enough capacity—we know from the evidence that the majority of people with a learning disability do have enough capacity—the decisions that may be made for them in due course will weigh on their minds.

In those circumstances, I suggest it is appropriate and reasonable that the assisted dying process maintains the other principles of the Mental Capacity Act, but reverses the presumption in favour of capacity in order to keep people safe. We have heard that doctors are familiar with the Act, including in cases where people sometimes do and sometimes do not have capacity. On that basis, it is not a great leap for them to look for evidence that a person does have capacity, rather than the opposite. That is a normal exercise of their judgment. It is a compassionate and common sense approach.

I remind Members of what I have said previously about the position of the Law Society: the issue of what capacity should mean, and how to assess it, is central to the Bill. The Law Society considers that the Bill should be clearer in its approach to capacity for the purposes of ending a terminally ill person’s life. Although expert opinion may reasonably differ on whether to use the Mental Capacity Act approach or to introduce a stand alone definition, the utmost clarity is required if the Bill’s safeguards are to be robust and effective. The Law Society’s recommendation is that before the clause becomes law, a comprehensive consultation should be undertaken to allow relevant experts to share views on the appropriate definition of capacity for the purpose of the Bill.

I will not quote everything again—I have quoted it all previously—but we have heard oral evidence on this matter, including concerns about how the Mental Capacity Act may be interpreted, from Professor House, through Baroness Falkner, Fazilet Hadi, Dr Hussain, Chelsea Roff, Professor Owen and Dr Price, to Dan Scorer of Mencap. My amendment is a compassionate and common sense approach that would provide reassurance to members of the public. I invite the Committee to support it.

Amendment 398, tabled by the hon. Member for Reigate, goes further than my amendment, and beyond its scope, but I have some sympathy with it. I will repeat some of what I have said previously, in that I remind the Committee of the statutory principles of the Mental Capacity Act: “A person must be assumed to have capacity unless it is established that he lacks capacity…A person is not to be treated as unable to make a decision unless all practicable steps”— that remains a grave concern of mine— “to help him to do so have been taken without success”, and a person “is not to be treated as unable to make a decision merely because he makes an unwise decision.”

I remain happy to stand corrected, as I have continued to ask for clarification on this matter, but my point that doctors or other professionals would have to take all practical steps to help them to make a decision related to assisted death has not been challenged. The matter was clearly considered to some degree previously, given that clause 62 of the Mental Capacity Act 2005 states: “For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961…(assisting suicide).”

I also challenge whether the Bill’s authors have considered all the scenarios outlined in chapter 3 of the Mental Capacity Act code of practice, entitled “How should people be helped to make their own decisions?”, and particularly those relating to the involvement of family members and carers. Similarly, in chapter 4, “How does the Act define a person’s capacity to make a decision and how should capacity be assessed?”, the code states at paragraph 4.50: “For certain kinds of complex decisions (for example, making a will), there are specific legal tests…in addition to the two stage test for capacity.”

Those tests are laid out, but they do not include this scenario.

As I did yesterday, I refer to the Equality and Human Rights Commission paper provided to Members in advance of Second Reading: “A vital factor in determining how to manage access to assisted dying will be the concept of mental capacity in the context of a decision of this nature and gravity. It will be important to ensure that all decision makers involved in the process have a full and clear understanding of the law around mental capacity under the Mental Capacity Act 2005. Sensitive consideration must be given, in particular, to the interaction between mental capacity, mental health issues, learning disabilities and conditions such as autism. Clause 30 of the bill states that the Secretary of State ‘may’ issue codes of practice…However, it does not oblige them to do so.”

For those reasons, I remain concerned about continuing to use the full definition under the Mental Capacity Act 2005. I therefore commend the amendment to the Committee.

I thank my hon. Friend the Member for Bexleyheath and Crayford for his sensitive and well presented amendment. I have a couple of things to say about it.

My hon. Friend says that the Mental Capacity Act is a low bar, but in the Act it is important that when we assess people for mental capacity we look at the gravity and complexity of the situation, and therefore take more consideration of deeper understanding of the issues if the gravity of the decision is very enhanced. There is scope within the Mental Capacity Act to take in these types of assisted dying assessments.

I hear that. There are different decisions, whether it is buying a coffee or seeking an assisted death. Would my hon. Friend concur that, for some individuals in those scenarios who may be by themselves because of the circumstances of their lives and about whose capacity there may be doubt, the doctor must presume in the first instance that they have capacity, and that the doctor must assist them in making a decision?

Yes, I totally accept that. The Mental Capacity Act is set so that we assume capacity and look for evidence of lack of capacity. The great danger with the amendment is that it would change a whole raft of very well used provisions. As Professor Whitty said, the Act is used up and down the country every day; I have used it myself many times, and taught it as well. If we change the emphasis from the presumption of capacity to the presumption of incapacity, which is what my hon. Friend is suggesting, that is a major change in the Act.

Given what my hon. Friend has just said—that he accepts the premise of my hon. Friend the Member for Bexleyheath and Crayford that the doctor would have to assist—can he help me to understand where that leaves the issue of autonomy if a doctor is, as he has agreed, allowed to assist in the decision?

The way the doctor assists, if making a mental capacity assessment, is to try to tease out the four concepts. Does the patient understand what they are being asked to agree to? Sometimes mental capacity assessments are very straightforward and last five minutes; sometimes they last an hour. I have done one that lasted about 90 minutes because it was really important to tease out whether the patient genuinely understood what they were doing. That is the sort of assistance I am talking about. It is not about trying to persuade them to make a decision that I think is the right decision; it is just making sure that they understand it, can remember it and so on.

How does my hon. Friend respond to not one, not two, but multiple witnesses, including the Royal College of Psychiatrists, saying, absolutely contrary to what he is saying, that the Mental Capacity Act is not the right bar and that the bar is too low?

Well, that was disputed by other psychiatrists. We are asking questions about whether the Mental Capacity Act is safe and correct for the Bill. This whole Committee is about making the Bill safe. None of us would dispute that. However, I think that if we accept the amendment, the Bill will become less safe because the amendment would change a massive piece of legislation and therefore have a number of repercussions that we do not understand.

Chris Whitty made the same point that the hon. Gentleman has just made: that there would be knock on effects and that the Mental Capacity Act works very well currently. Does the hon. Gentleman acknowledge that Chris Whitty himself misrepresented the Mental Capacity Act in the evidence he gave to the Committee? He had to write to us subsequently to clarify his comment, and his clarification contradicted the hon. Gentleman’s implication that the Mental Capacity Act has different thresholds for different levels of decision. Does the hon. Gentleman acknowledge that it does not? The Act has one threshold: capacity as it defines it. Some doctors may have longer conversations than others depending on the severity of the case, but the threshold is the same—Chris Whitty misrepresented it.

I agree that the threshold is the same: does the patient have capacity or not? That is the single threshold. We often do mental capacity assessments for inheritance, control of bank accounts and that sort of thing; sometimes we do a very quick mental capacity assessment about the refusal of treatment. How long we take depends on how important the decision is. I suggest that a doctor assessing someone’s capacity to make a decision to end their life would have a serious, long discussion—up to 90 minutes, or possibly even two hours—to make sure that the doctor is convinced that the patient has capacity. The threshold is the same—it is about whether they have capacity—but that does not mean that the conversation is the same. In clinical terms, it is very clear that a conversation on those grounds would be much more involved than, for example, whether a person sees a dentist or not, or other conversations like that.

I totally understand the concerns that the amendment has been tabled to cover; however, my main point is that if we accept the amendment, it will make the Bill less safe. The reason for that is that, as I have said before, if we change something that is well used, and repeatedly used, it will make the interpretation much more complicated. We will have to re train all the doctors and, I think, it will not protect patients.

At risk of repeating something said in a previous sitting, does the hon. Gentleman accept that the amendment is not trying to amend the Mental Capacity Act itself, and it is not trying to change how the Mental Capacity Act is used in the majority of situations in which it is already used? All it is trying to say is that in this particular circumstance the Act needs to be applied in a different way. We are not trying to rewrite the Act in itself or any aspect of the way in which it is currently used.

I understand what the amendment is trying to do; my argument is that it will not achieve that because it will muddy the waters of a mental capacity assessment, which will make how we do it less safe. I would also like to return to Professor Whitty’s comments and to say that in the majority of cases mental capacity is very clear. It does not actually take very long to assess whether someone has mental capacity.

Will the hon. Gentleman give way?

Can the hon. Gentleman be allowed to fully answer the questions that the hon. Member for East Wiltshire and the hon. Member for Richmond Park asked, before we have an intervention on another point?

It is really important to understand that for the majority of people mental capacity can be assessed reasonably quickly because it is very clear whether they have it or do not have it. What we are talking about, I think, is a small proportion of patients in which it is unclear whether they have mental capacity. There is scope in the Bill for those circumstances, when the patient should be referred to an enhanced level of mental capacity assessment by a psychiatrist or a psychological nurse. In that way, it makes it much safer. We do not need to redesign the Act for that small number of patients because we already have a very safe route to assess capacity.

I thank the hon. Gentleman for giving way; he has been generous with his time. I do not know whether the hon. Gentleman has seen the evidence from Alex Ruck Keene KC on mental capacity. He sets out very clearly the myths around mental capacity, one of which is that mental capacity is well understood. He argues that it is not. How would the hon. Gentleman respond to that?

I think that in most cases mental capacity is very well understood, and it is very clear, as I have said. I would say that, as practising clinicians, almost every GP has to do it. I would not sign up a doctor in training if they could not do it. I think it is a little bit rich to suggest that we cannot assess capacity. I agree with many of the comments that have been made about assessing capacity in more difficult cases for most doctors, and I think we do need an avenue, in those situations, to get further opinions.

The hon. Gentleman said it would be rich for people to say that capacity cannot be assessed. That is not the case. I am not convinced about that, and I am not sure, from the evidence I have seen, that anybody is saying that anybody is not capable of assessing capacity per se. Would the hon. Gentleman agree that the argument is about assessing capacity for this Bill in particular? That has not been tested. The Royal College of Psychiatrists is very clear, as are many other experts, including legal experts, that the Bill has not been tested for that purpose. Therefore, the Mental Capacity Act does not meet the purpose for the Bill.

Order. I will give people the opportunity to explore this issue but, as I have said, interventions are not mini speeches.

I feel that the Committee has been through these points quite extensively. There is clearly a disagreement in our beliefs; I accept that, but it is very important to make the Bill as simple as possible, because that is the best safeguard. I believe that the Mental Capacity Act is the right test for whether people have capacity. I reiterate that if there is a doubt in the clinician’s mind, there should be an avenue to get an expert opinion on capacity.

Is my hon. Friend reassured, as I am, that although we are focusing here on one conversation, we know from the provisions in the Bill that there will be multiple conversations? There will be a doctor, a second doctor, a psychiatrist, and then oversight by an expert panel. It is not just one assessment of capacity; there are multiple occasions. Does that reassure my hon. Friend, and hopefully other colleagues?

It does reassure me, and I think it should reassure other Committee members. Having eight different people doing a capacity assessment is a very thorough safeguard for capacity. We have gone through the arguments many times in this Committee, but I do not feel that changing the polarity of mental capacity will do anything to make patients in this situation any safer. That is why I do not agree with the amendment. For fear of being interrupted any more, I think I will leave it at that.

I apologise for arriving late; thank you for calling me to speak anyway, Mr Dowd. I rise to speak in favour of amendment 50, which stands in the name of the hon. Member for Runnymede and Weybridge (Dr Spencer) and to which I have also put my name. I am conscious that we have been through many of the arguments about the Mental Capacity Act today and at an earlier sitting, but I am keen to press the amendment to a vote, because I think it would address some of the issues that have arisen.

The point of dispute appears to be whether the Mental Capacity Act, as it is currently operated for all the purposes for which it is used—I have no doubt that it is a very effective piece of legislation that is widely used and understood by clinicians everywhere, as the hon. Member for Stroud says—is the appropriate measure and tool to use for the Bill. This decision that people are embarking on is like no other, so I think it right and proper to consider whether the Act is the appropriate way to measure whether people are able to make it.

It is useful to reflect on the experience of the hon. Member for Runnymede and Weybridge, who drafted the amendment. I am conscious of the comments that the hon. Member for Ipswich made yesterday about poorly drafted amendments. My understanding is that the hon. Member for Runnymede and Weybridge has extensive expertise in the area; he is an expert in mental capacity assessment, and I dare say that if he were in the room he would have many useful and interesting things to say. That is why I think his amendment bears greater weight, to the extent that one Member’s amendment should be regarded as any better than another’s.

Key to the Mental Capacity Act is the capacity test, which is about the ability to understand, retain, use and weigh the relevant information. The amendment attempts to address what it means to make an informed decision. Dr Annabel Price, who gave oral evidence to the Committee in her role with the Royal College of Psychiatrists, said that people planning to make the decision of seeking an assisted death “would need to be able to understand the impact of the substance they are taking and what the likely positives and negatives of that are…The informed consent process is different from a refusal of treatment, and the informed consent process feeds into the capacity assessment.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 277, Q361.] The point, which has come up in previous debates, is whether an informed decision to refuse treatment can be regarded as the same as an informed decision to end one’s life. My personal view is that the two things are quite different, and that a different standard of capacity should therefore be brought to bear on the decision.

I support amendment 50 because it sets out in detail how the Mental Capacity Act should be used specifically in relation to this decision. As I said in an intervention on the hon. Member for Stroud, it would not change the Act or tamper in any way with how it is currently used; it would merely specify the particular ways in which it should be used in relation to the decision.

I hear what the hon. Member said about doctors’ use of the Act, as well as what the chief medical officer said. I am also conscious of what the hon. Member for Bexleyheath and Crayford has said about the variety of experience that he has, as a parent, with professionals’ understanding of the Act. That came across in a lot of the oral evidence. As the hon. Member for East Wiltshire said, the chief medical officer himself had to clarify the remarks that he made to the Committee in oral evidence. The chief medical officer implied that there were different ways of applying the Act depending on the decision to be made, but there are not—that was a very clear clarification. That implies that there is a difference in the way doctors approach the use of the Act. We cannot have a difference of approach when it comes to a decision of such momentous importance as the decision whether someone has the capacity to choose to end their life.

The amendment reflects the fact that there is value in attempting to standardise how the Mental Capacity Act should be used in relation to the decision. That is why we should agree to it: it is important that Members of this House make a clear statement in the Bill about what we expect doctors to do as they approach an assessment of capacity. We should specify the minimum understanding of capacity to choose an assisted death, which includes an understanding of the likely process of all treatment options, including non treatment and prognostic uncertainty.

In her evidence, Dr Rachel Clarke said: “I would not be the first person to make the observation that sometimes doctors can be very pleased with their own abilities at a particular practice, and that practice might be having a conversation where you are assessing someone’s capacity.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 80, Q103.] Doctors have different assessments of their own ability to assess capacity. That is why a standardised approach, as set out in amendment 50, is so important. I stress how important it is that Parliament be the place where the standards for what MPs expect as an assessment of mental capacity are set. We should be the ones to determine them, rather than leaving them to the vagaries of individual clinicians.

The assessment of capacity and the explanation of treatment options to the person considering an assisted death need to include the extent of prognostic certainty about their illness or condition. We spoke yesterday about the difficulty of knowing whether someone has six or 12 months left to live, and of knowing the extent to which they are going to deteriorate. We also covered in detail the relevant and available care and treatment, including palliative care, hospice care or other care. That needs to be part of the conversation about somebody’s capacity to make the decision.

Amendment 50 states that “a decision to proceed under this Act does not prevent or make unavailable any care and treatment provision that would normally be provided.”

It would therefore be clear that somebody had assessed the full range of their options. The amendment makes clear a fundamental issue that I do not think is otherwise covered by the Mental Capacity Act, or at least not to this level of specificity, which is that “the person’s decision to proceed…must be theirs alone and not bound or directed by the views or decisions of others.”

We have talked about the importance of that issue in relation to the Bill as a whole, but it would be valuable to include it in the clause as a specific requirement for assessing somebody’s capability.

Doubts have been expressed across the Committee about whether the Bill goes far enough in assessing the extent to which somebody might be under duress or coercion. Putting such a provision in the Bill, as part of the capacity assessment, would be an important and essential safeguard. Once someone has made the decision to seek an assisted death, is the doctor or assessing person confident that the person could unmake the decision or change their mind at any stage?

As my hon. Friend the Member for Spen Valley said, there are eight different opportunities for assessing capacity in the process, the last of which is before the patient takes the medicine that will end their life. At all those stages, it is possible to stop the process, and the patient is in total control.

I do not disagree with anything in amendment 50, but I believe that everything in it is already in the Bill, under other clauses. I do not think that the amendment would add anything to the Bill; it would actually make assessing capacity more confusing, from a legal perspective.

What I would say in reply to the first part of the hon. Member’s intervention is that there are plenty of opportunities for the person to change their mind—although I might slightly indelicately point out that there will eventually not be a further opportunity; that is the point of what we are trying to do—but that does not necessarily mean that the person has the capacity to make the right decision at each of those opportunities. That is what the doctors will need to assess.

I return to my earlier point: it is important that Parliament specify, by way of this amendment, precisely what it means by assessing capacity. In the context of all the evidence we heard that there is not necessarily a standardised approach across the medical profession, it is important that the standardised approach be specified in the legislation. Clause 3 is the appropriate place to specify it.

The other major point is that patients need to understand the process by which the assisted death will be enabled. The Bill states elsewhere that it will be by the ingestion of an “approved substance”. It is important that we understand exactly what that means, or what it might mean. We will doubtless get on to talking about the approved substance and the proper legislation around its use.

We did not speak much during the oral evidence sessions about the use of the approved substance, but it is important that people understand that any medical procedure can fail, including with an approved substance, and we do not know how long the substance will take to be effective. Nor do we know what the patient’s experience will be after taking the approved substance. It is important that they understand, to the extent that it is possible for a doctor to give them the information, what they are undertaking.

In his evidence, Professor House said: “It is a striking feature of the Bill that informed consent is not really specified properly. The doctor is required to ask the person what they want to happen in the event of complications without having previously explained to them what all the complications might be…There is no standard informed consent form related to the Bill, for example—of the sort that you would expect to sign if you were having a serious intervention in the NHS.”––[Official Report, Terminally Ill Adults (End of Life) Private Member’s Bill Committee, 29 January 2025; c. 169, Q216.] He said that informed consent was very underspecified in the Bill. The amendment could start to address that. It is important that people have the capacity to understand what they are undertaking—not just that they are choosing an assisted death, but all the potential attendant risks and complications.

I return to my opening point, which is that it is important that Parliament specify a standard by which mental capacity can be assessed in relation to this specific decision. I feel that I have made the point a number of times, but I will make it once more: we are not proposing to rewrite the Mental Capacity Act or tamper in any way with how it is currently used. We are merely setting a higher bar—a higher standard for how it should be applied in this particular case, because of the very specific nature of the decision that patients are being asked to make in this particular circumstance.

I will pick up on some of the points to which my hon. Friend the Member for Stroud referred, given his expertise. We heard from three senior psychiatrists during the evidence sessions, who were very clear; I have already mentioned much of their evidence. The Royal College of Psychiatrists’ written evidence states: “It is the RCPsych’s view that the MCA is not sufficient for the purposes of this Bill. Extensive consideration needs to be given to what an assessment of mental capacity should consist of for AD/AS prior to the passing of legislation and, indeed, whether a determination through such an assessment can be reliably arrived at in this novel context.”

It goes on to say that the capacity to end one’s life is “entirely different” from assessing for the capacity of deciding treatment.

The Bill moves us into new territory. We need a definition that meets the criteria of what we are assessing, which is to end one’s life. That has never been applied in this country. The Mental Capacity Act, as it stands, requires assessors to presume that someone has capacity until incapacity can be proven, as my hon. Friend the Member for Bexleyheath and Crayford referred to in moving amendment 322.

Dr Annabel Price, Professor Allan House and Professor Gareth Owen all expressed doubts about the use of the Mental Capacity Act to assess whether a person is in a fit state of mind to undertake assisted dying. Because there is nothing in the current medical assessment that requires careful explanation of these factors, there is a real worry that there will be no opportunity to change them. It is outside the experience of the Mental Capacity Act, the Court of Protection, the associated research and practitioners on the ground.

Professor Owen said: “I have looked at mental capacity a lot in research, and there is no experience”.

The reference to the Mental Capacity Act in clause 3 puts us into an area where there is no experience of the central capacity issue under consideration. He said: “It is very important that Parliament be clear eyed about that.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q287.] He further said that we are in “uncharted territory”, because the ideas in the Bill are very novel. That is the hub of the Bill: it requires assessors to assume capacity as a starting point. To make the Bill the safest in the world, that is not the yardstick that we should be applying, according to very senior psychiatrists across the country.

Alex Ruck Keene KC also provided evidence to the Committee. He set out some of the myths in a video. There are a few things in this for me. One is the article in The Telegraph, which senior psychiatrists alluded to, that suggested there was a shortage of specialist psychiatrists. We have already had a conversation about the shortage of judges, but we are now having a conversation about the shortage of psychiatrists. Should the measure remain in the Bill as it stands? I would like to understand from the Minister whether that is something that has been assessed, given that we do not have an impact assessment.

Alex Ruck Keene referred to the National Institute for Health and Care Research, which funded a number of research projects in 2022 under the umbrella topic of implementing the Mental Capacity Act in practice—the rationale being that “The Mental Capacity Act…is designed to empower and protect people who may lack the mental capacity to make their own decisions about their support and treatment, ranging from everyday issues to more serious, life changing decisions.”

Evidence has highlighted several aspects of the way that the assessments are being carried out that are not compliant with the Mental Capacity Act. If we already have issues with how the Act is being implemented in the everyday work of the NHS and psychiatrists, how many mistakes will be made if the Bill goes through as it is? How much potential is there for mistakes to be made when assessing the capacity of those who are most vulnerable?

The Care Quality Commission in its most recent “State of Care” report in October last year said: “The Mental Capacity Act 2005 (MCA) directly affects the lives of millions of people. Everyone providing care to people over the age of 16 must be familiar with this vital piece of legislation, which introduced rights and protections for people who may lack mental capacity. A decade after the House of Lords report, we continue to find a lack of understanding of the MCA among providers.”

That is the most recent research, and it is telling us that we have not got this right.

The Mental Capacity Act was passed over 20 years ago in 2005, but is still not understood properly or being applied for the reasons it was supposed to be. If we have not got that right in 20 years, how can we as a Committee be assured that the legislation will be applied properly when it is applied to something that it has never been applied to before and that has not been tested? How can we say that we should be rejecting an amendment that would change that and raise the bar for people? Ultimately, this affects people who are vulnerable; I will come on to that in more detail in the next group of amendments.

That is a real concern, which is why I urge Committee members to support amendment 322 to get the safeguards right. We spent hours talking about capacity, but the amendments to clause 1 were not accepted. This amendment comes from experience, and I really appreciate the personal experience of my hon. Friend the Member for Bexleyheath and Crayford on this issue, because he speaks about the reality. We are not the experts, and we should be relying on the experts who give us their witness testimony.

In the evidence from Mencap and in large swathes of the written evidence, we have heard grave concerns from communities representing people with learning disabilities about how this legislation was enacted during covid, particularly with “do not resuscitate” notices. Evidence shows that people with learning disabilities were far more likely to have those placed on them. The written evidence we have suggests that that is due to a misinterpretation of the Mental Capacity Act or bias within the medical community. Can my hon. Friend comment on that?

My hon. Friend makes a very valid point. Another issue that we have not got to yet, but that we will be looking at, is the doctors who do not want to take part in this process. We must consider whether there will be a bias; he is right to point that out. Will there be a subconscious bias towards helping people? My hon. Friend the Member for Stroud suggested earlier that doctors assist a person to reach a decision, according to the Mental Capacity Act. This is the crux of it for me: when a doctor is assisting a person in their best interests to come to a decision about treatment, for example, that is a different test from what we are testing here.

I share the concerns of my hon. Friend the Member for Bexleyheath and Crayford about the use of DNRs—what happened during covid to people, particularly those with disabilities, was a disgrace. Does my hon. Friend the Member for Bradford West accept that this is an entirely different situation, however, in that people must actively seek it, be tested multiple times, and express a wish for it? The situation with DNRs involved medical professionals making decisions on behalf of a patient without their input.

I thank my hon. Friend for his intervention. I will be speaking to that in the next group of amendments, so I do not want to go through it in detail now, but I absolutely accept that that was a disgraceful situation—

Order. Can Members please address the Chair?

Apologies. My hon. Friend is right that those were different situations, but I remind him of the evidence that we heard from Dr Jamilla, for example. I am glad that he reminded me of this point, because although what happened in covid was done under different circumstances—I agree that what happened with DNRs was a “disgrace”, in his words—that is where the trust in NHS providers was lost. That leads me on to my next point: where there is no trust, there is vulnerability, and that vulnerability, in turn, affects capacity.

That brings me to what Alex Ruck Keene said about vulnerability. If people feel—as they did during covid-19—that they have been DNR ed and that, as some have said, “They’re going to kill us off!”, then the vulnerability directly impacts on their capacity. I accept that, as my hon. Friend says, these are different situations, but the argument is strong and speaks to supporting this amendment.

There is a myth that mental capacity is well understood, but we have gone through that—there are a lot of myths about mental capacity. The reason that mental capacity is always difficult to assess, according to Alex Ruck Keene, is because 85% of capacity determinations by those who actually understand the law are relatively straightforward—that concurs with the point of my hon. Friend the Member for Stroud—with difficulty arising usually because of not having enough time or not listening to the person. Some research was conducted into the experience of liaison psychiatrists through an interview study across three jurisdictions, which concluded that there are four key sources of difficulty in capacity assessment, spanning both clinical and ethical domains.

Those four sources included, first, a difficulty determining whether the decision is the patient’s own or driven by illness. That is important because we are talking about people who are terminally ill, so their decision making processes may be impacted because of that, or because there is a vulnerability—either could be possible. The 15% of mental capacity determinations that are difficult include for such people. There may also be, secondly, a difficulty in applying ethical principles or, thirdly, a difficulty in avoiding personal bias. Again, that speaks to the point of my hon. Friend the Member for Bexleyheath and Crayford—if doctors are already signed up to this Bill and believe in it, will they have a personal bias? A lot of doctors and psychiatrists—according to the last article I read—are saying that they do not agree with it.

Fourthly, there could be procedural difficulties, including lack of engagement, lack of information to verify facts, and interpersonal conflicts between the patient and the team when “Please assess capacity” belies therapeutic concerns. These concerns speak to what is wrong with the Bill, which is why I will support the amendment tabled by my hon. Friend. I urge all Committee members to support it, because the idea that mental capacity is enough, under the Mental Capacity Act, does not wash.

My fifth myth buster is that,

“the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.”

That was the judgment of Munby J in the 2005 case Re SA, concerning a vulnerable adult with capacity, in respect of marriage. The answer was no. That case really brings home the issue with the Bill as it stands. It is not drafted for this purpose, so I hope that Members will support the amendment.

I rise to speak to my amendment 398. I recognise that much debate about capacity has already taken place, so I will do my best not to be too repetitive, but it is an important topic and I want to cover a few things.

Fundamentally, I consider the bar for the capacity to make a decision to seek an assisted death to be far too low if, as we have already discussed, the approach currently proposed in the Bill is adopted. The Committee has received powerful written evidence that the Mental Capacity Act, as it stands, is not suitable for assisted dying. The Royal College of Psychiatrists says in its written evidence: “It is the RCPsych’s view that the MCA is not sufficient for the purposes of this Bill.”

The former president of the Royal College of Psychiatrists, Baroness Hollins, says: “The Mental Capacity Act has proved very difficult to implement and doctors have not been found to be good judges of capacity.”

The eating disorders expert Chelsea Roff says: “The MCA is not fit for purpose for determinations of capacity in life ending decisions.”

I do not think it is contentious to say that there should be a higher standard for ending one’s own life than for other courses of action. Baroness Hale has called the Mental Capacity Act threshold “not a demanding one.” The Royal College of Psychiatrists says in its written evidence: “While we are of the view that a person’s capacity to decide treatment can be reliably assessed, an assessment of a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding.”

Even if the Mental Capacity Act is working well in some other contexts, it does not necessarily translate well to assisted dying. Professor Gareth Owen told the Committee in oral evidence that although the Mental Capacity Act is quite reliable in current practice, “in areas of decision making where the decision itself is unsettled or conceptually much more profound or novel—I would suggest that the decision to end one’s own life has those characteristics—you cannot expect there to be such levels of reliability.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 239, Q303.] The Mental Capacity Act definition of capacity was not created with such a monumental decision with respect to assisted dying in mind. Although I note Chris Whitty’s recommendation that it is the starting point, I do not think it can be the end point. Further provisions are needed to ensure that it is fit for purpose, given the significance of the decision being made. Professor Owen said: “I have looked at mental capacity a lot in research, and there is no experience of the decision to end one’s own life. It is outside the experience of the Mental Capacity Act, the Court of Protection, the associated research and practitioners on the ground. The reference to the Mental Capacity Act in clause 3 puts you into an area where there is no experience of the central capacity question under consideration. It is very important that Parliament be clear eyed about that.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q287.] Dr Sarah Hooper, a retired oncologist, says that “the patient in question may undoubtedly have ‘capacity’ for most important decisions. However, in the early days after a cancer diagnosis their ability to make clear judgements is nevertheless likely to be impacted. This kind of decision (for assisted suicide), once acted upon, is plainly irreversible. It is a very bad time to make that kind of decision.”

It is true that the Mental Capacity Act is used for decisions to stop life sustaining treatment, but, as Professor Owen said, we should not simply equate that with assisted dying. As he pointed out: “One is a refusal; one is a request. One is traditionally considered to be about bodily integrity—it is the so called shield of the person, or the patient, against the intervention on the body that is being made by the medical profession. You are giving the patient an important right, which is a shield like right. That contrasts with a request for assisted dying, which is a request. You are involving other people in an act that is an act of ending one’s life. That is not something that the medical profession has been comfortable with, going back thousands of years.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 236, Q288.] I also draw attention to a great deal of written evidence making the point that the current Mental Capacity Act is not as well understood by medical practitioners as we hope or expect. Alexander Elphinston, a retired solicitor, says, “from my experience doctors and other medical practitioners often applied the test of mental (in)capacity incorrectly.”

Victoria Wheatley, a palliative medicine consultant, says, “I have observed a tendency to overestimate a person’s mental capacity in the absence of obvious features to the contrary.”

Alan Thomas, a professor of old age psychiatry at Newcastle University, says: “The preferences of the assessor bias the capacity decision towards the assessor’s preference.”

I will move on to the specific issues with the current definition of people who lack capacity under the Mental Capacity Act when applied to assisted dying, all of which my amendment 398 attempts to address. Part of my amendment does exactly the same as amendment 322, tabled and already eloquently spoken to by the hon. Member for Bexleyheath and Crayford, so I will be brief on those overlapping bits.

Under the Mental Capacity Act, there is a starting presumption of capacity. That is too lax a standard, as the Royal College of Psychiatrists says in written evidence. I quote: “The presumption of capacity may be problematic in the context”

of assisted dying, given that the consequence would be the person’s death. This is literally a matter of life and death, and the presumption of capacity must not apply; the work must be done to assess capacity properly and thoroughly. Professor Preston said during the evidence session: “I think the aim is to have that bit of extra concern, so that we do not presume capacity, but instead almost presume that there is not capacity.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 241, Q307.] I think those are wise words, and my amendment and amendment 322 seek to give that protection.

Both amendments also disapply section 1(3) of the Mental Capacity Act on helping a person to make a decision. The hon. Member for Bexleyheath and Crayford has already made his point powerfully about that, so I will not add anything further.

There are some differences where my amendment 398 goes further than amendment 322. First, given the uniqueness and irreversibility of the decision, there should also be a higher threshold of probability. As it stands, a person should be treated as having capacity if that is more likely than not, which is sometimes referred to as the “51% sure” approach. It would be much safer if doctors and judges had to establish beyond reasonable doubt that an applicant has capacity, given the significance of the decision. In my view, 51% sure is just not good enough for such a monumental decision, and amending this part of the Bill would ensure a more rigorous and comprehensive assessment.

Secondly—for me, this is one of the biggest issues with the current approach—the Mental Capacity Act requires an impairment of, or a disturbance to, the mind or brain for someone to be considered not to have capacity, irrespective of whether they can make a decision. Under the Bill currently, even if someone cannot understand, retain or use the information to make a decision—they cannot communicate that decision—they will still be deemed capacitous in the absence of an impairment, or a disturbance, of the mind or brain. In the real world, a doctor could assess a patient who gives the impression of being confused, illogical, erratic or inconsistent—everything about them could scream that they are not in a good place to make the decision—but they will still be considered to have capacity if there is no identifiable impairment of, or disturbance in, the function of the mind or brain at that point in time. That potentially puts those with depression, anxiety, learning disabilities or eating disorders, or even those in physical pain, in danger of being considered capacitous.

In oral evidence, Professor Alex Ruck Keene said, “If I doubt that you have capacity to make the decision to take your own life, or end your life, but I cannot prove it, is it logical or are we required to proceed on the basis that you do?...In other words, I think you cannot understand the information, but I cannot prove the reason that you cannot understand it is that you have an impairment or disturbance.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 90, Q120.] According to his written evidence to the Committee, this means that someone could be approved for assisted dying even if they did not understand the relevant information, as long as they do not have an identifiable impairment of, or disturbance in, the mind or brain. He wrote, “the Committee may well feel that it would be problematic that such a person should be considered to be eligible for the receipt of assistance in dying.”

In a letter to the hon. Member for Richmond Park, Professor Alex Ruck Keene KC said, “no matter how intensive the scrutiny of the person’s capacity, this would not address the issue of the situation where the person appears not to be able to understand, retain, use and weigh the relevant information but that is not caused by an impairment of, or disturbance in, the functioning of their mind or brain.”

That is why my amendment seeks to remove this diagnostic element, so that section 2(1) of the Mental Capacity Act for the purposes of this Bill only would read as, “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter.”

That would provide better protections for this life and death decision, and I hope it addresses the issue raised so powerfully by Professor Alex Ruck Keene KC.

As I close, I would like to make reference to amendment 49, tabled by my hon. Friend the Member for Runnymede and Weybridge, which sets out starkly the deficiencies of the current capacity test if it remains unamended for the purposes of this Bill. If autonomy is what counts, and we are using the Mental Capacity Act as gatekeeper for assisted death, then the Bill in its current form means that: a person is assumed to have a capacity as a starting point; a clinician only needs to be just over 50% sure that a person has capacity; unwise decision making is not taken into account in determining capacity; and supported decision making is acceptable—for example, for those with learning disabilities.

I ask the Committee members whether they are comfortable with that. If not, then as a minimum, amendment 322 should be accepted, but ideally my amendment 398 should also be, as it goes even further to increase the threshold for capacity and it addresses the significant issue with the diagnostic leg of the test. I am pleased to say that Baroness Finlay, who established and chaired the National Mental Capacity Forum, supports my amendment. Unlike the current drafting of the Bill, my amendment requires that a person is not assumed to have capacity in the first instance. It requires capacity to be proven beyond reasonable doubt, that unwise decision making is considered in assessing, and that a person is not helped to make a decision. I hope the Committee will support it.

I am pleased to follow my hon. Friend the Member for Reigate, who set out with incredible clarity the challenges here and the opportunity we have to build on the Mental Capacity Act, and to fulfil its purposes and the purposes of the Bill to ensure that capacity is properly assessed. I will speak to all the amendments in the group very briefly; I certainly will not repeat material points that have been made already. To clarify, I do not propose to push amendment 49 in the name of my hon. Friend the Member for Runnymede and Weybridge to a vote, although I will speak to it briefly. I hope we will vote on the other amendments.

An important point was made—or rather, a confusion was aired—in the course of the debate about the degree to which the Bill currently is simple, according to the tests set by Chris Whitty, or whether it is thorough in its provision of assessment opportunities. I am unclear whether the promoter of the Bill, the hon. Member for Spen Valley, and the hon. Member for Stroud and others who spoke about this point, are themselves clear.

We have heard that there are eight moments in the Bill when capacity is assessed according to the Mental Capacity Act. I am unable to find eight moments at which the patient will be present and a proper Mental Capacity Act assessment will be performed. There are four, as far as I can see: the first doctor’s assessment; the second doctor’s assessment; when the doctor witnesses the second declaration; and the moment at the very end when the drugs are administered. There are four moments at which the patient will be present and the doctor must be satisfied that capacity is present—not eight, as far as I can tell.

More crucially, those are not assessments in any defined sense. We expect the doctor to confirm there is capacity, and one hopes that this will be done very, very thoroughly—it should take 90 minutes, or possibly longer, as the hon. Member for Bexleyheath and Crayford suggested—but it is not clear from the Bill how the assessment will be conducted; there is just the expectation that capacity will be confirmed.

Whether it is four, eight or 20, the fact is that all the assessments currently operate under the terms of the Mental Capacity Act. That is the simple purpose of clause 3. The contention of those of us who are requesting additional tests to be applied and to build on the Mental Capacity Act, if we cannot replace it all together with a proper test of ability as we had hoped, is to ensure that a proper assessment is done that goes further than the, frankly, low threshold of the MCA.

I hope I do not repeat any evidence that has been brought before the Committee already in this debate. I will be brief, but I want to absolutely scotch the suggestion that the Mental Capacity Act is clearly understood by all clinicians, and that it is a tried and tested, well understood, coherently applied, universally interpreted piece of legislation. Although that may be the case for many doctors—let us even say the majority—there is clearly, given the fact that we are having a debate about this today, a division of opinion on this. In my view, that in itself is enough of a reason to build in further safeguards to ensure that if we are using the Mental Capacity Act, it is used properly and appropriately.

I will mention a couple of pieces of evidence that have been presented to the Committee. The chair of the National Mental Capacity Forum, who my hon. Friend the Member for Reigate referred to, cites—from the forum’s annual report last year—

“a lack of awareness and…understanding”

among doctors about how the MCA applies. A 2021 study in the Journal of Medical Ethics found,

“significant variation in practice by doctors and low self confidence in the practice of MCA.”

On tightening capacity assessments, which is what the amendment is trying to do, I would point out that there are a number of amendments coming up that would mandate training for doctors who are registered to assess capacity—for example, amendment 186. In addition, amendment 6 would mandate psychiatric referral if there was any doubt of capacity. Does that not satisfy the hon. Member?

It pleases me but it does not satisfy me. I am encouraged by it, but I am not fully satisfied. Obviously, it is insufficient. The hon. Gentleman and the hon. Member for Spen Valley put great faith in the training that we are going to introduce. Well, I hope they are right. Let us certainly do as much training as we can— likewise, let us get as much data as we can—but the provision set out is not sufficient, not least because the training will be in the application of the Mental Capacity Act, which we are saying, even if properly applied, has all sorts of problems with it, as my hon. Friend the Member for Reigate explained.

Yes to training and yes to the option of the referral—that should be mandatory, and I think there is a proposal to effect that. Every additional safeguard is welcome. It goes back to my point about whether we are being thorough or simplistic. I am not sure. If I think there are four assessments, but the hon. Member for Stroud thinks there are eight, does that not fail Chris Whitty’s test of being simple? If eight is in fact thorough, would nine not be even more thorough? The suggestion that we have hit it at the perfect sweet spot and that to veer one side is to introduce all sorts of bureaucratic hurdles seems unrealistic. Surely we can apply a little more rigour to this exercise.

I know that we have interacted before about our fundamental difference on the ventilator test: someone saying, “I want to die, please turn off my ventilator” as opposed to, “I want to die, please let me take this substance.” Although we may have a fundamental disagreement on whether those things are the same or different, if he still thinks it is appropriate for the Mental Capacity Act to be used as a one off test, with no other safeguards, for turning off a ventilator, then why is it appropriate in that situation but not when tested multiple times in this instance?

I recognise that this is a vital point; I am not surprised that we keep returning to this important distinction. I do think that there is a vital distinction between accepting treatment and declining a treatment. In fact, the treatment proposed here is not a treatment at all—the British Medical Association specifies that it is not a medical treatment. The termination of life deliberately does not apply to a particular condition, whereas a ventilator, or any treatment that one might decline or withdraw, is specific to a particular condition or illness. There is a difference in purpose, even if the effect—which is death—is the same.

To the hon. Member’s point on whether the MCA is appropriate in cases of withdrawal of treatment; well, there we do seem to have a substantial body of clinical practice over many years, to which I am not aware of many objections. My non expert view is that it is probably appropriate to continue with the MCA in those cases. I do not have an objection there and I am certainly not making that argument. It may well be that it is appropriate, and I am sure we will constantly review the applicability of that particular test in those circumstances. It might well be that some of the problems that I am identifying with the proposed law may also apply in cases of withdrawal of treatment—but I am not aware of that, because I do think they are substantially different. Even if it were perfectly acceptable to apply the MCA in cases of withdrawal of treatment, that does not mean it is appropriate in this case, because they are fundamentally different scenarios. I do not detect that I have satisfied the hon. Member, but it is always good to have the exchange.

I will conclude my challenge to the suggestion that the MCA is universally understood and properly applied. The Court of Protection case of Patricia, a patient with anorexia nervosa, has been referred to a number of times in the course of our debate. We heard evidence from a group of anorexia sufferers who wrote to the Committee to say: “The judge in the Court of Protection case of Patricia…stated that he had changed his mind several times while considering the evidence. He then came to a different view on capacity from the treatment team. This single case exemplifies how complex the processes described under Clauses 7, 8 and 12 of the Bill in relation to assessment of capacity are likely to be”.

We are not talking about a straightforward process. It is clear from all the evidence we have had that there is a real problem with the way that the MCA would apply.

I want to make a rather obvious point, which is that when the MCA was debated and passed 20 years ago, assisted dying, or assisted suicide, was not on the table; it was not part of those considerations, as far as I am aware. It turns out that Dignity in Dying was on the case back in those days, although I think it was still called the Voluntary Euthanasia Society then. That group was conscious of what would come—I do not think that others were—and I detect that it is quite pleased now with the influence applied then to ensure that the presumption of capacity would be very useful one day when it came to passing an assisted dying law. It was not the intention of the House of Commons or of the Committee that considered that Bill that in fact they were establishing a test that would be applied in the case of assisting suicide and changing the terms of the Suicide Act. I am sure that if that had been the case, it would have been commented on, and I daresay the Mental Capacity Act would not be in its current form, or there would have been some addendum to that effect.

My hon. Friend the Member for Reigate referred to the very powerful evidence from lawyers, Baroness Hale and the Royal College of Psychiatrists about the challenge here. I want to quickly say, in support of amendment 322 in the name of the hon. Member for Bexleyheath and Crayford, that my hon. Friend the Member for Reigate made a powerful argument about impairment; it is striking that the MCA only applies when there are cases of impairment of, or disturbance in, the functioning of the mind or brain—I will not repeat the point she made, but I urge Members to reflect on it.

I will quote Ruth Hughes, a barrister specialising in mental capacity law and inheritance. This refers back to the point that my hon. Friend the Member for Reigate and I discussed in an earlier sitting about the clear opportunity that the Bill affords people to seek an assisted death for the sole purpose of saving their family money. Ruth Hughes says: “If the…Bill is passed, then this will lead to some of the most vulnerable people dying for others’ financial gain. That is certain…Although in general I would, of course, accept the importance of the presumption of capacity, in relation to assisted dying, I consider that, the burden of proof for capacity should be reversed so that it is necessary to establish capacity to decide to die positively.”

Amendment 322 is tabled for that very obvious reason: there is a clear financial advantage for family members, and, I am afraid to say, there are many other distressing motivations that people might have that are not intended by the Bill’s promoter, the hon. Member for Spen Valley. It feels absolutely appropriate that we reverse the burden and have a much higher test of eligibility than that afforded by the Mental Capacity Act.

I want to make another point, although I do not know how hon. Members will feel about it because a lot of people do not accept that we are talking about suicide, even though it is in the terms in the Bill that we are amending the Suicide Act. The assumption of capacity in somebody taking their own life is what is proposed if we adopt clause 3: we are proposing that somebody has capacity if they end their own life. That implies directly that somebody who is standing on a window ledge or a bridge, about to commit suicide, is assumed to have capacity and to be making a rational decision, which other people should support. I say that directly, because there is a direct read across with the whole topic of suicide prevention, which obviously we all strongly believe in. How can we say that somebody who is about to take their own life, unassisted, does not have capacity and is not making a settled and informed wish? In which case, why should we stop them or try to wrestle them back from the edge?

When people are in what is often termed a “crisis”, that would indicate that they are not in a situation where they have capacity. I do not see how the hon. Gentleman can think that it is reasonable to make a comparison between these two things; they are entirely different, and I am sure everyone here would broadly agree with that—I think, on this one, he is sort of on his own. Would the hon. Gentleman be able to offer any further insight into why he thinks that two wildly different situations are analogous—one is in a medical context where people have all the safeguards, and that layer of security and checking, and the other is someone who might be doing something in a moment of desperation?

The connection is explicitly in terms of the Bill. The Bill disapplies section 2 of the Suicide Act, which makes it illegal to assist somebody to commit suicide. It says that that section no longer applies. This Bill assists people to take their own life—I will not use the word “suicide” if people do not like it. There are other eligibility criteria: I totally acknowledge the hon. Member for Harrogate and Knaresborough pointing out that someone has to have a diagnosis of terminal illness, but that is not the point I am making. I am making the point that, under clause 3, we are saying that somebody who wants to take their own life has capacity, according to the very low bar of having a settled and informed wish. We are assuming capacity in the person who wants to end their own life. I suggest that that presents a real challenge to our national suicide prevention strategy—I will leave that point there, but I welcome any challenges to it.

I question whether the hon. Gentleman is making a false equivalence here in the very title of this Bill relating to terminally ill adults.

There are huge challenges around the definition of terminal illness, as we have already acknowledged—but if the right hon. Lady thinks that somebody who is terminally ill should be allowed to jump off a bridge or out of a window without anybody saying, “Wrestle them back,” she should say so. We think that, whether someone has capacity or is in their right mind or not, they should not end their own life. That is the settled view of this country. That is what the law determines. Currently, it is illegal to help someone to do that. We are proposing to change that, to enable people to help somebody to do that in a medical setting.

The implication of clause 3 is very clear: if one has a settled wish, ending one’s own life is something that we regard as acceptable. It will be very difficult to apply the principles of national suicide prevention when we have acknowledged that suicidal people have capacity. I will leave that point—it is not receiving a great echo of affirmation—but I have not heard any objection to it, other than a lot of head shaking.

On the argument made by the hon. Member for Bexleyheath and Crayford about reversing the burden of proof, the challenge we have with the Mental Capacity Act is that it has what is called the 51% sure approach: if it is more likely than not that the patient has capacity, they should be regarded as having capacity. I invite the Committee to consider whether it is happy with that 51% sure test and whether, given the severity and irreversibility of what is being proposed and all the challenges we acknowledge around the potential for internal coercion and pressure, it would not be appropriate to raise that threshold.

I do not want to repeat the points made by my hon. Friend the Member for Reigate about the value of amendment 49, tabled by my hon. Friend the Member for Runnymede and Weybridge, but the amendment forces us to be clear. I notice that nobody responded to the invitation to say, “Is this what we mean by clause 3?” If we reject amendment 49, which requires the Bill to specify that the principles of the MCA apply—that the burden of proof is that the patient has capacity—we will allow unwise decisions and support decision making even for those with learning disabilities. That is what clause 3 will do if we do not amend it in the ways we are proposing.

We will not press amendment 49 to a vote, but I support the principle. Let us be clear what we are doing here: allowing people with learning disabilities to make unwise decisions and assuming capacity in all cases. Let us be honest about what we are doing if we proceed with clause 3 unamended.

Upcoming amendment 339 to clause 4 addresses that specific point. The hon. Gentleman has been asked this a number of times today, but would he be satisfied if that amendment was passed?

Sorry—remind me of the detail of the amendment.

Essentially, the amendment would require that if a person is autistic or has a learning disability, they must be given accessible information and sufficient time to consider it. Additionally, there must be at least either a supporter or an independent advocate there. That amendment was tabled by my hon. Friend the Member for Bexleyheath and Crayford and will be discussed later.

I would indeed support that amendment; it would go a long way to addressing the concerns that we have here. When we discuss clause 4, I will come on to some suggestions for how we can make sure that people with learning disabilities are properly supported, particularly people with Down’s syndrome.

To finish, I will speak to amendment 50, also tabled by my hon. Friend the Member for Runnymede and Weybridge. If we are going to proceed with the MCA, we need to have it on the face of the Bill, to ensure standardisation —hon. Members have confidently asserted that it happens anyway, although the evidence we have been presented with demonstrates that it does not in all cases. Let us be much more explicit about the requirements that are needed. We should specify the minimum of what needs to be understood for capacity, including understanding the likely process of all treatment options, including non treatment, and prognostic uncertainty. It is not acceptable, in my view, to have all of that worked out later by clinicians. Parliament must clearly say at this stage what is important.

While Members are looking at the quite extensive terms of amendment 50, it would be good to know what in that list they would object to and why any of it should not be included. It does not change the Mental Capacity Act; it preserves the integrity of the Act. It simply specifies more precisely and gives clear guidance to doctors to ensure that they do the best job they can. Lastly, it states that the patient must have full understanding of the consequences of “requesting assistance in ending their own life”.

That includes the potential for medical complications at the end. That is a point that has been touched on a little in debate, but I will quickly say a word on that.

It is very important, in my view, that we are clear about what the patient should do, what the doctor should do, what the patient is entitled to do and what the doctor will do, in the event of complications at the end. This is not an abstract question. The Association for Palliative Medicine of Great Britain and Ireland gave evidence to us, stating: “It is important to highlight the lack of scientific evidence for the effectiveness, failure rates or complications of any ‘approved substance’”, and pointing out that the proposals in the Bill fall quite short of “the usual practice of approving treatments in the UK, which mandates careful assessment of drugs and their combinations.”

We do not know how that will be applied in this case. It is a point for later in the Bill how we consider which drugs should be used, but it is relevant at this stage to insist that patients are made fully aware of the drugs that will be used and their potential complications. We often refer to Oregon as an inspiration for the Bill, and the law in Oregon requires the applicant to be fully informed by the attending physician of the “potential risks associated with taking the medication to be prescribed”.

It might be worth considering that.

Professor House, in evidence to us, pointed out that informed consent—which is obviously a principle of the Bill— “is not really specified properly. The doctor is required to ask the person what they want to happen in the event of complications without having previously explained to them what all the complications might be.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 169, Q216.] So I think it is important that we specify that those complications are explained to them clearly at the outset.

This is not an abstract point. Sarah Wootton, chief executive of Dignity in Dying—my least favourite organisation—wrote in her book “Last Rights”: “We have to move away from idealised, sanitised, nursery rhyme accounts of what death can be…towards truthful, no bullshit, plain spoken explanations of what could happen.”

I do not think Dignity in Dying applied that test when putting those disgraceful adverts in the tube, showing people dancing round their kitchens anticipating their lovely death, but she is right that we need to be very clear about what actual death can be like with these drugs.

I want to end with a reference to the work of Dr Joel Zivot, an American academic. The only proper study that can be done into people who have been given lethal drugs to die, using any of the drugs that will be used in this case, is of people who have been executed in the United States. Of course it is not possible to do many studies into the after effects on people who have had an assisted death, but there have been some studies of people on death row. Dr Zivot’s point is that there is real evidence of what looked like trauma, distress and pain suffered by people as they died. Even if they themselves look peaceful—because often the first drug that is administered is a paralytic, so they are rendered immobile, and they may look very peaceful—it is evident that in some cases there is real distress going on beneath that peaceful exterior. We need to do a lot more work on understanding which drugs would be used and what their effects would be, and that needs to be properly explained to patients. All of that would be captured in amendment 50.

We are talking about a whole different area now, but I would say that, as a medical professional, if someone is gaining consent to a treatment it is in their code of practice under the General Medical Council that they explain all these things. We do not need to write it into the Act; that is already in existence. A more general point is that there is a lot of stuff already in the public domain on doctors’ behaviour that does not need to be restated in the Bill. The more we write, the more likely it is that it will be less safe for patients. I would keep it very simple.

I really want someone to explain this point to me: how can it make it more unsafe for patients to state the safeguards explicitly? How can it possibly make it harder, or more dangerous, if we specify what—as the hon. Gentleman said—is good practice currently, which the best doctors already do? I greatly respect him and his medical practice, but is he really saying that every doctor conforms perfectly to the GMC guidance? There are obviously clear problems with the way in which some doctors operate, and this is uncharted territory. Surely for the sake of doctors, as well as patients, it would be appropriate to specify explicitly how they should conduct these assessments, what communications they should make and what patients should be properly informed of. I cannot see how that makes it more dangerous.

I want to concur briefly with my hon. Friend the Member for Stroud; I have done a lot of research into this, believe me. We have the GMC, the British Medical Association and organisations that represent medical practitioners. They have very lengthy codes of conduct and behaviour codes. What we cannot do—and I have tried—is to include all that in the Bill, and we have to be cognisant of that in some of the amendments that we make.

I challenge the hon. Lady, and I would welcome her response to this: we clearly can specify some things that can be done, which is what my hon. Friend the Member for Runnymede and Weybridge has done in half a page with amendment 50, which clarifies explicitly what information the patient should receive and what they should properly understand. How does including this list of pieces of information make the Bill more dangerous for patients?

I am not saying that this amendment would make it more dangerous, but it would overcomplicate things. That is the point that my hon. Friend the Member for Stroud was making. We need to have a very clear piece of good law, and I think the Bill already covers the points in amendment 50 and others, which I fully appreciate have been put forward in good faith. It is the clarity of the law that sometimes has to be the focus. I absolutely concur with the hon. Member for East Wiltshire on safeguards, but unfortunately I feel that we will probably never get to a point with the Bill where he is happy with the level of safeguards, and maybe he is prepared to acknowledge that.

It is unlikely that I would ever vote for an assisted dying law but, if we are going to have one, I want to make it as safe as possible, which we all want. On those terms, in the spirit of a Bill that is going to pass, why not include these specific pieces of information? The hon. Lady says that, while it would not make the Bill more dangerous, it would overcomplicate it. Again, how does it overcomplicate it to add a few clauses specifying information that must be clearly communicated?

Amendment 50 requires that whoever is medically assessing capacity is also able to understand the legal implications. The final point of the amendment says that they have to understand what the insurance implications are likely to be, which would mean that they would have to inquire into the individual’s financial circumstances. They possibly might need to understand what provision they have made for their family.

It also references what the designation of death is likely to be, which again requires them to decide there and then what they will write on the death certificate, when it happens. As the hon. Member for Stroud said, much of what is in amendment 50 is already either in the Bill or implied by it. As Ministers have said before, we have a duty to the statute book not to embroider it to the extent that it becomes overcomplicated and unworkable. I do not think that any of us would necessarily argue with the points in amendment 50, other than perhaps the last one about legal expertise, but clarity leads to certainty, which leads to safety.

By that logic, the safest, clearest Bill would be one that simply authorised an assisted death without any of these checks whatsoever. My right hon. Friend made the point that this amendment requires the doctor to discuss with a patient all the implications of their death. That is perfectly appropriate—in fact, if that is not being done at some stage in the process, and if that is not clear in the Bill, it absolutely should be. Otherwise, how can we be sure that the person is making a settled, informed decision, with all considerations taken on board?

I am sorry if that imposes a little extra burden on the doctor. One of the great challenges of the Bill is that, if we are to do it properly and genuinely make it a Bill that is strong in its safeguards, a whole lot of people will have to do a whole lot of work. There will be a huge demand on all parts of the public sector. This is required, I am afraid. I do not accept that the content of the amendment is either already in the Bill or implied in it. There might be some remote piece of GMC guidance that touches on this, which we would hope is properly applied, and I appreciate the point about embroidery. Nevertheless, this is not embroidery; this is upholstery—it is necessary for the Bill to be strong.

I want to pick up on a point that the hon. Member made before the previous intervention about the rights of the doctors themselves. This is an important point that we do not consider enough. We talk a lot about the rights of the patient, quite rightly, but this Bill will provide the means by which another person can get involved in someone’s death. It is really important that the legislation protects the rights of that person—the doctor involved—as well. Does he agree that providing greater clarity about the standard required to assess capacity will help the doctor to protect their own rights, perhaps in response to legal challenge from families, and that it is important that we consider the rights of the doctor as well as the patient?

The hon. Lady is absolutely right. It is an interesting irony of the Bill that it is presented as the free choice of individuals, but actually it imposes all sorts of obligations and repercussions on other people—the very term “assisted” conveys that. Many other people will be affected by the decision to take an assisted death. She is right that it would be very helpful for the doctors to be confident that they have done their job properly because they have a clear list of communications they are expected to make.

My understanding is that doctors are indemnified against legal challenge in consequence of decisions they make around this; that is an interesting point and one that I am uncomfortable with, but we will come to that later in the Bill. Leaving lawsuits out of it, from the point of view of the doctor’s professional conduct and their peace of mind, it would be very helpful for them to have it clearly specified what information they are required to convey.

I am grateful for Members’ interventions, and I appreciate the good faith and good sense that has been spoken, but I have not yet heard any reason for objecting to this amendment, other than the possible question of its being otiose and not necessary. That is not a sufficient reason to object to an amendment. We should not be objecting simply on drafting grounds. There can be tidying up exercises later if there is repetition. I have not heard objections to the content of the amendment, and I would very much welcome Members’ support.

Does the hon. Member agree that the amendment ultimately aims to provide clarity, and that clarity ultimately leads to safety?

Exactly. A few more words of clarification should not be regarded as burdening the Bill or creating bureaucratic obstacles for doctors and patients; the amendment actually specifies more explicitly what is going on. It is almost akin to the debate we had on amendment 181 and those dangerous words “for the avoidance of doubt”; that is essentially what this amendment does, but it goes further, because it imposes clearer obligations on doctors to do their job properly.

Much has been covered today, and the issue of capacity was debated at length when the Committee considered clause 1, but I do have some observations.

I am sympathetic to the assertion that there should be changes to presumption and burden. Those are things that I have considered and spoken about with the promoter of the Bill and, outside the Committee, with experts who gave evidence to the Committee. I have spoken about them publicly as well; I am very sympathetic.

At the heart of this, we have two options. We could change the burden and presumption in the Mental Capacity Act 2005 for the purposes of assisted dying, rewriting 20 years of case law and medical practice. There is certainly some value to that, but that would be a radical departure from current medical practice, and there are other concerns. The alternative is to put in place rigorous processes and training around the Mental Capacity Act to ensure that it is implemented properly. After some reflection, I err on the side of the latter option, for a number of reasons.

First, I accept that there is debate among psychiatrists about this issue. We heard evidence from some who deem the Act not to be suitable for this new realm—I accept that we are entering new grounds, and I will come back to that point—but many psychiatrists and lawyers working in this area would deem it uncomfortable and unnecessary to depart from the Act.

Secondly, there is an oddity in changing presumption. There is an oddity in someone having to prove that they have capacity to fulfil their own desire. That oddity is one of the reasons that the Act is drafted as it is. It is partly—there are two sides to this coin—to ensure that there is no discrimination, partly to comply with the Human Rights Act 1998 and human rights more generally, and partly to ensure that we do not end up in a medical situation that is patrician, whereby medical doctors take an intrusive view of capacity rather than meeting the individual as they are.

Thirdly, the Bill, when amended—I will come on to the amendments that give me some comfort—will offer more safeguards than the Mental Capacity Act. Amendment 5 to clause 9(3) would ensure a further level of assessment. My hon. Friend the Member for Spen Valley has indicated that she will support that important amendment, as have all members of the Committee. If there is any doubt, there will be a further assessment by a psychiatrist. That goes some way to reassuring me that it is not necessary to rip up the burden or change the presumption in this area.

I want to make an observation about burden of proof, presumption and the nature of the assessment. Professor Whitty clarified his evidence. It is right that the burden and the presumption do not change, but of course the nature of the assessment rightly changes according to the circumstances. Every assessment of capacity is somewhat different, which is why amendment 50 is too prescriptive, in my view.

Of course, we can consider incredibly serious cases involving deprivation of liberty or the ability to conduct litigation. I have worked with parents whose children are being removed and looked at whether they have the capacity to make decisions about how they present their case. It is very dangerous to compare the severity and the profound nature of different circumstances, but let us not pretend that the Mental Capacity Act is not used to assess the most complex issues of capacity every day.

I am very sympathetic to amendment 50. I have met the hon. Member for Runnymede and Weybridge, who tabled it, and the hon. Member for Solihull West and Shirley to discuss it, but I stress that such a prescriptive provision is not appropriate for primary legislation when we are entering new ground. I accept, as hon. Members with different views have said, that we are entering new territory and that this is difficult. I accept that psychiatrists and medical practitioners will have to think long and hard about the nature of the capacity assessments, especially under clause 9(3), when that is activated. That work will have to be done. It has been set out in primary legislation through some of the training clauses, which have already been referred to.

There is no doubt that there will be a lot of work and consideration, but I do not deem it appropriate to have a clause drafted by one psychiatrist, albeit an undoubtedly esteemed and experienced one: the hon. Member for Runnymede and Weybridge, who tabled the amendment. Rather, the work needs to be done as the Bill is implemented over a two year period. It needs to be done as part of a full consultation with psychiatrists, once the Bill has been passed, and that should be set out in guidance. That is what would usually happen with deprivation of liberty. I do not think it appropriate for primary legislation to set out the factors for a capacity assessment.

My hon. Friend is saying that that will take two years. The MCA, which has been implemented over 20 years, is misunderstood. Does he not see the risk of two years? This is new territory, without change—

We need to be careful when we say that the Mental Capacity Act is misunderstood, full stop. Let us be clear—

Not full stop.

Well, that was the sense—

Order. Let the Member respond to the point made in the intervention.

I am grateful, Mr Dowd.

The evidence that we have received is that this is a test. These are assessments that happen every day across the country. Now, there are more complex assessments, and there will without doubt be areas in which the assessment is not done as rigorously as it should be done, but that is why I am assured by the safeguards in the Bill that if there is any doubt—any doubt—as to capacity at first instance, there will be a full and thorough assessment by a psychiatrist.

Let us think that through for a minute. Any competent psychiatrist trained in this area will no doubt have a sense of what the Mental Capacity Act says and of the normal test for capacity. Someone who is seeking assistance to die from a doctor who has doubts as to their capacity will have been referred. To my mind, it is unfathomable that that assessment, at that stage, would not be rigorous and would not satisfy every Member that it had been done to the correct extent practicable.

I absolutely agree with my hon. Friend about that in most cases, but in nine of the 10 cases that went to court, young girls were found to have capacity, but their treatment was stopped, leading to their inevitable death. That is not excluded here.

We are debating lots of different things now, rather than just clause 3. There is an issue as to whether in those cases the individuals were found to have capacity, but we are talking about the process by which someone is found to have capacity, rather than what happens thereafter. We have had that debate, and I am happy to have it, but we are talking now about the process by which people are found to have capacity.

This is the problem with interventions: I have lost my train of thought. This is why people do not take them.

rose—

But I am happy to take another, although I may come to regret it.

I have a simple point to make; the hon. Gentleman can work out what he is going to say next while I make my brief intervention.

The point is that the referral to a psychiatrist will happen if the doctor has doubts in their mind. There is not an obligation on the doctor to refer; there is only an opportunity for them to do so, if they conclude that there is a reason. May I put a scenario to the hon. Gentleman? It is not clear whether this could happen under the Bill; well, it could happen, because it is not prohibited. A private practice might establish itself to provide assisted death, with the medical assessments and the support right through to the end—to the final act.

In those circumstances, if a patient goes to one of those clinics, does the hon. Gentleman not see that there might be a risk that the whole incentive of the business, even if it is a charity, will be to expedite the process, tick the boxes and pass people through? Does he not consider it dangerous that there is not an absolute obligation to refer to a psychiatrist and in fact, an obligation to pass a higher capacity test than the one that is currently in the MCA?

A handy household hint: Members do not have to take interventions if they do not wish to do so. If a Member wants to keep their train of thought, they should feel free not to take an intervention.

That was an intervention that I was grateful to take. I accept the point that there are dangers of a system that somehow incentivises this. That is why the Bill has to have such strict safeguards and such strict regulation of medical practitioners to comply with the law. The point about mandatory referral is key; I would have real concerns about this area of the Bill without that amendment, and unless the sponsor of the Bill had not made it very clear that she would be supporting it. But I take the point.

Does my hon. Friend agree that clause 8(6), which requires the second doctor to be independent of the first—they must not be “a partner or colleague in the same practice or clinical team”— would protect against the situation on which the hon. Member for East Wiltshire speculates?

Yes, there are safeguards and mechanisms in the Bill to ensure that and to protect from a culture that would incentivise this practice.

Will my hon. Friend give way?

No, I am not going to, actually. I am taking my rights.

My final point concerns section 1(4) of the Mental Capacity Act and the discarding of the principle about whether a decision is deemed to be unwise. This is an issue we have already debated, but it is really important. Introducing a best interests test is, to my mind, impossible without ending up with a law that discriminates against certain groups. Essentially, it is impossible to do fairly.

I remain to be convinced. If there were an amendment that could do what I think the hon. Member for East Wiltshire wants, I would support it. If there were an amendment that could look into someone’s mind and make sure that they are doing this for reasons that society would deem fit, I would support it, but I think that that is impossible. What the Bill aims to do is assess a person’s capacity and ensure that they are making this decision voluntarily. It also aims to protect them from the influence of third parties and outside sources. That is the only way, if this principle is to be adhered to.

Finally, I will be voting against the amendments, but I will finish where I started. I have genuinely thought long and hard, in particular about the presumption. I have spoken to experts who disagree with me, but in my mind it comes down to whether we rip things up and start again or whether we add rigorous safeguards, practices and processes, which may be a bit more boring but will actually be more effective at protecting any patients who go down this road.

I rise to speak in support of the amendments. Having worked as a mental health nurse for 22 years, I completed mental capacity training many times in my career, and I carried out capacity assessments as part of my day to day job. I think that the capacity assessment proposed in the Bill is not safe enough. That was one of the main reasons I voted against the Bill on Second Reading. I have spoken to many people who oppose the Bill, and one of their concerns is about the capacity assessment.

We have talked about capacity assessments every day in this Committee. It is one of the key issues that we will need to resolve to strengthen the Bill if it goes through. One of the Royal College of Psychiatrists’ concerns is that capacity decisions are “opinions with a margin of error and are time specific. A person’s capacity can change”.

I will talk about my experience with those margins of error.

A person’s capacity can be influenced by various factors, including their life circumstances, the medication they are taking or severe pain. Suicidal thoughts due to their mental state or depression can also influence their capacity. I have worked in acute mental health units. Every day, we carried out capacity assessments, including before we let someone out of the ward, whether they were admitted under the Mental Health Act or were receiving treatment as a voluntary patient. If somebody wanted to leave the ward, before the member of staff opened the door, they had to assess that person’s capacity. Sometimes a person might have said, “I am going to kill myself,” and the nurse would have had to decide whether or not they had capacity before opening the door.

My hon. Friend the Member for Bradford West has talked about unconscious bias. The initial capacity assessment when a person comes to a hospital is very important. If a doctor has assessed at the beginning that the person has capacity, the following assessment can be influenced by that initial assessment. I totally agree with my hon. Friend’s argument about unconscious bias in capacity assessments. As Members have mentioned, the Bill proposes many occasions in the process when capacity will be assessed, but I am still not confident that each capacity assessment will not be influenced by the initial assessment. The amendments would strengthen that area of concern.

My hon. Friend is making a very important speech. Members have alluded to the provision in the Bill that the patient would be present and would potentially have an option to be reassessed. We have heard evidence from various experts on capacity, particularly on the issues of coercion and vulnerability, and doctors have told us that it takes years to build rapport with people. At the second stage, the doctor has to be somebody independent who nobody has met, so how would they be able to tease out whether that person has capacity and whether those other influences are affecting them? Does my hon. Friend share that concern?

I agree that when an independent doctor comes to assess a patient’s capacity and sees them for the very first time, they are more likely to be influenced by the assessment made at the beginning by the doctor who has known them for many days, weeks or months. I agree with my hon. Friend’s argument.

To be clear, the word “independent” means independent of the other doctor, not independent of the patient. The independent doctor could well know the patient. I hope that that clarifies that point.

But it could be the other way around. The Bill does not clarify that the second doctor would know the patient at all.

It is not guaranteed.

It is not guaranteed. I am grateful for that intervention.

We have talked about training for all registered professionals who will be involved in the capacity assessments. As someone who has carried out that training many times, I draw the attention of the Committee to Dr Rachel—

Order.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.

The Committee consisted of the following Members:

Chairs: Peter Dowd, Clive Efford, Sir Roger Gale, † Carolyn Harris, Esther McVey

† Abbott, Jack (Ipswich) (Lab/Co op)

† Atkinson, Lewis (Sunderland Central) (Lab)

† Campbell, Juliet (Broxtowe) (Lab)

† Charalambous, Bambos (Southgate and Wood Green) (Lab)

† Francis, Daniel (Bexleyheath and Crayford) (Lab)

† Gordon, Tom (Harrogate and Knaresborough) (LD)

† Green, Sarah (Chesham and Amersham) (LD)

† Hopkins, Rachel (Luton South and South Bedfordshire) (Lab)

† Joseph, Sojan (Ashford) (Lab)

† Kinnock, Stephen (Minister for Care)

† Kruger, Danny (East Wiltshire) (Con)

† Leadbeater, Kim (Spen Valley) (Lab)

† Malthouse, Kit (North West Hampshire) (Con)

† Olney, Sarah (Richmond Park) (LD)

† Opher, Dr Simon (Stroud) (Lab)

† Paul, Rebecca (Reigate) (Con)

† Richards, Jake (Rother Valley) (Lab)

† Sackman, Sarah (Minister of State, Ministry of Justice)

† Saville Roberts, Liz (Dwyfor Meirionnydd) (PC)

† Shah, Naz (Bradford West) (Lab)

† Shastri Hurst, Dr Neil (Solihull West and Shirley) (Con)

† Tidball, Dr Marie (Penistone and Stocksbridge) (Lab)

† Woodcock, Sean (Banbury) (Lab)

Lynn Gardner, Lucinda Maer, Jonathan Whiffing, Committee Clerks

† attended the Committee

Public Bill Committee

Wednesday 26 February 2025

(Afternoon)

[Carolyn Harris in the Chair]

Terminally Ill Adults (End of Life) Bill

Clause 3

Capacity

Amendment proposed (this day): 322, in clause 3, page 2, line 13, at end insert

“except that—

(a) for the purposes of an assessment of capacity under this Act, a person must be assumed not to have capacity unless it is established they do have capacity, and

(b) section 1(3) of the Mental Capacity Act 2005 shall not apply.”—(Daniel Francis.)

This amendment reverses the burden of proof in the Mental Capacity Act, so that those assessing a person’s capacity would not be able to assume that the person has capacity without evidence.

Question again proposed, That the amendment be made.

I remind the Committee that with this we are discussing the following: Amendment 49, in clause 3, page 2, line 13, at end insert— “(2) The burden of proof for an assessment of a person’s capacity is the balance of probabilities as required under section 2(4) of that Act.

(3) For the purposes of any such assessment, the principles set out in subsections (2) to (4) of section 1 (The principles) of that Act apply.”.

This amendment would set out the burden of proof for capacity assessments as being the same as the Mental Capacity Act 2005 and apply the principles from subsections (2) to (4) of section 1 of the Mental Capacity Act 2005. Amendment 50, in clause 3, page 2, line 13, at end insert— “(2) An assessment of a person’s capacity under this Act must include, but is not limited to, an assessment that the person understands— (a) the options for care and treatment of the terminal illness, including— (i) the extent of prognostic certainty of their illness or condition, and (ii) the likely effects on day to day functioning, symptom management, and pathway to and experience of death of— (A) relevant and available care and treatment including palliative care, hospice or other care, (B) withdrawal or absence of care and treatment, and (C) requesting assistance in ending their own life under the terms of this Act.

(b) a decision to proceed under this Act does not prevent or make unavailable any care and treatment provision that would normally be provided.

(c) the person’s decision to proceed under this Act must be theirs alone and not bound or directed by the views or decisions of others.

(d) the person is able to change their mind at any stage of the process for requesting assistance to end their own life under the provisions of this Act, regardless of previous decisions.

(e) a decision to proceed under this Act will lead to the provision of a substance that is reasonably expected to end someone’s life following administration and is reasonably expected to be irreversible.

(f) relevant legal consequences from proceeding with a request for assistance to end their own life, including life insurance and categorisation of death certification.”

This amendment would set out certain non exhaustive requirements for a finding that a person has capacity. Amendment 398, in clause 3, page 2, line 13, at end insert— “(2) The following provisions of the Mental Capacity Act 2005 shall not apply to this Act— (a) sections 1(2) to (4)

(b) sections 2(2) and (4).

(3) Section 2(1) of the Mental Capacity Act 2005 shall apply to this Act as if it read as follows— ‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter.’

(4) A person shall be considered not to have the capacity to make a decision to end their own life unless it is proven beyond reasonable doubt that they do have that capacity.”

This amendment disapplies several principles of the Mental Capacity Act: the presumption of capacity, the duty to help someone reach capacity, the irrelevance of an unwise decision, the application of the balance of probabilities, and the diagnostic test. It retains the functional test of capacity and requires that capacity be proven beyond reasonable doubt. Clause stand part.

I was talking about the training, which we have talked about many times in this Committee, for the people who may carry out capacity assessments, and about my experience of completing those trainings as part of my profession and carrying out capacity assessments for the past 22 years. We heard oral evidence from Dr Rachel Clarke, who has extensive experience in training doctors and nurses in capacity assessments. She said: “I would suggest that anybody who pretends that those assessments are easy and routinely done well in the NHS has not got enough experience of observing that happening. I teach capacity assessments to doctors and medical students, and it is often the case that they are very poorly conducted.”—[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 71, Q85.] That is my experience as well.

We also talked about the second doctors. In the NHS, especially in the mental health sector, my experience is that many of the doctors are not in substantive roles—many locum doctors work in many areas. With my experience, I am not confident that trainings are being taken up by many of the people working in the NHS. I do not think that any of the trusts would be able to evidence that they have an 100% completion rate for their mandatory training. Especially for locum doctors, there is no monitoring system by the trusts. I am therefore not confident that this training would be robust enough to support some of the claims.

I completely agree with what the hon. Gentleman is saying about the importance of getting the training right, but even if the training were right it might not be robust enough. The point was made earlier in the debate that there is a clause towards the end of the Bill about codes of practice that specifies that medical professionals must have regard for a code of practice that “may” be set out by the Secretary of State. Does he agree that that is a very thin defence to rely on? We are not talking about anything in primary or secondary legislation; it will be in a code of practice that may be laid down by the Secretary of State with no obligation or legal liability for a doctor to follow it. We are talking about some layers down from what needs to be in the Bill in terms of the assessments that should be conducted.

I agree. As part of the code of practice, professionals are expected to complete the training that has been outlined already, but I am not confident that that is actually happening. Saying that there will be training does not reassure me that it will be robust enough.

The hon. Member for East Wiltshire seemed reassured by the fact that there will be training in the Bill—it is on the face of the Bill and will therefore definitely take place—

Order. Can Members address the Chair, not turn to face other Members?

I am pretty confident that an amendment is going to be tabled, if it has not been already, that would change that “may” to “must” in the clause on codes of practice.

I would be happy to see the Bill make a strong case that the people who will take part in this process have training before they do so.

My larger issue is around the independent doctors. Again, I will use some examples of how the Mental Health Act 1983 has been carried out in its current format. Those cases always use a section 12-approved doctor, who is a second doctor and they may not have had any kind of contact with the patients. We may or may not end up in that sort of similar situation. That is the point I was making earlier.

As the Royal College of Psychiatrists mentioned, capacity can change and decisions are opinions with margins of error. I mentioned my experience working in mental health wards earlier, and the hon. Member for East Wiltshire talked about the capacity assessments carried out when patients are standing by or threatening to jump off a bridge. I am not comparing these situations or saying that they are similar, but we have to make decisions based on capacity. In my experience of discharging people from hospital in a mental health unit, when somebody is threatening, “I’m going to kill myself if you discharge me”, the multi disciplinary team—the doctors and the nurses—have to make a decision on whether to discharge the patient based on their capacity at that time.

Capacity is assessed based on whether someone is able to understand information—can they retain, use and weigh information, and can they communicate their decision? We cannot compare that with the situation of somebody asking for assisted dying. I want to make it clear that the capacity assessment is the key. I would love to support this amendment. As I said earlier, this issue was one reason I voted against the Bill on Second Reading, but passing this amendment might change my position and I would love to support it.

It is a pleasure to serve under your chairship, Mrs Harris. I will speak specifically to amendment 50. I fully appreciate and accept the points made on a number of occasions during this debate by my hon. Friend the Member for Stroud—that many proposed changes either already feature in the Bill or are the current course of practice for doctors and other medical professionals. As I have said previously, I am not generally in the business of supporting amendments that, in my view, overcomplicate issues, are ambiguous and could lead to other consequences or are simply repetitious, but I do not think that amendment 50 would do those things.

Some proposed amendments are featured in the Bill, either directly or implicitly, but I do not see how amendment 50 would overcomplicate or lead to ambiguity. It is a quite direct and, dare I say, common sense ask that we should all support. I take the point made by the right hon. Member for North West Hampshire on proposed new subsection (2)(f) of clause 3, as inserted by amendment 50, though I confess I did not read it in the same way that he did. I read it as saying that anyone looking to go down this route should be made aware of the legal consequences. That is a sensible suggestion.

I do not expect a doctor would be going into people’s bank accounts or deeply understanding their legal affairs, but due consideration, advice and information should be imparted to the person who is applying. That is how I read it; I did not think it would be a hugely intrusive, in depth study into a person’s personal finances.

Does my hon. Friend acknowledge that it could be a problem and an area of concern if we have two Members who have both read an amendment but have different interpretations of it?

Potentially. There are certain words and clauses on which everyone will come to very different conclusions. This has been the case throughout the entire Committee process, which is approaching its 16th sitting now. It has already been said that this provision could be tightened up, and I welcome the Ministers’ input in helping us to understand their position on aspects like this.

In my view, there is nothing in amendment 50 that specifically says, “This would be an intrusive look at someone’s personal finances.” The measure—on the advice that would have to be given—is a proportionate one. Yes, it could be reasonably argued that proposed new subsection (2)(c) to clause 3, as set out in amendment 50, has already been covered under things that we have discussed extensively, such as coercive control and pressure. Equally, I do not think that any of the language in the amendment would necessarily overrule any other issues or make them more ambiguous. From that point of view, I will be supporting the amendment. I do not think there is anything in it that would override or lead to complications with any other part of the Bill, but it does put in black and white on the face of the Bill some of the very basic processes that should be happening.

I appreciate that many of the points in amendment 50 are already happening or feature directly or implicitly in the Bill. However, I do not think there is any harm in the amendment; in fact, given the nature of what we are talking about and the fact that this legislation is unprecedented in this country, we should be very clear and direct. I do not think it will lead to confusion for our medical profession. These are straightforward and common sense asks. On that basis, I will be supporting this amendment.

I was not intending to, but I will speak very briefly to follow my hon. Friend the Member for Ipswich. I agree that what is set out in amendment 50 is entirely sensible and I support such provisions. However, I will not vote for it, and I want to explain why.

We will go down a very difficult route if we set out the regulation in primary legislation for every individual area of medical practice in this country. We do not have an equivalent version for how doctors should talk to their cancer patient and what information they should provide. We do not have the equivalent in various other sensitive acts, such as the Abortion Act 1967, the Human Fertilisation and Embryology Act 2008 and so on. The reason is that we rely, as set out in statute, on regulation through the General Medical Council.

I want to read into the record some of the existing General Medical Council guidance for doctors on giving information to patients. Of course, this covers any doctor patient interaction, and it would apply in this case as well: “The information you give patients 10. You must give patients the information they want or need to make a decision.

This will usually include: a. diagnosis and prognosis b. uncertainties about the diagnosis or prognosis, including options for further investigation… c. options for treating or managing the condition, including the option to take no action d. the nature of each option, what would be involved, and the desired outcome e. the potential benefits, risks of harm, uncertainties about and likelihood of success for each option, including the option to take no action.”

That is already set out by the General Medical Council.

The hon. Gentleman is making an important point about the obligations on doctors to communicate the range of options that patients have, and we are going to discuss that more precisely when we consider the next clause, but his suggestion that this should be treated just like any other medical treatment is surely contradicted by clause 4(1), which specifically disapplies the Montgomery ruling, which I think he is relying on there. That ruling specifies that doctors must communicate all available options to patients. In clause 4(1), the doctor is not obliged to communicate this particular option. Does the hon. Gentleman accept that it is already acknowledged in the Bill that assisted dying is not the same as all other medical treatments and it does not have to be communicated in the same way?

Order. Can we please keep interventions as short as possible?

I accept that clause 4(1) rightly sets out that no medical practitioner is under an obligation to raise the subject of assisted dying, but that is not what amendment 50 is about; it is about the information that someone has about the likely effects of taking this course of action, if a patient is to pursue it. In that case, it is entirely right that the GMC guidance would apply, as it would with any other procedure, including very sensitive procedures. Of course, the benefit of having, as set out on a statutory footing, proper medical regulation through the GMC is that it can be updated by the GMC. The question came up previously of why it would be more complicated or burdensome to have some of this set out in primary legislation. When doctors know that they have to refer to the GMC guidance, they are more likely to follow it. If they think, “Oh, hang on. I need to think about what the guidance is in this bit of primary legislation”, where does that stop? Do we start putting in slightly differently worded bits of guidance for information about different areas and procedures? That is a recipe for absolute confusion and less adherence.

I completely hear everything my hon. Friend is saying, but we also to have accept that this is not like any other legislation. This is arguably one of the most seismic societal changes that we, as parliamentarians, are going to be passing. In my view, amendment 50 would not set a precedent that, for all future health legislation, we have to set out the clear procedures—

Ahem.

I apologise for the length of this intervention, Mrs Harris. The central point is that we have to recognise that this is an incredibly important piece of legislation and there is nothing wrong with being absolutely clear and stating the procedures that would have to be undertaken to pursue this.

I do not need apologies; I need brevity. I do not want to repeat myself again.

My hon. Friend and I may need to agree to disagree on this point. Clearly, I agree that this is a significant landmark legislation, which is different from many other forms of treatment, but that is reflected in the safeguards and provisions elsewhere in the Bill. I do not believe that the Bill needs to set out the way in which information is given. The difference in its nature is set out elsewhere in the Bill with the safeguards. The drafting of amendment 50 essentially repeats what is already in place and is regulated through the GMC, entirely rightly. There is much more likelihood that that will be adhered to, as we would all wish to be the case, if amendment 50 is not accepted.

Does my hon. Friend agree that the GMC writes this in detail for the purposes of treatment? The Bill is not about treatment, so therefore there is a difference in its very nature.

No, I do not agree. The GMC guidance in many ways talks about not accepting treatment. It is equally as useful in situations involving the withdrawal of treatments and the end of life. Fundamentally, it goes back to the point that I made in my speech yesterday on informed decision making and the autonomy of the patient. They have to be informed, whether they are seeking treatment, the withdrawal of treatment or no treatment at all.

I want to reiterate briefly a point that we have made previously. The more we seek to police the conversations between medics and patient, the more guarded those conversations may become. As we know from the evidence that we have received, there are those who are determined to get an assisted death. The more we lay it out in black and white, the more people may seek to manage their responses. For example—forgive me, Mrs Harris, but this point is in response to the hon. Member for Ipswich—if my doctor said to me, “Do you have life insurance, Kit? We need to understand.”, I may say, “Actually, no, I don’t.” I may be forced or feel that I have to lie to the doctor to get what I want. We want an open conversation that is not guarded in that way, and including amendment 50 may produce exactly the opposite of what we are trying to achieve.

The right hon. Gentleman makes a good point. For the reasons that I have outlined, I will not support amendment 50. However, I would hate for any of us who do so to be characterised as disagreeing with the provision of relevant and available information about care and treatment. I certainly believe, as do some colleagues, that that is best done through existing regulatory routes, and primarily through the GMC. That is why I am unable to support amendment 50.

It is a pleasure to serve under your chairship, Mrs Harris. As usual, my remarks will focus on the legal and practical impact of amendments, to assist Members in their consideration.

This set of amendments seeks to change the way in which capacity is determined. As drafted, the Bill requires that a terminally ill person must have capacity to make a decision to end their own life before they meet the conditions for accessing assisted dying. Capacity in the Bill is determined in accordance with the Mental Capacity Act 2005, which presumes capacity unless it is established to the contrary. Amendment 322 would reverse the presumption of capacity and, in effect, establish a presumption of incapacity.

It may be helpful to the Committee if I set out the Government’s understanding of both the Mental Capacity Act and the implications for the Bill. Section 1 of the Act sets out several guiding principles, including that a person must be assumed to have capacity unless it is established that they lack capacity. Section 3 sets out a description of the factors that demonstrate that a person is unable to make a decision for themselves: that the person is unable to understand the information relevant to the decision; unable to retain that information; unable to use or weigh that information as part of the process of making the decision; or unable to communicate their decision. This inability must be because of an impairment or disturbance of the functioning of their mind or brain.

Turning to the Bill, at each stage of the process an assessment of capacity would be required. This assessment of capacity, in accordance with the Mental Capacity Act, is separate to the considerations of whether a person holds a clear, settled and informed wish to end their own life, which is also required by the Bill.

Amendment 322 would disapply section 1(3) of the Mental Capacity Act, which is the principle that a person would not be treated as lacking capacity unless all practicable steps had been taken to help them to make a decision. This could create challenges for practitioners who have experience using the Mental Capacity Act, as they would need to apply a new approach.

Amendment 49 seeks to apply a consistent approach to the burden of proof when assessing a terminally ill person’s capacity for assisted dying. The Mental Capacity Act has two evidential tests. In court proceedings to determine capacity, the balance of probabilities test applies. When care or treatment is given to someone on the basis that they lack capacity, there is protection from liability if there is a reasonable belief that the person lacks capacity and the intervention is in the person’s best interest. The amendment would diverge from this evidential approach. It would also have implications for the workforce. Requiring doctors who have experience in applying the reasonable belief test to instead apply a balance of probabilities test for assessing capacity would likely make the current established approach more complex and potentially less safe.

Amendment 50 seeks to specify certain matters that the person must be assessed as being able to understand in order for a determination to be made that they have capacity. Under the Mental Capacity Act, when a capacity assessment is carried out, the assessor must determine the salient information that the person needs to understand, retain and use or weigh based on the circumstances of the case. The amendment would diverge from this approach, both by specifying in statute the information to be understood and by including the requirement only to understand the information, not to retain, use or weigh it. The Committee may wish to consider whether that would in some respects weaken the test.

Amendment 50 might create two legally distinct frameworks for decision making that doctors would be expected to use. Again, this may introduce additional complexity for those undertaking these assessments.

As I understand it, the objection to the amendment is on the basis that it sets up an alternative framework for other healthcare decisions. Is it the Minister’s view that assisted dying is a healthcare treatment?

We are talking about the holistic nature of the engagement between patients and medical specialists. In some cases that is for treatment, and in others it is for the withdrawal of treatment. The answer to the hon. Gentleman’s question is that what we are talking about here—the two distinct legal frameworks— relates both to treatment and the withdrawal of treatment. This Bill fits into that category, in the sense that it is part of the engagement and conversation between a patient and a medical practitioner.

I am not talking about the withdrawal of treatment, which I recognise is covered by the same legal framework—particularly the Mental Capacity Act—as other healthcare interventions, because that concerns the withdrawal of a healthcare intervention. Is it the Government’s view that the administration of assisted dying under this Bill would be a healthcare treatment?

It is the view of the Government that this is a new piece of legislation that introduces a new type of engagement between somebody who meets the conditions and criteria set out in clause 1, and medical practitioners and other experts, as set out in the Bill. I am not quite sure what the hon. Gentleman is driving at. I do not know whether he wants to get into a discussion about the definition of the word “treatment”. It is absolutely clear that this Bill introduces changes into the system, including a new part of the conversation that would take place between medical practitioners and patients who have less than six months to live.

The Minister has used the word “new” several times, and that is the crux of our argument: this is a new approach and a new process. Does the Minister agree that it warrants a different, more robust approach to looking at capacity?

It is the Government’s view that, even though the Bill is introducing something new, introducing new and potentially parallel legal frameworks would not improve its clarity or workability. In essence, the Government’s view is that we bring forward legislation; if that legislation passes, we bring forward regulations; and we then bring forward training and capacity building to ensure that we ultimately have a system that is operational.

The Government do not accept the argument that bringing forward a new parallel framework of legislation at the first step would improve the workability and operationalisation of the Bill. My role as Minister on this Committee is to talk about the fact that the Bill needs to be workable, operational and legally watertight. The Government’s general view is that if we have a legislative base that, in our view, works—namely, the Mental Capacity Act 2005—we should not add more complexity into it.

To build on the points the hon. Members for Reigate and for East Wiltshire were trying to make, does the Minister agree that a reasonable person on the street would believe that the act of disconnecting a respirator was a positive act? Currently, the Mental Capacity Act is applied to that act in relation to decision making; that is therefore analogous to the process for which it will be used in relation to this Bill.

My hon. Friend makes an important point, and did so more eloquently than I could. The withdrawal of treatment is an important part of this conversation. I would also say that although we totally understand that Members want to address through primary legislation certain risks that they see arising from this legislation, it is important to point out that by doing it through primary legislation we could end up with something that is counterproductive and that could lead to the Bill being less workable and therefore potentially less safe. That is a balanced judgment.

Does the Minister agree that when it comes to withdrawing treatment, especially switching off a ventilator, the decision is often made between the medical professionals and the families, and most of the time the patient has no say in it?

What we are talking about today with this Bill—and the job of this Bill Committee is to improve the Bill—is a number of safeguards that ensure that the patient is absolutely consulted and positively and constructively engaged every step of the way. In that sense this is different from the situation my hon. Friend describes. I bow to his expertise as a medical practitioner in this field, and it sounds as though what he has described is not an ideal situation, but certainly this Bill, it would appear, has safeguards that ensure that the situation he describes should never arise.

Building on the intervention by my hon. Friend the Member for Ashford, in most cases where life support machines are switched off, by definition people are being supported to stay alive. In most cases, I would argue, they do not have the capacity—their capacity is not tested. The Minister appears very certain that the amendment would not be workable, but how can the Government be so certain of that, in the absence of any impact assessments on the workability of the Bill in the first instance?

I thank my hon. Friend for that intervention. Fundamentally, the balance of judgment of risk is based on whether, if we add additional words, phrases and amendments to a piece of legislation, it would have the result of decreasing the risk we are trying to address, or of increasing that risk. The Government’s view is that the Mental Capacity Act is a robust foundation for the decisions and processes set out in the Bill. Hon. Members are, of course, absolutely welcome to say that they do not believe that the Mental Capacity Act does what it should be doing and that that is why they have tabled amendments. However, the Government’s view is that the proposed changes would increase the risk of somehow creating a parallel framework to the Mental Capacity Act, rather than keeping it as the foundation. The system is very familiar with it and knows how it works, and that is the best way to minimise the risks that I think all hon. Members are keen to minimise to the greatest extent possible.

The Mental Capacity Act code of practice outlines that following a court judgment, there is a separate capacity test for making a will or a gift, entering into a contract, litigating and entering into a marriage. It outlines, in paragraph 4.50, specific legal tests on top of the mental capacity assessment. Will the Minister outline why we allow separate mental capacity tests in those cases, but not in this case?

What we are saying is that we have the Mental Capacity Act as the legal basis for the questions we are addressing in the Bill. Cleary, on top of that regulations will be brought forward by the Secretary of State to ensure that medical practitioners have adequate training and that capacity building takes place, so that the system is able to deal with the question before it, and therefore the judgment of the medical practitioner is trusted. I think, in the situation my hon. Friend just outlined, that that would be the same case.

Again, this is the process that every Government go through in pretty much every single aspect of policy that they deal with. They have a legislative basis; they bring forward regulations; they deliver training and they build capacity; and the system works on that basis. We then need to ensure that we have a system that is flexible, robust and resilient enough to deliver and to address whatever challenges it faces.

I will read paragraph 4.50 of the mental capacity code of practice: “For certain kinds of complex decisions (for example, making a will)”— and the others I have just mentioned— “there are specific legal tests…in addition to the two stage test for capacity.”

It already exists within our law; for other tests, there is an additional test.

I see the point that my hon. Friend is making, but the amendments, as the Government understand them, would risk creating a parallel legal framework and increasing levels of uncertainty, and the more that we increase levels of uncertainty, the greater the risk of the system not working properly. Clearly, the situation that he describes is based on particular measures that have been brought forward, but what we are talking about is a legal framework, not a code of practice, in the legislation.

Amendment 398 would remove the existing presumption of capacity in the Mental Capacity Act, thus requiring a capacity assessment in every case. The amendment would also establish a different test for assessing capacity with regards to the decision to seek assisted dying. Establishing a lack of capacity would not be based on an inability to make a decision because of an impairment of, or disturbance in, the functioning of the mind or brain, as in the Mental Capacity Act. Rather, this would allow for the consideration of other factors, such as immaturity. It would also apply a higher standard of proof than the Mental Capacity Act requires for other decisions, including for serious medical treatment, by requiring assessors to establish capacity “beyond reasonable doubt”. This may raise questions about the nature and extent of the evidence required.

In summary, the amendment would introduce a new framework for assessing mental capacity specific to assisted dying. This may create operational challenges for practitioners and healthcare professionals who are well experienced in applying the Mental Capacity Act.

I thank the Minister for explaining that. Does he recognise that what is being said today is that operational reasons are driving the decision we make with respect to capacity? We are talking about a decision for someone to end their life. Does he not think that that would absolutely warrant us doing something that might be slightly more difficult operationally, and taking a two tier approach? A lot of Members have spoken about our amazing medical practitioners and how capable they are; does the Minister not recognise that those amazing medical practitioners could cope with two sets of frameworks?

That goes back to what I was saying earlier, which is that this is fundamentally a judgment call: do we make the system more robust, resilient and effective by adding more complexity and bringing in a new and parallel legislative framework, or is it best to work with a legislative framework that is well established and well understood by practitioners, and then to enhance that through regulations and training? It is the Government’s view that the latter is a more effective way of doing this legislation, but I accept that the hon. Members who have tabled this group of amendments clearly would not agree with that analysis.

Last intervention, I promise—maybe. I do not mean it is my last intervention ever, just in this speech—no, in this minute!

An amendment was tabled by the hon. Member for Richmond Park that would have replaced clause 3 altogether, and that would have been understood as a parallel system—which would be appropriate because we are discussing a new order of intervention, which I will not call a medical treatment—but we are not doing that. We are accepting the Mental Capacity Act. It is not a parallel process: it is one that builds on the foundation of the Mental Capacity Act in a way that already happens in other respects, as the Minister has described. It is a question of putting it in legislation or into a code of practice. I recognise his arguments, but will he please acknowledge that we are proposing to build on the Mental Capacity Act and enhance it in legislation to make it safer?

I thank the hon. Member for the last intervention that he will ever make on me.

The Government’s analysis of this group of amendments is that, to varying degrees, they would not add clarity; they would add more complexity, partly because they would either create a parallel legal framework or put new elements into the mix that would create operational challenges for practitioners. That is the Government’s fundamental analysis, but it is a finely balanced judgment and I absolutely accept the hon. Member’s argument.

The Minister can correct me if I am wrong, but my understanding is that there are extra checks in specific circumstances, on top of the MCA, as the hon. Member for Bexleyheath and Crayford said. They are generally specific to those circumstances: for example, if someone is going to marry, they have to understand what marriage means. Those extra checks have not necessarily been put into law via the Act. They may have been added through subsequent Acts, as we are now doing—for example, we will be looking at coercion, provisions on which are embedded in the Bill—or through case law. If someone is making a will, they have to understand what a will is. Guidance is then laid out for professionals who are assessing people under those circumstances. Is that the correct interpretation?

I think the right hon. Member has outlined what I was saying, in slightly sketchier terms, about legislation, regulation, training, capacity building and delivery. What he has described falls under what I would broadly refer to as regulations, but within that there are a multitude of interventions, which could include codes of practice, other forms of legislation, other forms of guidance—

Common law.

Indeed: common law, jurisprudence and whatever a professional body might take as a steer for delivery. It is then about the professional judgment of the professional body.

Should the Government not be neutral on what framework for capacity the Committee might like to apply?

The Government are neutral on the Bill—the Government do not take a view on the substantial philosophical, ethical and moral policy considerations—but we do advise, and are advising, the Committee on the implications for the legislative framework of amendments that have been tabled. In a sense, we are not neutral in respect of whether we think that if an amendment were to be made, it would have very significant operational impacts that could potentially affect the workability of the Bill. We are duty bound to advise the Committee of our position on that.

You mentioned various moral issues that you are not commenting on, but in reality the decision on this increases the number of people who would be considered to have capacity. I suggest that that might not actually be a neutral position to take; it has a broader impact.

Order. I remind the hon. Member that I am “you”.

I am so sorry, Mrs Harris.

Without knowing the exact implications for the number of people who the hon. Member mentioned, it is difficult to answer her question, but fundamentally the Government’s position on every aspect of the Bill is to be clear that we want the Bill Committee to make informed decisions. Those informed decisions should be based on whether the Government think that amendments to the Bill would have a positive or negative impact on its workability and the legal framework. We also have to ensure that we protect the integrity of the statute book.

I thank the Minister for giving way for what might not be my last intervention. Everybody agrees that the legislation is new—it is not something that we have done before—so have the Government made any assessment of the training that would be required for people who deliver assisted dying? Who would set that training?

The Bill has a two year commencement date. Within that two year period, the Secretary of State will make regulations to determine precisely the kind of training and capacity building that are required, and that training will be delivered within that two year period. Those sorts of issues will be dealt with if the Bill gains Royal Assent.

Clause 3 sets out that any assessment as to whether a person has the capacity to make a decision to end their own life is to be determined in accordance with the Mental Capacity Act 2005, sections 1 to 3 of which establish the principles and criteria for assessing a person’s capacity to make decisions. Section 2 of that Act establishes that a person lacks capacity if they are unable to make the decision in question, owing to an impairment or disturbance in the functioning of the mind or brain. Section 3 states that a person is unable to make a decision if they are unable to “understand the information relevant to the decision…retain that information…use or weigh that information”

as part of the decision making process, or communicate their decision.

As the Committee will be aware, the Mental Capacity Act has for some time provided a robust framework for important and difficult decisions, and it is familiar to clinicians. I hope that my remarks have been helpful to the Committee in considering the Bill and the amendments.

It is a pleasure to see you in the Chair, Mrs Harris. I welcome another good debate on capacity, following our thorough deliberations a couple of weeks ago. In that debate, I made my views on the Mental Capacity Act quite clear. Although I have listened intently to colleagues’ contributions today, it remains my view that this well established piece of legislation is the right vehicle for assessing capacity for the purposes of the Bill. I therefore commend the clause to the Committee.

I will not speak for long. I spoke in great depth about my amendment and other amendments this morning.

Over the past few weeks, hon. Members will have heard, long and hard, about where I come from on the clause stand part issue. This has been one of my greatest difficulties. It drove me to oppose the Bill on Second Reading, and I continue to have grave concerns that the Mental Capacity Act 2005 was not written for this scenario. I draw Members’ attention to my exchange with my hon. Friend the Member for Stroud this morning when, on decision making in the Mental Capacity Act, it was accepted that it has to be presumed that somebody has capacity, and in those scenarios a doctor must assist in the decision making part of the process.

My great concern—I am sure we will continue this debate when we come to clause 4—has been around people with learning disabilities, and that is where I have ended up in this place. I have said this before and I am sure I will say it again in my contributions: people may think that I have a vested interest, but actually my daughter will never have the capacity to make these kinds of decisions. I am here in this Committee because hundreds of thousands of people in this country are involved in family decisions where a child or a loved one does have enough capacity. The Mental Capacity Act was rightly written to allow them to live independently, buy a coffee and do their banking, but I do not believe it was written for this scenario, so I will support the amendments.

I presume that the amendments may well be rejected. I look forward to discussing, in due course, the amendments tabled by my hon. Friend the Member for Hackney South and Shoreditch (Dame Meg Hillier), because they bring us into a scenario that does exist in the medical field, in respect of discussions with the doctor. As things stand, I will support the amendments. Unfortunately, I will oppose clause stand part simply because I continue to believe, as I did on Second Reading, that the Mental Capacity Act 2005 was not written for this scenario.

Question put, That the amendment be made.

13|0|8|15|The Committee divided:|Question accordingly negatived.||0|0

Amendment proposed: 50, in clause 3, page 2, line 13, at end insert—

“(2) An assessment of a person’s capacity under this Act must include, but is not limited to, an assessment that the person understands—

(a) the options for care and treatment of the terminal illness, including—

(i) the extent of prognostic certainty of their illness or condition, and

(ii) the likely effects on day to day functioning, symptom management, and pathway to and experience of death of—

(A) relevant and available care and treatment including palliative care, hospice or other care,

(B) withdrawal or absence of care and treatment, and

(C) requesting assistance in ending their own life under the terms of this Act.

(b) a decision to proceed under this Act does not prevent or make unavailable any care and treatment provision that would normally be provided.

(c) the person’s decision to proceed under this Act must be theirs alone and not bound or directed by the views or decisions of others.

(d) the person is able to change their mind at any stage of the process for requesting assistance to end their own life under the provisions of this Act, regardless of previous decisions.

(e) a decision to proceed under this Act will lead to the provision of a substance that is reasonably expected to end someone’s life following administration and is reasonably expected to be irreversible.

(f) relevant legal consequences from proceeding with a request for assistance to end their own life, including life insurance and categorisation of death certification.” —(Sarah Olney.)

This amendment would set out certain non exhaustive requirements for a finding that a person has capacity.

Question put, That the amendment be made.

14|0|9|14|The Committee divided:|Question accordingly negatived.||0|0

Amendment proposed: 398, in clause 3, page 2, line 13, at end insert—

“(2) The following provisions of the Mental Capacity Act 2005 shall not apply to this Act—

(a) sections 1(2) to (4)

(b) sections 2(2) and (4).

(3) Section 2(1) of the Mental Capacity Act 2005 shall apply to this Act as if it read as follows—

‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter.’

(4) A person shall be considered not to have the capacity to make a decision to end their own life unless it is proven beyond reasonable doubt that they do have that capacity.”—(Rebecca Paul.)

This amendment disapplies several principles of the Mental Capacity Act: the presumption of capacity, the duty to help someone reach capacity, the irrelevance of an unwise decision, the application of the balance of probabilities, and the diagnostic test. It retains the functional test of capacity and requires that capacity be proven beyond reasonable doubt.

Question put, That the amendment be made.

15|0|8|15|The Committee divided:|Question accordingly negatived.||0|0

Question put, That the clause stand part of the Bill.

16|0|15|8|The Committee divided:|Question accordingly agreed to.||0|0

Clause 3 ordered to stand part of the Bill.

Clause 4

Initial discussions with registered medical practitioners

I beg to move amendment 278, in clause 4, page 2, line 16, leave out from beginning to “nothing” in line 16 and insert— “(1A) No registered medical practitioner may raise the subject of the provision of assistance in accordance with this Act with a person if that person has made an advanced decision which has been recorded in their medical records that they will not in future wish to seek assistance under this Act.

(1B) The provisions in subsection (1A) do not prevent a person indicating to a registered medical practitioner that they wish to change their previous decision and seek assistance under the Act if they have the capacity to do so.

(2) Other than the condition in subsection (1A),”.

This amendment would prevent a doctor from raising assisted dying with a patient if that patient had previously recorded an advanced decision that they would not in future wish to seek assistance under the Act.

With this it will be convenient to discuss the following: Amendment 8, in clause 4, page 2, line 16, leave out from “practitioner” to end of line 20 and insert “shall raise the subject of the provision of assistance in accordance with this Act with a person who has not indicated to that or another registered medical practitioner that they wish to seek assistance to end their own life”.

Amendment 124, in clause 4, page 2, line 16, leave out from “practitioner” to end of line 20 and insert “shall discuss assisted dying with a person unless that matter is first raised by that person.”

The amendment prevents a registered medical practitioner from discussing the provision of assistance under the Act unless that matter is first raised by that person. Amendment 319, in clause 4, page 2, line 20, after “person” insert “who has attained the age of 18”.

Amendment 339, in clause 4, page 2, line 20, after “person,” insert “, unless that person has a learning disability or is autistic, in which case— (a) the person must be provided with accessible information and given sufficient time to consider it; and (b) at least one of a— (i) supporter, or (ii) independent advocate; must be present for the discussion.”

This amendment would require that, if the person is autistic or has a learning disability, they must be given accessible information and sufficient time to consider it. Additionally there must be at least either a supporter or independent advocate. Amendment 368, in clause 4, page 2, line 20, after “person” insert “, unless that person has Down syndrome, in which case the registered medical practitioner must be acting in accordance with any statutory guidance issued by the Secretary of State under the Down Syndrome Act 2022 to meet the needs of adults with Down syndrome.”

Amendment 320, in clause 4, page 2, line 21, after “person” insert “who has attained the age of 18”.

Amendment 270, in clause 4, page 2, line 25, at end insert— “(3A) Before conducting a preliminary discussion under subsection (2) the registered medical practitioner must ensure that the person has no remediable suicide risk factors which pose a significant risk to their life.”

This amendment requires that the doctor ensures that there are no remediable suicide risk factors before proceeding to the initial discussion about assisted dying. Amendment 276, in clause 4, page 2, line 32, at end insert— “(4A) A medical practitioner must not conduct a preliminary discussion with a person under subsection (3) until a period of 28 days has elapsed, beginning with the day the person had received a diagnosis of the terminal illness.”

This amendment would mean a doctor could not conduct a preliminary assessment until 28 days from the day the person received a diagnosis of the terminal illness. New clause 6—Advance decision of no effect— “An advance decision, made pursuant to sections 24 to 26 of the Mental Capacity Act 2005, which stipulates that the maker of the decision, having become incapacitated, wishes to be provided with assistance to end their own life in accordance with this Act, shall be null and void and of no legal effect.”

The new clause prohibits an individual from making an advanced directive for voluntary assisted death in the eventuality he or she were to become incapacitated at a future date.

I will be brief. Amendment 278, tabled by my hon. Friend the Member for Wells and Mendip Hills (Tessa Munt) has some merit. It seeks to offer a more formal protection to those who are certain that they do not, and will not, want to avail themselves of the choice to end their life if they are terminally ill at any point in the future. It attempts to do so through an advance decision recorded on their medical records.

A person’s ability to record their wishes now, as opposed to at some future crisis point, might allay a number of concerns, in particular for those who are fearful of coercion. Being able to say, “This is not for me”, and knowing that it will not be raised with them, might offer some people a degree of reassurance, so I think that the amendment has some merit. It also allows for such an advance decision to be reversed—it allows for people to change their mind.

What is not clear to me is how enforceable this provision would be, or what legal status such an advance decision would have. I have great sympathy with the aim of the amendment, so I am keen to hear from the Minister on the point. It may be that an alternative amendment that achieves a similar aim can be tabled to a later clause, if amendment 278, as drafted, is not workable.

I rise to speak briefly to amendment 368, which stands in the name of my right hon. Friend and constituency neighbour the Member for East Hampshire (Damian Hinds). I thought it was an interesting amendment to table, not least because I witnessed the introduction of the Down Syndrome Act 2022 by our colleague—sadly, now former colleague—Dr Liam Fox. He was a casualty of the last general election and is a great loss to the Chamber. His successor should certainly feel guilty about what he achieved, in my view; I am not sure that everybody would share that view, but there we are.

The Down Syndrome Act was an important private Member’s Bill that sought to recognise the status of people with Down’s syndrome in society and to sensitise institutions to their welfare and wellbeing. Essentially, it provides that guidance should be issued by the Government to various institutions across the health service and civil society generally, that would be used to accommodate the needs of and be sensitive to dealing with people with Down’s syndrome, particularly as they reach adulthood.

Although I am sympathetic to the amendment’s aims, there are a number of issues with it. I think its objectives could be, and frankly should be, addressed in other ways. Essentially, my reading of the Down Syndrome Act is that it is aimed at institutions such as health trusts and local authorities, not at individual practitioners. Unfortunately, under that Act, which asked the Government to issue guidance on Down’s syndrome, no guidance has been issued. We have a rather good legislation website in this House that tells us whether a Bill has had an impact or had any effect. If we look up the Act on it, the website tells us that there has been no effect yet. Certainly no guidance has been issued.

I am concerned about the interplay between the Down Syndrome Act and this Bill. However, there are opportunities where we can recognise the particular needs of those with Down’s syndrome, who will often be life limited because of their condition. That needs to be taken into account. Amendment 394, which refers to advocates, will be important from that point of view, and new clause 8, which will hopefully be agreed to—I will certainly be supporting it—includes a duty to consult in regulation. I invite the Minister to make a commitment in his winding up speech that groups representing those with Down’s syndrome would be part of the consultation package. I am sure that that is perfectly doable.

Clause 30, which deals with codes of practice that the Government will issue, and clause 31, which mandates the chief medical officer to produce guidance for medics and some of the training that will be required, should include modules on dealing with individuals with Down’s syndrome. I do not know whether anyone is intending to press amendment 368, and I do think that there are problems with it, but my undertaking is to go away and talk to my right hon. Friend the Member for East Hampshire about what could be done, perhaps at a later stage.

I will speak to the amendment shortly, but will the right hon. Gentleman take a commitment from me that I will happily join him in those conversations if it is at all helpful?

I am very grateful to the hon. Lady. It would be fantastic if she did that. However, I think we could probably deal with the intent of the amendment if the Minister were willing to commit—it is not a big commitment to make—that in the making of regulations and in the instructions to the CMO to produce guidance, he will stress the importance of consulting those with Down’s syndrome and dealing with the issues that they face, notwithstanding the impact of new clause 8 and amendment 394, and recognising that there is no guidance yet under the Down Syndrome Act. That might be a more belt and braces approach to what the amendment is trying to achieve than hoping that that Act and this Bill will interact in a beneficial way.

I call Marie Tidball.

I am sorry, Mrs Harris, but I may have risen too soon. I want to speak to amendment 339, but I would first like to hear from my hon. Friend the Member for Bexleyheath and Crayford, who tabled it.

I rise to speak to new clause 6, in the name of my hon. Friend the Member for Solihull West and Shirley; to amendment 368, in the name of my right hon. Friend the Member for East Hampshire; to amendment 270, in the name of my right hon. Friend the Member for South West Wiltshire (Dr Murrison); and to amendment 278, in the name of the hon. Member for Wells and Mendip Hills. I will canter through them as quickly as I can.

My concern about new clause 6, which specifies that an advance directive would be inapplicable in the case of assisted dying, is that, as we discussed briefly at a previous sitting, advance directives are currently about the refusal of treatment. That is what they exist to do. Under the new clause, as in the Mental Capacity Act 2005, the effect of an advance decision would be that “the specified treatment is not to be carried out or continued”.

However, under clause 18, the doctor must be satisfied at the time that the lethal substance is provided that the patient has capacity. I do not think that the new clause is necessary; it is otiose or even nonsensical, because the Bill already assumes that the patient has capacity at the very end. [Interruption.] The hon. Member for Spen Valley agrees with that point. I invite my hon. Friend the Member for Solihull West and Shirley to consider whether he wants to press new clause 6 at all.

On amendment 368, which relates to people with Down’s syndrome, I hear what my right hon. Friend the Member for North West Hampshire says. I strongly agree with him; I will make a couple of points and then respond to his suggestion.

I look forward to the points from the hon. Member for Spen Valley. I do not say this in a carping spirit, but it is relevant that the National Down Syndrome Policy Group opened its submission with a series of complaints about the process. The group feels that the consultation process has been rushed: we have not had the usual 12 to 16-week public consultation. It talks about limited professional and affected population engagement in the course of the drafting of the Bill, and a lack of accessible consultation materials; I mention that not to revisit the debate that we had about the process, but because it is a bad start. In the group’s mind, it is a harbinger of how the Bill might operate, and I understand why it thinks that.

The fact is that in our society we have persistent and entrenched discrimination against people with learning disabilities, particularly people with Down’s syndrome. There is a fundamental assumption that is too widely shared that the lives of people with Down’s are worth less than others’. One sees that, I am afraid to say, in the prevalence of prenatal screening and termination of Down’s babies. Yet we know from research that the lives of people with Down’s are as fulfilling, joyful, positive and constructive as everybody else’s. The most marvellous fact is that 99% of people with Down’s syndrome say that they are happy with their life, which I am sure is more than on this Committee and probably more than in the general population.

As a society, we serially misunderstand and degrade the value of people with Down’s syndrome. They are victims of the system, particularly in healthcare. People with intellectual disabilities died at rates three to four times higher than the general population during the covid crisis, often with inappropriately applied “do not resuscitate” orders put on them. The representation from the National Down Syndrome Policy Group was signed by 50 organisations, all representing people with Down’s syndrome, so it is pretty widespread.

Expert advice is that it is very difficult to spot coercion when dealing with people with Down’s syndrome. It is very difficult to ensure that one is getting informed consent. A point that has been made, in particular by the Down’s Syndrome Research Foundation, is that a discussion with someone with Down’s can often feel to them as if a suggestion is being made. That is particularly relevant to the whole question of a doctor’s suggestion, which we will come on to—well, we are on it now. Certainly the whole matter of how a person with Down’s syndrome receives information needs to be taken into account in any work that is done.

The hon. Member is making an important point. As someone with friends who have children with Down’s who, as he says, absolutely have very fulfilling lives, I hear every word that he is saying. Will he take a commitment from me back to those organisations? I commit personally to meeting them, perhaps alongside the right hon. Members for East Hampshire and for North West Hampshire, at a time convenient to them.

I am grateful to the hon. Lady and am sure that that will be welcomed. It does rather go back to the point that the organisations made at the outset, which is that they wish they had had more consultation earlier on, but I understand why that was not possible in all cases.

In oral evidence, Fazilet Hadi stated in answer to a direct question from me that she felt that disabled people had not been listened to properly. Will the hon. Member comment on that?

I am afraid that that seems to be the strong impression that many groups have.

I will quote quickly from a submission that we have received from someone at the National Down Syndrome Policy Group, Fionn Crombie Angus. I am not sure whether Fionn has Down’s syndrome, or is perhaps a parent, but the point is a striking one, which we have not heard enough: “I do feel very sorry for the people who are suffering, but I think the people left behind, the relatives, will be scarred for life if they help people die. That is the main reason why I do not want the Assisted dying Bill to become law.”

That is not specifically relevant, because we are not discussing whether the whole thing should happen, but it strikes me that there, from a member of the Down’s community, we have a point that goes to the heart of our discussion on the Bill: it is not all about the individual who is seeking an assisted death. More people are involved in the decision.

I made a point in an earlier debate about relational autonomy, which is very significant. That particularly applies to this group of people, who will be making decisions in the context of their family and the people around them, including the doctor who is talking to them. That is why it is particularly important to have a wider set of expertise and advice around people with Down’s.

My concern is that Bill, as drafted, thanks to the inclusion of clause 3 and its reference to the Mental Capacity Act, will assume consent and support people with Down’s receiving this intervention. It would have been best if we had accepted the amendments tabled by my hon. Friend the Member for Reigate and the hon. Member for Bexleyheath and Crayford to reverse the burden of proof. Failing that, we need to ensure that the job is done properly. Amendment 368, tabled by my right hon. Friend the Member for East Hampshire, would address that point.

Given the real concern that we have all discussed about the application of the Mental Capacity Act, it is important to have real expertise, time and attention on behalf of Down’s people with the role of an independent advocate. In particular, that should be someone who has expertise in end of life decisions for people with Down’s syndrome, which will be a small group of experts, so we might have to end up widening that, I am sorry to say. We need people with proper expertise.

I think the point that my right hon. Friend the Member for North West Hampshire made about the interaction of the Bill with the Down Syndrome Act 2022 was absolutely right. My understanding is that he is right that it applies to authorities, but it strikes me that the purpose of the amendment 368 would be to insist that the provisions of the Act apply in the case of individuals as well.

My right hon. Friend may be right that there could be complications, so it would be good to hear whether the Minister agrees with him that we should take this topic away, with the hon. Member for Spen Valley, and see whether the provisions in the amendment can be introduced at a later stage of the Bill or in statutory guidance. However, I would want to hear explicitly from the Minister that he is confident that what my right hon. Friend the Member for East Hampshire was trying to do when he tabled the amendment will be reflected properly at a later stage of the Bill. On that basis, I am happy not to press the amendment to a vote unless others feel strongly that we should proceed.

Amendment 270, which stands in the name of my right hon. Friend and neighbour the Member for South West Wiltshire (Dr Murrison), is about the importance of ensuring that any remediation of suicidal thoughts has been properly provided. NICE guidance says that if someone is at risk of self harm or suicide, a clinician must ensure that a psychosocial assessment has been carried out by either a mental health specialist or a trained person in primary care. That should cover the person’s living arrangements, relationships, social support network, mental health disorders, risk factors and safeguarding concerns. Professor House told the Committee that this should be part of the assessment for assisted dying, and his point was that the current assessment only answers the question:

“Is this person able to make decisions?”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 165, Q210.]

It goes back to our ongoing conversation about capacity. The current requirement does not cover psychological and social assessment.

Depression is a very common issue with terminal illness, and depression is strongly linked to a wish to hasten death. I apologise, as I know Members do not like it, but I have to refer back to the fact that we are talking about suicide. There is a reason why people commit suicide, or think about committing suicide, after they have had a bad diagnosis. I know that part of the purpose of the Bill is to relieve those people of the agonising obligation they feel to take their own life in brutal and traumatic ways. The fact is that we also know that suicide is most common soon after diagnosis, not shortly before death. It is more common immediately after diagnosis than later on, and people frequently come to terms with their diagnosis, receive treatment and recognise that the best thing for them and their family is for them to go on living longer.

Surely the hon. Member is describing exactly why we need the Bill. If they are given a diagnosis, at that point they can apply for assisted death. We know that there are statutory time limits built in, which I believe will take us to at least 21 days from the diagnosis. The danger is suicide in patients, which is what we are trying to avoid. Approximately 600 patients with terminal illness commit suicide in this country each year, and the Bill will prevent that by allowing them to apply for assisted death.

I hope that the hon. Member is not suggesting that all 600 would be averted by the Bill. He might be right that some would be, and I recognise that. However, the purpose of amendment 270 is to ensure that people who might be suicidal receive an assessment, whether they are inclined to apply for assisted death, if it is legal, or to take their own life in an unassisted way. If they expressed a wish under the clauses of the Bill to have an assisted death, they would have proper psychosocial assessment and proper steps would be taken to ask, if we are prepared to make this distinction, “Is it just that they are suicidal and not wanting an assisted death?” I find the distinction difficult to parse logically, but if that is the distinction that we are making, let us put it into the Bill and ensure that people are properly cared for in that very dangerous time after they get a terrible diagnosis.

I would like to quote from the written evidence that we received from a member of the Pathfinders Neuromuscular Alliance, which is a user led charity for those with muscle weakening conditions such as muscular dystrophy. This person said: “I’ve been there, I’ve wanted to die, and I’ve been in the position where I would take that option if it was given to me”— not if it was not. Interestingly, he would have taken that option if it was given to him, rather than suggesting that he was going to take his own life anyway. The quote continues, “but looking back I can see I was depressed and now I’m so glad that I didn’t take that option.”

At the moment, the Bill does not require anyone to explore these psychosocial factors, and although the person can be referred to a psychiatrist—and, if we go on to accept the amendment, we would ensure that they must be if the doctor concludes that there is doubt—I do want to make a point about referrals. There is an assumption that the doctor will refer the person to a psychiatrist, but that will only happen if they have done their assessment well. We are assuming that they will do the assessment well, but we have heard repeatedly that such assessments are often not done well. I welcome the coming amendment—amendment 6—that says that if the doctor concludes that there is doubt about capacity, they “must” refer. That would be a step forward, but it is not sufficient. Even the psychiatrist will only answer the question, “Is this person able to make a decision?” That does not address any of these other factors.

In Oregon—we refer often to Oregon, and although this Bill is supposed to be the safest in the world, it is not as safe as Oregon in this respect—the doctors may refer the patient for counselling if the patient “may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment”.

To conclude on this point, psychosocial care is fundamental to good end of life care. Members of the Committee have said that palliative care and assisted dying can complement each other; this assessment should be part of that picture, and it needs to come before the first declaration, because once somebody has signed that declaration they are already on the pathway—and there will not be an obligation on them to receive palliative care advice either, because we rejected that amendment. Amendment 270 provides for people’s needs to be met at the first opportunity.

Lastly, on the question of doctor initiated conversations, I quote Professor Brassington, who submitted evidence to the Committee: “In normal medical practice, the patient approaches the medic with a problem, and the medic suggests possible courses of action, not all of which would have been considered by the patient. The patient permits further action. But it is implicit that the practitioner who makes the suggestions thinks them good, and the patient is entitled to think that the practitioner endorses them all.”

In a normal scenario, the doctor would think about what is good for the patient. To raise an option is to endorse and encourage it, perhaps as one among a number of other options. It is to suggest that this is a good option—it might not be the one the doctor thinks is the best, but it is a good option for the patient; otherwise, they would not raise it. They can only make a recommendation for options that they consider would be appropriate to the situation.

On that point, I fundamentally disagree, although I will stand corrected by medical colleagues. I do not think that the doctor in this instance is making any suggestion; what they have the responsibility to do is to lay out the options, but it is up to the patient to choose. I would imagine—again, I will stand corrected by medical colleagues—that that is standard practice.

This is an important debate to have, because the clear implication of a doctor making a recommendation is that this option would be good for the patient. It is one of many—

It is not a recommendation.

Indeed, it is not a recommendation; but in laying out this option for the patient, the doctor is clearly communicating that it might be the right thing for the patient to do and that it might address their needs. If the suggestion is that they are making a suggestion that might not be good for the patient, then that is of serious concern to us, is it not? The clear implication of current law—with reference specifically to Montgomery v. Lanarkshire Health Board, which determines that we have patient led medicine in this country now—is that a doctor is obliged to set out all the options that he or she thinks might be appropriate to the case. That goes back to the question about whether we regard assisted dying as a healthcare intervention, but if we do regard it as one, then if it is suggested, it is because it might be the right thing for the patient to do. Implicitly, there is a suggestion that it could be the right option for the patient.

It is interesting that clause 4(1) disapplies Montgomery and says that a doctor is not obliged to make this suggestion. That poses the question: is it therefore a treatment at all?

I am not sure my hon. Friend is entirely right. My understanding is that under law and medical ethics, doctors have to discuss all courses of action with someone, even if they believe a course of treatment might have adverse consequences. It is not that they can restrict themselves; they have to give someone the full range. That sits behind informed consent, surely.

Certainly, there are adverse consequences for all sorts of treatments, but putting assisted dying on the table and making it clear that this is an option for the patient can only be done, morally and legally, if the doctor thinks that it may be an appropriate treatment or intervention for the patient. Otherwise, if we are suggesting that the doctor might not think that this is a good thing for the patient to be doing, it is a serious breach of medical ethics for them to suggest it. It is one or the other. Either this a good thing for a doctor to suggest, or it is not.

A very quick question: does the hon. Member agree that the weight of a doctor’s words weighs heavily on patients?

I am absolutely sure that is right, and I am grateful to the hon. Lady for making that important point. For anybody, but particularly for the vulnerable and those in distress, as people are towards the end of their life, for those who have had a terrible diagnosis, and for those who feel a burden and recognise that the coming months might not be good for them or their family, of course the statement of this option has an implication—even if it is presented as neutrally as possible. It might well be received as a communication that the doctor is actually trying to say, “You are going to have a terrible death”, but does not want to say it out loud. It could be taken in all sorts of ways by patients.

That is actually not right. In a medical consultation, a doctor gives a number of different options. A small example is that I might suggest to someone that there is an option of taking an antidepressant. Now, it is the patient’s choice as to whether they do that. My role is to give every option that is available, and to encourage and help the patient to make their own personal choice. That is a very basic tenet of clinical care.

I recognise that, but I repeat that by offering antidepressants, he is suggesting to his patients that it may well be the right thing for them to do. He puts in front of his patients a menu of options, with a degree of advice according to his expertise, but if assisted dying is on the menu, that is because assisted dying is regarded as something, as it were, that is healthy to eat. He would not put something on the menu that he did not think they should take. Everything on the menu is edible.

Maybe we have a different interpretation of the Montgomery case, but my interpretation is that it shifted the duty of doctors from being based on what a reasonable doctor should disclose to what a reasonable patient would want to know. In these circumstances, in which someone has a terminal diagnosis and only a few months to go, I guess we are saying in the Bill that a reasonable patient would want to know about this option.

I think my hon. Friend is suggesting that a doctor should suggest assisted dying as an option in every case, because if he is suggesting that a reasonable patient would want to know this towards the end of their life, he is saying that every dying patient should be told, “What about assisted dying?” That is a very concerning suggestion. The question is: how would a doctor decide when or when not to make this suggestion?

I will go back to Montgomery and make this point as clearly as I can. The Bill accepts that assisted dying is not an ordinary medical treatment, which is why I pressed the Minister on this question. Clause 4(1) disapplies the Montgomery case law, which requires, as part of informed consent, that the patient be informed of all appropriate options. Having conceded that assisted dying is not an ordinary medical treatment, the objection to a prohibition on doctors raising it makes little sense.

It is true that having such a prohibition would be unlike any other medical treatment, but the Bill has already crossed the Rubicon of saying that assisted dying is different from all other medical treatments, because in clause 4(1) it says that doctors are not obliged to offer it. It is either the case that they must offer it or they must not. There is no grey area. If they do not have to suggest it in any case, that implies that assisted dying is unnecessary in all cases and there no cases where it should be used. I would like to hear from any Member who has an answer to this: in what circumstances might it be appropriate for a doctor to suggest assisted dying?

Does the hon. Member therefore disagree with the British Medical Association, whose evidence to the Committee has said specifically: “We support the Bill’s balanced position such that there is no prohibition on raising assisted dying with eligible patients where, in their professional judgement, the doctor considers this to be appropriate—but there is also no duty to raise it”.

The implication is that the Bill gets that balance correct.

I am grateful to the hon. Member for highlighting that. I disagree with the BMA—I think that its idea of balance is actually an incoherence in the Bill. I note that the BMA elsewhere has suggested that assisted dying should not be regarded as a normal healthcare option or treatment. It is itself a victim of the confusion that is reflected in the Bill about whether or not this is healthcare. As I said, the disapplication of Montgomery in clause 4(1) suggests that it is not actually healthcare treatment and should not be managed in the same way as everything else.

I have been listening to the argument in some detail. Is there not a danger here of trying to translate the dry words of clause 4 to the conversations that naturally happen between clinicians and patients? Subsection (3) attempts to give some discretion as to when, how and whether to raise this prospect, instead of making it mandatory on any prognosis of terminality.

I recognise that it is an attempt to give maximum leeway to doctors. I think that is dangerous and puts doctors in a very difficult position. The BMA made the point that it is appropriate to enable doctors to raise this option as if it were just another treatment, even though it has also said it is not just another treatment.

I would challenge the BMA with the Medical Defence Union, which is the union that supports doctors in litigation. It points out, more correctly, that this is the worst of all worlds for doctors because they would be liable to complaints in either situation: if they do not raise it, a complaint can be made against them for not having done so; and if they do raise it, a complaint can be made against them on those grounds. We are being extremely unclear by leaving it entirely up to doctors. As I have said, it is not clear to me the circumstances in which it would be appropriate for a doctor to suggest an assisted death to somebody who has not raised it themselves. I would very much like to hear somebody tell me what those circumstances might be and to paint a scenario for us in which it is appropriate.

Surely all medical codes of practice explicitly or implicitly bar doctors from raising courses of action that they believe could unquestionably harm a patient. Does it therefore not follow that doctors only raise courses of action for patients that they believe will not unquestionably harm them, even if they believe some courses of action are more likely to be in the patient’s best interests?

That is absolutely right. Either this is a medical treatment—in which it should be obligatory for a doctor presented with a patient who qualifies under the Bill and has the symptoms that we are talking about to say, “By the way, there is also this option”, which is what I think my right hon. Friend the Member for North West Hampshire is suggesting—or it is not a healthcare treatment at all. Clause 4(1) states that they do not have to raise the subject, in which case they should not raise it, because to raise it is to put it on a par with other healthcare options and therefore implicitly, or indeed pretty explicitly, to say, “This is an option that might be good for you”, which is an enormous communication to make.

I go back once again to the difference between this and withdrawing treatment. I have to say this so many times because it is so important: this is not equivalent to withdrawing treatment because this is not specific to the illness being treated. A person can have a treatment or not, and that will address the condition that they are suffering from. The termination of life does not address someone’s symptoms, treatment, condition or illness; it kills them. It is a different order of intervention. I do not think it is a healthcare treatment at all, and it should not be treated as such.

The hon. Member makes a valid point about the circumstances in which this option would be considered a valid choice for a patient. That brings us back to the fact that we are talking about someone who is going to die; the question is how they are going to die. It is not someone who is going to get better—they are not going to wake up and find that everything is going to be fine. This is about what that death looks like.

Pat Malone—one of our witnesses in oral evidence—had a brother who had seen his father die under circumstances so horrible that he had begged his children to help him die. Then the brother got the same condition and could see what his death could look like. Does the hon. Member not value the choice that assisted dying would give that patient to take back control of what their death could look like, with their loved ones around them? This is a very real situation for, sadly, lots of people, and could be where that choice could be valid.

I was not asking for cases in which it might be the right choice for somebody—I recognise the argument there. I am asking when it might be appropriate for a doctor to suggest it. In the case of the Malone family, if this law had been enforced, they would have requested it themselves. Again, I want to know under what circumstances it would be best for the patient—in their interests—for an assisted death to be suggested to them by a doctor, when they had not raised it themselves. Under what circumstances might that happen?

The concept of a suggestion is also not particularly accurate—it is a choice, in the same way that the other options are a choice. Families could only ask for this conversation if they knew about it, and while we are all living and breathing this Bill at the moment, even if it does come to fruition and the law is changed, there will be people who do not know about this option. Surely, it would not be informed consent for a person to suffer a horrible death if they were not told about this option.

On the suggestion that people will not know that this option is on the table, who are we talking about in those circumstances? I suggest we would be talking about people who are extremely marginalised, and I would be very concerned about a doctor suggesting an option to them. There may be a tiny number of people who would not know that this option is legal, but I am afraid it would be very widely known the minute that it is law.

rose—

I will certainly give way in a moment. An enormous number of people will be dragged into the scope of the Bill by suggestions being made to the vulnerable people that we are concerned about. I really do invite her to answer this as honestly as she can; does she not accept that being given this option by a doctor—given the doctor’s position of power and the vulnerable position that the patient is in—could well be interpreted as a suggestion that this might be a good thing for them to do? Does she does not recognise that?

Order. We should not be addressing Members in that way.

You are absolutely right, Mrs Harris; I am inviting her hon. Lady to intervene as she wishes to, but I recognise she does not have to do that at all.

You should be addressing the Chair.

I recognise that. I should certainly address you, Mrs Harris.

I would like to make a speech that answers some of these points, but I will intervene if that is more appropriate. What would the hon. Gentleman prefer?

Order. That is not a decision for Mr Kruger. If you wish to make a speech, if you indicate to me as the Chair, I will call you at an appropriate time. If you wish to make interventions, please do so, but could you keep them short? Have you decided which option you prefer—at your convenience?

I will decline the hon. Gentleman’s intervention—how about that? I will make his decision for him. Would that be acceptable? I look forward to his speech.

Let me wind up to the general satisfaction of the Committee with a couple of points about some other amendments. On amendment 278, which was moved by the hon. Member for Chesham and Amersham and tabled by the hon. Member for Wells and Mendip Hills—it is a very south and south west debate—the suggestion is that if somebody has indicated in advance that they do not wish to have a conversation about assisted dying, the doctor will not raise it. That sounds welcome, but I am in fact afraid in practice that I think that this is quite simply an invitation to raise the idea if a declaration has not been made.

The absence of a declaration could well be interpreted as a willingness to have that conversation. Practically, how would it work? Would patients be informed of the need to make a declaration in advance of a doctor’s appointment? Would we all have to think, “Goodness, if I don’t make this declaration, the doctor might be suggesting an assisted death to me”? Should we all do that? Suddenly, we are having discussions about assisted death even before we see a doctor. All over the Mendip hills, people will be worrying that before they see a doctor, they had better sign a declaration.

To make a serious point, although the Bill is frequently framed as a choice only for the people who might take it, with no impact on the rest of society, my great concern is that it will actually impose an obligation on every family with a frail, elderly person in it. It will impose an obligation on all of us as we approach our end to consider whether we should take this option or not. It is not neutral in its effect on everybody. My concern is that amendment 278 will bring that home and make it even more explicitly required that we all consider whether we want to have an assisted death well before the time comes.

I think there is already broad consensus in this country: people would like the option of assisted dying. Polling shows overwhelming support for it. I accept that there are disagreements about what the option looks like, but this is not something that people have never thought about before and would suddenly pop into their minds; they have been talking about it for decades and decades. What would the hon. Gentleman say to that?

The hon. Gentleman is right that people are well aware of this topic, and they would be quickly aware of the option if the Bill became law. Without getting into the question of the bogus polling that claims to demonstrate public support, I would simply observe—[Interruption.] Well, it demonstrates support for something called “assisted dying”, but if we drill into the data and ask people explicitly what they mean, we find that they often mean palliative care. The more that people understand what is proposed in this Bill, the less they like it. Actually, other polling shows that there is a majority against the provisions of this Bill, but let us not banter polling around here. We make the law, and we are not responsive to polls, are we?

There is a challenge about making advance notices, and my strong suggestion is that we do not support amendment 278. I had better leave it there; I think we have all had enough of me—me included.

Amendment 124 would prevent a registered medical practitioner from discussing the provision of assistance under the Bill unless it is first raised by the person themselves. This is very similar to another discussion we have had. The reason for my amendment is that the doctor will be suggesting, offering or endorsing assisted dying as a treatment pathway—and that would be new—and the patient may take that as a recommendation or endorsement, which could impede their freedom to autonomously choose assisted death.

Another reason I tabled the amendment is that the Bill risks exacerbating the existing pervasive health inequalities. I am very concerned that biases, both conscious and unconscious, have the potential to significantly impact the treatment pathways offered to people, particularly those who fall under the nine protected characteristics of the Equality Act 2010. Medical practitioners have the potential to influence the treatment pathways offered to people, particularly those from those backgrounds, and I therefore see no reason why assisted dying would be offered as a treatment pathway.

I was thinking of the following example. Under maternity services, we also have abortion services. If someone presented themselves to a doctor and said that they were in the early stages of pregnancy, they would not be offered abortion as an option; they would be asked, “Do you want to have your baby at home or at a hospital? Would you like shared care between your GP and the hospital?” They would not be asked, “Would you like an abortion?” because that is not part of the pathway. For that to happen, the person would go to the doctor and say, “I am pregnant and I would not like to have this baby.” It is therefore important that the individual first approaches the doctor or clinician and says, “I am interested in an assisted death” or “I would like an assisted death.” Assisted dying should not be a treatment option, even if it is part of end of life care.

The doctor’s position is one of knowledge and expertise that far exceeds that of their patient, and that places them in a position of power and influence over their patient. Given that power imbalance, the doctor’s suggestion seems like a recommendation. If an individual chooses assisted death because it feels like a recommendation, that decision is no longer autonomous.

I will quote a GP, Dr Hannah Denno, who put in some written evidence. She cited her role as a GP as being one that needs her patients to take her words as guidance: “I believe that in my role as a GP, to make such a suggestion”— choosing assisted death, for example— “would put pressure on some patients to accept it. At a time of vulnerability many patients are very sensitive to any suggestions raised by a health care professional.”

That is corroborated by another quote, from a senior lecturer at the University of Manchester:

“The freedom for a registered medical practitioner…to raise/discuss the option of seeking help to die…is ethically problematic. The usual therapeutic interaction between a patient and RMP involves the patient seeking advice about their condition and the RMP offering their expert opinion, advice and information about possible treatment/s. Any treatment suggested should be in the best interests of the patient, and deemed reasonable/responsible according to clinical, legal and ethical standards of care. Professional advice regarding treatment will be received by the patient as a recommendation, or at least an option that the RMP views as appropriate.”

There are many examples of where we recognise that the weight of a doctor’s words carry a lot for the patient. If a doctor is offering a course of action, the expectation—rightly or wrongly—is that it might be in someone’s best interest to pursue that course of action. If that option is assisted dying, it is a suggestion to the individual. A strong feeling among many medical professionals, though, is that a suggestion is a recommendation. Any understanding of the doctor patient relationship is that it is always about the wellbeing of the patient. To present assisted dying alongside other treatment options is therefore problematic. We can assume that people know about assisted dying and that it is an option open to them.

One of the healthcare professionals from California who gave oral evidence said that in California only a quarter of the population were aware that assisted dying was a legal option. It was a concern to the practitioner that they were unable to raise assisted dying first. However, it seems incredibly unlikely that that would be the case in England and Wales given the high profile nature of the current proceedings and the significant change it would mark for healthcare services—it would be all over the news and everyone would know that there had been a change in the law.

Unlike in America, where the laws vary from state to state, the law would apply nationwide across England and Wales. It seems likely that citizens in England and Wales would be aware that some form of assisted dying is permitted, even if they are vague about the details. I anticipate that the long term public awareness would be much like it is for abortion—the public know that it is lawful and they have an understanding that a person can get an abortion, but they do not actually know what exactly that all means or what the Abortion Act 1967 means. The fact that people have the knowledge that legal assisted dying is available in this country is enough for people to be able to go first to the practitioner to make the request.

My second concern about healthcare professionals first raising assisted dying as a care pathway is the potential impact on already known health inequalities. Across our healthcare systems, poor health outcomes for marginal groups are a pattern we have understood for decades. A report on black maternal healthcare states:

“There are…glaring and persistent disparities in outcomes for women depending on their ethnicity. Maternal mortality for Black women is currently almost four times higher than for White women. Significant disparities also exist for women of Asian and mixed ethnicity. These disparities have existed and been documented for”

decades, but only recently received mainstream attention, since around 2018. That means that if there are disparities in the way assisted dying is offered if a patient cannot go to the doctor first, we will only know about them many years later. A safeguard is that the doctor does not approach the patient first.

The Committee has heard many times that during the pandemic disabled people were subject to DNR orders. Disability Rights UK says:

“It is unclear how many of those deaths could have been avoided with greater access to treatment and resuscitation.”

A Public Health England report on the early pandemic showed that adults with learning disabilities were over represented by more than three times among those who died during the pandemic. Other people have said many things about the impact on deaf and disabled people and how they are treated. The UK Deaf and Disabled People’s Organisations’ Monitoring Coalition said that, if doctors are able to approach a patient first, the Bill presents

“a serious risk for medical coercion. Negative judgements made by medical professionals about the quality of Deaf and Disabled people’s lives too frequently result in deaths by neglect and denial of life saving treatment, as was starkly highlighted during Covid.”

If we are to acknowledge the trend of health inequalities, we are presented with an unquestionable quandary when it comes to regulating assisted dying. People who fall under the protected characteristics, and those from less privileged backgrounds, may be more likely to be offered assisted death instead of more involved palliative care, whether that is due to unconscious bias, stereotyping or discrimination. By removing the option of a healthcare professional first raising assisted dying with a patient, we seek to alleviate the risks that already marginalised groups would be subject to with regard to assisted dying if a healthcare professional suggested it to them first.

It is a pleasure to serve under your chairmanship, Mrs Harris. I wish to concentrate my remarks on new clause 6, which I tabled, but also to speak to amendments 8 and 124.

To be clear, new clause 6 is a probing amendment that was tabled to air the debate on the record. I tabled it because of the interplay between the Bill as currently drafted and section 26(1) of the Mental Capacity Act, which sets out that a “decision has effect as if”

the individual “had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued.”

Of course, an advance directive relates to decisions around the removal of treatment. The mischief that I was seeking to address is that there are patients who, were this law to be enacted, would continue with their palliative care treatment right to the very end, before they chose to have an assisted death. Technically, there could be a scenario where that person, from the point at which they have gone through the two stage assessment by a doctor and it is been approved by the panel—if that is approved in subsequent amendments—loses capacity after they have set out a desire to end their life through an assisted death, but there would be the option to remove the palliative treatment options at that point. There is a conflict in respect of an advanced directive that would enable the assisted death to take place, which would involve the removal of care.

I am grateful to my hon. Friend for setting it out so clearly, but I would like a little more clarity because I do not fully understand. My understanding from the Bill is that at the moment of the administration of the fatal drugs—the final act, as it is called—the administering doctor has to be confident of capacity. Were a person no longer conscious at that point, the doctor would not be able to proceed.

The purpose of new clause 6 is to get clarity on that issue, because of the interplay with section 26 of the Mental Capacity Act, which states that if a patient “has made an advance decision which is...valid, and...applicable to a treatment...the decision has effect as if he had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued.”

I am not suggesting for a moment that seeking an assisted death is conventional treatment in the normal sense, but there will be patients who seek an assisted death and have palliative care treatment along the way, so there could be a technical scenario whereby the palliative care treatment is withdrawn for the assisted death to take place.

There is an element of mischief in my probing new clause, but it is to air the matter in debate. In truth, intervention there are a variety of options with any withdrawal of treatment or any treatment. I wanted that on the record. I have had assurances from the hon. Member for Spen Valley that that is clearly not the Bill’s intention—in many ways, I am arguing against my own new clause. Of course, this is a distinct scenario from an advance statement—the much more proactive step of, “These are the treatments or options that I would like if I lose capacity at a future date”—which has no legal footing. An advance directive, in comparison, is very much concentrated on the withdrawal of care. I do not propose to divide the Committee on the new clause; I merely tabled it so that this could be discussed.

Let me turn to amendments 8 and 124. There has been much discussion and worthy debate on the position of Montgomery, which takes me back to my days as a pupil barrister grappling with issues of consent. I fear that we may be going down a rabbit hole in discussing Montgomery in this context. I agree with my hon. Friend the Member for East Wiltshire that an assisted death is not typical medical treatment in the normal sense of those words; it is a wider holistic medical intervention. Therefore, my understanding is that Montgomery would not apply in those circumstances.

However, some of the principles around Montgomery way well have justification. My concern about the amendments is that while it is quite right that there should be no requirement to instigate those discussions, it would be equally wrong not to allow the flexibility to have that conversation in appropriate circumstances. The reality of clinical practice is that there are consultations within consultations. A patient who comes to a surgery to see their doctor may not feel able to articulate what they truly feel. They may give subtle hints, which doctors pick up during the course of a long career—to put it in lay terms, doctors read between the lines.

There is interplay with the principles of Montgomery, which is clear that a doctor should discuss issues where a reasonable person in the patient’s position would attach significance to them or the doctor is, or should reasonably be aware, that that particular patient would attach significance to them. My hon. Friend the Member for East Wilshire asked for examples of that. There are scenarios where there are subtle hints from a patient who has been given a terminal diagnosis. They ask, “What is the implication of this terminal diagnosis? How am I going to die, doctor?” The doctor says, “There are variety of ways in which this may manifest itself” and goes through them. Some of them may be more tolerable to the patient than others.

Take the example of bowel cancer. It would be inaccurate not to include in the discussion, if a patient has directly asked how they are going to die, that there is a possibility that their bowel will obstruct and, depending on where the bowel obstructs, the patient may suffer from significant bloating, pain and discomfort. They also may have faecal vomiting. They may be vomiting for hours, maybe even for longer than that. The patient may say, “Doctor, I hadn’t even thought it was going to be like that. I had thought I would slip into a coma and I would gently pass away with my family around me. It hadn’t even crossed my mind that it may be a more uncomfortable or painful or unpleasant death. I don’t want that. What can I do?”

Under the proposed amendment, the doctor would not be able to raise assisted death at that point, which is an option that is available if the law passes. It may not be an option that is palatable to some people, even after the debate—people may have, for very valid reasons, a moral objection or a principled objection to anybody undergoing an assisted death—but once it is on the statute book, it is an option for individuals. The danger is that we place our clinicians in an unenviable position. We cannot force them to have that conversation, but if the patient clearly indicates that they want it—they have indicated that they want to know the options available to them—where does that leave the clinician?

I am grateful to my hon. Friend for setting out the scenario so clearly. To summarise, he is suggesting that if a patient with bowel cancer says to their doctor, “How am I going to die?”, the doctor would say, “Well, one possibility is that you will die very badly, vomiting faeces,” to which the patient says, “My goodness, I’d never thought of that. What can we do about it?”, to which the doctor should say, “Well, there’s always assisted dying.” I summarise and condense the conversation, but that is the conversation that my hon. Friend is envisaging, is it not?

My hon. Friend summarises a much more complicated conversation; I think he distils it down to an over simplistic representation of how the conversation would go. A patient says, “I hadn’t envisaged that I may die while vomiting up faeces. What could we do?” The clinician would go through a variety of options that would be available in that scenario, but that would include, potentially, having a discussion about assisted death, as that would be one way of avoiding that situation coming across the hills.

This is the issue I have particular concern about. In the scenario where that conversation arises, a patient has very clearly indicated that they want to know all the options available for how they would manage their death, and the doctor feels that is a cue, quite understandably and, in my view, rightly, to have a wider conversation that involves assisted death, along with other options, because he or she believes that the patient has indicated that that is what they wish. If we say that a doctor cannot have that conversation in any circumstances, we open up the clinician to the accusation, perhaps from a relative, who says, “Hang on a minute, doctor. My relative didn’t raise that with you. You raised it with them.”

These are very subtle and carefully balanced conversations. I understand where the amendment comes from, but without trusting in the judgment of clinicians, who know their patients well, we are setting them up to fail. We are setting the system up to be more clandestine. We are going to prevent what are very genuine and important conversations from taking place, because people are too scared of the operational framework that would be imposed on them. In those circumstances, we would put forward a Bill that does not function as intended. For those reasons, I will not support amendments 8 and 124.

It is a pleasure to serve under your chairship, Mrs Harris.

Of the three amendments in my name, I come first to amendments 319 and 320. Clause 1 outlines that the legislation relates to a terminally ill person who “is aged 18 or over at the time the person makes a first declaration”.

It does not, however, refer to the age that an individual needs to be at the time of an initial discussion in line with clause 4. The definitions in the Mental Capacity Act, which have now been agreed as part of the Bill, relate to those aged 16 and over. Given that we have now accepted that, I presume that the discussions referred to in clause 4 could be held with 16 and 17-year olds.

I appreciate that there will be different views on the matter, in relation to autonomy, but I think that even some of the strongest supporters of the Bill will be uncomfortable with those conversations being undertaken with someone as soon as that person turns 16. My amendments seek to make sure that the Bill includes the strongest possible safeguards, by ensuring that the relevant aspects of the Bill relate to those who have attained the age of 18. Surely it would make sense that if a person has to be 18 to agree to the first declaration, they also have to be 18 to have the initial discussion.

I now turn to amendment 339, which stands in my name. As hon. Members know, this issue has been a great preoccupation of mine on the Committee. I know that my hon. Friend the Member for Penistone and Stocksbridge wishes to comment on the matter, and I am aware that there may be concerns about some of the wording in the amendment, but it was tabled following the oral evidence we received from Mencap and was, in the initial instance, in the wording that Mencap requested.

I remind hon. Members of the evidence from Mencap. Dan Scorer talked to us about two principal concerns, initially. One was about preliminary discussions, and how the initial conversation is initiated and structured is a key area that Mencap has concerns about. He said that for Mencap “that really leads into a conversation around rights to advocacy. It would be extremely concerning if people with a learning disability who were terminally ill were not fully prepared and supported for that discussion…For us, this links into the experiences that we had during the pandemic, which were touched on in yesterday’s evidence session by Dr Griffiths and others. We had people with a learning disability who were being consulted by medical professionals about ‘do not resuscitate’ or ‘do not treat’ decisions, and they were not being properly prepared for or supported in those discussions.”

He went on to say that Mencap wants to see “a right to advocacy included within the Bill to support people considering their end of life options.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 269, Q350.] We then move into the domain of amendment 8—tabled by my hon. Friend the Member for Blackpool South (Chris Web)—on initial discussions. As Dan Scorer told us, Mencap’s concern is about how discussions around assisted dying are initiated: “For many people with a learning disability who are terminally ill and in an incredibly vulnerable position, doctors are very important and influential figures. Having a doctor come to you and say, ‘What do you think about assisted dying—is that something you might want to consider?’ could move them towards or into potentially accepting a course of action that they had never considered before.”

That is why he then went on to talk about advocacy supporting that discussion, saying: “Individuals should be able to choose who supports them with those discussions, whether it is friends or family members or an independent advocate”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 273, Q355.] In concluding, he said he felt that some of that “would reduce the risk, which is absolutely there, that people could take the initiation of that discussion as a statement, ‘This is what you should do.’”.

He said Mencap’s position was: “We absolutely do not want people to be in that position. We want strong safeguards and support in place if the Bill becomes law.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 280, Q366.] It is no secret that my greatest concerns relate to capacity and supporting those with learning disabilities. As well as my earlier two amendments, I will press my amendment 339; I hear that there may not be a vote on it. I also want to touch on amendment 368, in the name of the right hon. Member for East Hampshire (Damian Hinds), as it also feeds into the conversation about the initial discussions.

There are swathes of written evidence from the Down’s syndrome community. The written evidence supplied by Lucienne Davies from Get On Down’s states: “There is an obvious worry about informed consent for people with learning disabilities. As a group we are fully aware that people with Down syndrome are extremely vulnerable to the intentions and suggestions of caregivers, health professionals and authority figures, informed consent is therefore a major concern in end of life decisions.”

The Down’s Syndrome Research Foundation UK also emphasised the issues that arose during the covid-19 pandemic, when “we saw a deluge of temporary changes sweep away many safeguards and rights. During the pandemic, individuals with learning disabilities, including those with Down syndrome, had a death rate of six times higher than average. It is not known how much the actions of health professionals played into this, but there are some disturbing concerns.”

The Portsmouth Down Syndrome Association has listed a whole range of concerns. It says that standard practice has not been followed with this Bill. I know that the hon. Member for East Wiltshire has mentioned some of this, but the association’s evidence says: “Typically, the government recommends a 12–16-week period for public consultations to ensure comprehensive input and discussion. This Bill has not adhered to this standard, compromising the depth and quality of the consultation process. Rushing the legislative process has led to insufficient public engagement, overlooking diverse societal values and ethical viewpoints.”

The evidence goes on to lay out concerns about vulnerability to coercion, challenges in assessing capacity, ethical implications, misinterpretation of wishes and an over emphasis on disability.

The all party parliamentary group on Down syndrome has provided us with a lengthy submission. Again, I will not go into great detail on it, but it mentions expert consultation, the legal requirements and the challenges in front of us, those medical capacity considerations, the vulnerability of individuals with learning disabilities, additional complicating factors and ethical challenges, and, again, the learning disability mortality rate.

My intention is to press the three amendments in my name, amendments 319, 320 and 339. I have concerns, as many people do, about the discrepancy between the wording in clause 4 and in later clauses, in relation to the age requirement of 18. I look forward to the debate on amendment 339, which relates to learning disabilities; other amendments on the topic may well come forward in due course.

We have heard very clearly the concerns from the Down’s syndrome community and from Mencap about learning disability and the role of advocates, family members and carers. It is incumbent on us to listen to that advice and ensure the strongest possible safeguards for the people who are most vulnerable in this conversation. We must ensure that those safeguards are in the Bill.

It is an honour to follow my hon. Friend the Member for Bexleyheath and Crayford. I rise to speak to amendment 8, which stands in the name of my hon. Friend the Member for Blackpool South (Chris Webb), and amendment 276, in my own name. I note that the hon. Member for Solihull West and Shirley spoke to amendments 8 and 124, which overlap and complement each other, although they are slightly different.

Before I get to the crux of why the Committee should support amendment 8, it may be helpful to spell out what it would do. Currently, clause 4(1) reads: “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.”

The amendment would change that to: “No registered medical practitioner shall raise the subject of the provision of assistance in accordance with this Act with a person who has not indicated to that or another registered medical practitioner that they wish to seek assistance to end their own life.”

In a nutshell, that would mean that a doctor could not be the first person to raise assisted dying with a patient. The patient would have to raise it first, either with the doctor who had the initial discussion or with another doctor who referred the patient onward.

I urge Members to support the amendment, because it would provide another safeguard for vulnerable people. Many people affected by the Bill will be isolated; many will be poorly informed on medical matters and reluctant to ask questions of doctors.

My hon. Friend makes the case that some people will not be given the full range of medical options available to them. Presumably, though, the amendment would limit that even further, because they will not be able to understand assisted dying fully unless they have raised it themselves. We are actually restricting the full range of medical options for those people.

That is not what I am trying to get to here. Maybe there is some confusion on my part; I will make it clear as I carry on. The issue is that people already know that assisted death is an option in the wider context, just like when we talk about abortion, as my hon. Friend the Member for Broxtowe pointed out earlier. I am supporting amendment 8 because it further safeguards people, as the practitioner cannot be the one to raise it. Perhaps if I continue with my speech, my hon. Friend the Member for Ipswich may find his answer. We can come back to it if necessary.

As I was saying, many people will be poorly informed on medical matters and reluctant to ask questions of doctors. Many will have capacity under the Mental Capacity Act but, as we have heard from my hon. Friend the Member for Bexleyheath and Crayford, they will have greater capacity to take some decisions than others. For all those people, there is a danger that if a doctor raises this subject first, they will hear it not as a neutral comment, but as a suggestion. Not all of them will hear it as such, but some will.

Although not all expert witnesses who appeared before us endorsed that view, it is a concern that some raised. Others took a different view, such as the British Medical Association, which wants doctors to be able to raise assisted dying. It gave several reasons in its written evidence: “Doctors should be able to talk to patients about all reasonable and legally available options…Doctors should be trusted to use their professional judgement to decide when and if a discussion about assisted dying would be appropriate, taking their cue from the patient as they do on all other issues…A prohibition would also create uncertainty and legal risks for doctors, which may inhibit effective doctor/patient communication and understanding.”

We cannot simply adopt or reject the amendment because of what the experts say. Instead, we must go through the arguments that the different experts made and consider which we find most convincing. It is our responsibility as legislators to make this decision. Personally, I found the voices raising concerns to be deeply convincing.

As with all this Committee’s inquiries, we must look at everything from the angle of safeguarding those who are vulnerable across society. For example, if someone is isolated, with very few close relatives or friends, and if they feel that they cannot challenge what the doctors say to them, they will be deeply trusting of or even dependent on their own doctor. That is not to say that we should be cynical about doctors, who are giving vital support to our most vulnerable citizens; it is to say that we have to look at the reality.

There is one kind of relationship between a confident and socially well supported person and their doctor. For some who may lack confidence and have little or no social support, that relationship may well be very different. That point was repeatedly stressed by senior doctors who gave evidence to the Committee. We heard from witnesses that they do not think that this is a hypothetical danger.

Let me remind hon. Members of some of the expert witnesses who told us about the real risks posed. Dr Rachel Clarke, a palliative medicine doctor at Oxford, said: “If, for instance, you say to a vulnerable patient who has just been told they have a diagnosis of terminal cancer, ‘Have you thought about assisted dying?’, I would suggest that stating it broadly like that is a form of pressure and that you are potentially unintentionally coercing that patient. The very act of raising assisted dying in that way will make that vulnerable patient think, ‘God, is this doctor telling me that my life is not worth living any more?’ Autonomy is much more subtle and complicated than we assume from outside.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 75, Q93.]

My hon. Friend makes a powerful point, but I would gently point out, as has been said already this afternoon, that the conversations between doctor and patient will not be that straightforward. A range of options will be presented to the patients. I do not think it would be a case of “Here is the option of assisted dying. This is your only option.” There will be a huge range of options on the table, as is right and proper.

It is the right and proper thing to do to give options, but we are talking about vulnerability. We have had the debate a few times now about people with vulnerability, and we heard during evidence sessions about coercion, capacity and all the issues relating to amendment 8 in respect of those with vulnerabilities being presented the option of assisted death. When I speak to my next amendment, I will cover some of this, because the Bill does not necessarily leave us with confidence that vulnerable people will be safeguarded. That is what amendment 8 also seeks to address.

Dr Rachel Clarke is a doctor who spends every working day with people who need palliative care. Her evidence cannot be laid aside. Dr Jamilla Hussain, who also gave evidence, is in favour of assisted dying in principle, but she raised significant concerns about the Bill as drafted, including on this issue. Dr Hussain said that her patients in Bradford have reduced access to palliative care, partly because they fear that doctors might try to end their life. She talked about how she worked with “not only ethnically diverse communities, but those who are socially disadvantaged…I have taken this Bill to them and they have made it really clear—this is not just one community, but several, and I am not speaking on my behalf, but on theirs—that they are really fearful because this is what happened to them in covid. It affected everyone, but it affected some communities disproportionately because our services are not equitable. That could profoundly affect their healthcare, and not only in terms of end of life care. They are saying, ‘We will not even come to hospital ourselves, because we are worried that this would happen.’ This is not an academic or theoretical risk. We saw it happen in covid in Bradford. There were communities so worried that their loved ones were dying in hospital that they stayed at home and died earlier.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 190, Q247.] Perhaps in some cases they died a death that could have been preventable. Dr Hussain said that it is “not a theoretical risk.”

Dr Hussain also said: “The risk for somewhere like Bradford, where we are doing okay—we have a long way to go—is that the Bill creates a fear in those communities. I have been going out and trying to build trust—being trustworthy—and they made it really clear to me by saying, ‘We trust you; we don’t trust the system. So if I came into hospital, even if your team was there, I would be really scared to access palliative care.’ In a system that is doing okay, we are now adding this new risk. We need to mitigate against that.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 199, Q259.] That is what we need to do. We need to listen to what the doctors who are treating vulnerable patients say about the risks to those people.

My hon. Friend will recall that we heard evidence from doctors from Victoria, which has a so called gag clause; I think it was Dr Furst who said that that was “really problematic”. What does my hon. Friend make of the guidance from the Victoria Government? It states that under that clause a patient who asks a doctor, “Can you give me all the options?” is not allowed to discuss assisted dying; indeed, if a patient says, “Isn’t there something you can do to help me put an end to this?” the doctor cannot discuss assisted dying either. Does my hon. Friend agree that that is an example of a gag clause being deeply unhelpful to doctor patient discussions?

I am not sure that the amendment would be that kind of gag clause, so I disagree. If a patient says, “Give me all the options to bring an end to this,” the judgment of the doctor could be that assisted dying is an option. If that is the case, perhaps we need to look to the Government’s and Ministers’ wash up process. When we are tidying up this Bill, I am sure that there will be plenty of opportunities for the Government to put in the significant words that safeguard patients. That is my feeling, but I thank my hon. Friend for his intervention.

The clear implication of the amendment is that if the patient requests to know what can be done to end their life, that is an invitation to raise the option of assisted dying; if they ask the doctor about what can be done to deal with the pain, symptoms and illness, they should be offered information on that. I am afraid that it comes back to the distinction between its being a healthcare option and not being a healthcare option. Does the hon. Lady agree that the evidence from Australia is clear that the minute there is a law like this, there will be challenges to the safeguards? Each safeguard will be seen as a barrier to a human right and a barrier to access. That is what the Australians told us.

I agree that that is what the evidence shows us, and there are many concerns in other jurisdictions as well. I will come back to that distinction.

The evidence that I have heard, both in Committee and from other sources, shows that the gagging clause leads to complete absurdities. Doctors feel completely unable to look after their patients and inform them of their options, and this leads to conversations that involve winks and nods. That is exactly what the Bill is trying to stop. Does my hon. Friend agree? I sense not.

Unfortunately, I do not agree. I do not even agree with the term “gag clause”, which has been used a few times now. From where I stand, this is not a gag clause; it is an amendment that protects those who are most vulnerable. In Committee I have referred continuously to the most vulnerable, as have other hon. Members, and I will return to the evidence from Dr Jamilla Hussain. I do not agree with my hon. Friend’s position.

We need to listen to what doctors who are treating vulnerable patients say about the risks to those people, and then we need to amend the Bill to reduce those risks. Bluntly, there is a choice here. The British Medical Association says that if the Bill becomes law, doctors should be able to raise the subject of assisted dying with patients. Palliative medicine doctors such as Rachel Clarke and Jamilla Hussain, who deal with this every day, are deeply concerned by that prospect, and they want us to avoid it. There is no papering over this: the doctors disagree and it is up to us—the Committee— as lawmakers, and this House, to decide which of them makes the stronger case.

I genuinely think that the BMA makes a strong case. There is no doubt in my mind that it is motivated by empowering doctors to give the best possible care to their patients. It is natural that the BMA looks at existing practice among doctors. Currently, doctors can discuss all possible treatments and pathways with patients—the key words being “possible treatments and pathways”—so the BMA makes the case that that should also be true for assisted death.

In the end, however, I cannot agree with the BMA for one reason: assisted dying will be qualitatively different from every previous kind of medical intervention that has been legally permitted in this country. We have never permitted doctors to legally assist patients to take lethal drug combinations with the sole purpose of ending their lives. Some things really are different from what has come before; if the Bill becomes law, assisted dying will be one of those things.

If the Bill becomes law, it will mark a departure from previous practice in revolutionary ways, so we have to consider the possibility that it should also depart from the previous practice, in which doctors should be able to discuss all pathways with their patients. I think it should, and the key factor for me is the testimony given to the Committee by palliative medicine specialists: doctors like Jamilla Hussain and Rachel Clarke.

In the interests of balance, would my hon. Friend also acknowledge the testimonies we heard from Dr Jane Neerkin, Dr Sam Ahmedzai and other palliative care specialists who had a very different view?

I do acknowledge that, but ultimately I am a Member of Parliament for my constituency of Bradford West, and we have a doctor who has been doing research with its communities. I come from a community where there is huge deprivation: Bradford West has two of the most deprived wards, and one of the youngest populations. During covid, people there were DNR ed—so they do not have that confidence.

I accept that others may have different opinions, but I come back to the point that I made earlier: which case is more convincing? Do we raise the safeguards? Dr Jamilla supports assisted dying but she made it clear that, although she supports it for some people, who may well benefit from assisted death, the truth is that there are people who the Bill fails to protect. That is what I am speaking to, and that is what amendment 8, tabled by my hon. Friend the Member for Blackpool South, speaks to.

The Committee is talking about people who are facing the ends of their lives. On every day of their working lives, doctors who have spoken to this Committee talk to those people. They are treating exactly the kind of patients who may seek assisted dying if the Bill becomes law. They are deeply concerned that if doctors raise the subject of assisted dying with their patients it will, in too many cases, seem like a suggestion.

I appreciate that this is a private Member’s Bill and not a Government Bill, but that places an even heavier burden on us to get things right. We cannot ignore the testimony of those who have the most relevant experience. Too many Government Ministers, MPs and local councils from all parties, including mine, have done that in recent decades.

For example, the sub postmasters and sub postmistresses said for years that the Horizon system was not working, but Ministers from my party, and from the Conservatives and the Liberal Democrats, said that they were wrong. Time and again, they were dismissed. Ministers thought that they knew more than the people who were using Horizon on a daily basis. Now we know exactly who was right.

Similarly, for three decades, several thousand NHS patients, mainly haemophiliacs, claimed that they had been negligently given transfusions of blood infected with hepatitis and HIV. Minister after Minister, first from the Labour Government of the ’70s, then from the Conservatives, then Labour and then the Conservatives again, insisted that no such thing had happened. Some conceded that perhaps it had happened—but on a small scale. In 2017, to her credit, the then Prime Minister Theresa May announced a public inquiry into those claims. It turned out that the patients were right and the Ministers had been wrong.

That is what I am talking about. Several highly experienced palliative medicine doctors warned us—

Order. I remind the hon. Member that while her arguments are valid, she needs to come to the end of her examples.

I have just finished that example, Mrs Harris.

Several highly experienced palliative medicine doctors have warned us that doctors raising assisted dying with patients would have two very harmful effects. The doctors said that it would scare patients away from palliative care, especially those from minority communities or disadvantaged backgrounds. They also warned that in some cases, if a doctor raised the subject of assisted dying with a vulnerable patient, that person would not hear it as a possibility being discussed; instead, they would hear it as a suggestion from a powerful person who, in some instances, they might be scared to challenge.

The question we have to ask ourselves is: are we going to be that Committee that ignored the evidence of the experts who deal with this issue on a daily basis on the frontline with those very people at the end of life who the Bill is actually aimed at? Or are we going to risk being part of a future assisted dying Bill scandal because we placed ourselves above those experts by supporting a view of a wider body? That body has very valid reasons—no doubt—from its own position but is not, in its entirety, a frontline delivery expert, as palliative care doctors are.

Those warnings are too stark for me—for any of us, I submit—to ignore. We cannot ignore the concerns that those doctors have raised. If any Committee member accepts the concerns of the experts, that a vulnerable person would not hear assisted dying as a possibility being discussed but instead as a suggestion from a powerful person, I sincerely hope that they will vote in favour of this amendment.

I turn to amendment 276, which I tabled. It would add a subsection to clause 4, which concerns the initial discussion between a person with a severe illness and a medical practitioner. This new subsection would impose a pause or an interval of 28 days between a person receiving a diagnosis and prognosis of the illness that might end their life within six months, and when they could speak to a doctor about assisted death. Currently, there is no such interval. I tabled this amendment in response to the concerns raised by several senior and experienced doctors in evidence to this Committee.

Several doctors who gave evidence—especially the psychiatrists—noted that a diagnosis of serious illness often leads to a major increase in depression and a desire to hasten death. However, on depression and the desire for death, the psychiatrists also said that when a patient gets treatment for their physical symptoms alongside social care and sometimes psychological treatment, that person may well change their mind. This amendment aims to prevent people from opting for assisted dying while they are suffering from the initial shock of having a serious illness diagnosed.

Let me talk in more detail about some of that evidence. In particular, I will bring the Committee’s attention back to Dr Annabel Price, vice chair of the liaison faculty at the Royal College of Psychiatrists, who has great expertise in this field. I will quote from her evidence at some length, because she talks very clearly about the evidence that we have about the effect of a diagnosis of serious illness on somebody’s mental health. Her evidence raises very important concerns about how the Bill, as it is written, would affect patients who have just received a diagnosis of serious illness. She said that “if we think about people with palliative care needs towards the end of life—so the people who would qualify under this Bill—around 20% will have diagnosable depression, around 10% will have a wish to hasten death, and around 4% will have a more persistent wish to hasten death. Those wishes may not be expressed unless they are assessed for. One of the things that I would do in my clinical practice would be to look for treatable mental disorder in people who express a wish to hasten death.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 270, Q351.] Dr Price went on to say: “There is a lot of research evidence around depression in people with palliative care needs and people nearing the end of life. We know that depression is common, and across a number of studies it is at around 20%—much more common than in the general population. We know that depression is strongly associated with a wish to hasten death, and that if depression is found and treated in that group of patients, there will be significant change in the wish to hasten death.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 275, Q359.] Dr Price also went further and said: “There are a number of associations other than depression with a wish to hasten death, and they include difficult symptom experience, poor functional status—needing a lot of help with things—and being socially isolated. Those are really key ones. They also include a sense of loss of dignity and feeling like a burden on others. These things can all come together to make life feel very unbearable. We know that there is also an overlap between a wish to hasten death, which is a response to suffering, and feeling that one is better off dead, ending one’s own life or harming oneself. I was involved in a study where we asked people both the wording of “a wish to hasten death” and the suicide question from the PHQ9, which is a depression screening tool. Those who had a wish to hasten death were 18 times more likely to also feel suicidal, according to the psychiatric definition, than people who did not have a wish to hasten death. There is a strong association.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 275-276, Q359.] I have quoted Dr Price at length because she sets out clearly some of the problems we need to address before the Bill will be fit for purpose. From her evidence, we know that when people receive a diagnosis of a serious illness with a prognosis that they may have around six months to live, that has serious psychological effects. We also know from her evidence that one of those psychological effects is what she called an increased desire to “hasten death”. She said that, in some cases, this means that the patient becomes “suicidal”, while in others it may not mean that the patient is suicidal, because they do not want to positively do something such as killing themselves, but they do wish that death would come to them sooner. It should be clear to us that a desire to hasten death will certainly be relevant to the decisions of any patient who wants a discussion on assisted dying.

Finally, and perhaps most importantly, Dr Price provided evidence that if a patient’s desire to hasten death increases immediately after the diagnosis of a serious illness, it is likely to decrease once several things have happened. In a psychiatrists’ survey of patients, they found that the desire to hasten death often decreased once the patient had time to reflect on their diagnosis and prognosis; once they had received adequate medical care; once they had social care to allow them to live their day to day lives and, in some cases, to relieve their isolation; or in some cases, once they had psychiatric support and adequate pain relief or intervention to relieve them of their pain. In practical terms, we have evidence that a patient who has just had a diagnosis of serious illness with a prognosis of possible or likely death within six months would be more likely to want to die.

The amendment would add a 28-day period between the diagnosis and the start of the conversation about assisted dying. Having listened to hon. Members speak and given the evidence that we have heard, does my hon. Friend think that patients should have not only a 28-day gap, but access to a psychiatrist before the discussion of assisted suicide should start?

My hon. Friend no doubt speaks from his experience of being a mental health nurse. I think there is space for that, and there are amendments that we will come on to when we talk about later parts of the Bill that deal with those initial conversations. I will be happy to address that issue then. I also welcome any more support that he can offer on those conversations based on his expertise.

As I was saying, in practical terms, we have evidence that in many cases, although not all, that desire will fall once a patient has had time to think through their diagnosis and once they have had good medical care for their illness or condition, and, in some cases, psychiatric support—a holistic package, perhaps even with social work intervention. Surely all Members would agree that we should give seriously ill people, who have just had such a shocking diagnosis and prognosis, time to think and to receive good medical care before they start the process of applying for assisted death. That surely applies to those of us who voted for the Bill on Second Reading every bit as much as those of us who voted against.

I will put it as plainly as I can: there is a significant risk from the Bill that people will be shocked by their initial diagnosis and prognosis, and, in that shocked state, will be more likely to apply for assisted dying. There is also evidence, however, that if they were to pause between the diagnosis and applying for assisted dying, they would be much less likely to have an increased desire to hasten death. This amendment would not be a perfect protection for people suffering from the shock of their initial diagnosis and prognosis, but it would be a clear safeguard that would protect many of them.

I want to make it clear that I was probably 60% against and 40% in favour of the Bill on Second Reading; I want to see a stronger Bill, with protections for the vulnerable. There is a significant group of vulnerable people who this Bill would put at increased risk—those who might take a decision to apply for assisted dying that, if they had had time to consider it and to receive medical and social care, many would not have taken. I ask hon. Members to support my amendment.

It is a pleasure to serve under your chairship, Mrs Harris. I will be supporting amendments 319 and 320 tabled by my hon. Friend the Member for Bexleyheath and Crayford. I am a great admirer of my hon. Friend’s work in championing people with learning disabilities, and his mission to give them a strong voice in this Bill. It is an area very close to my heart, having spent over a decade and a half working with people with learning disabilities and the advocacy organisations that support them.

I will, however, not be supporting my hon. Friend’s amendment 339, merely because I am drafting something to strengthen those measures even further. My amendments will go beyond amendment 339 and amend the code of practice so that seeking advocacy and access to an appropriate adult applies across the pathway to those seeking assistance, not merely in relation to the content of clause 4, as in that amendment.

I want to ensure that access to an independent advocate or appropriate adult is expanded to cover those with autism, a learning disability or a mental disorder, which is not currently covered by amendment 339. That will enable those people to engage with any of the provisions under this Bill through the support that they would receive from an independent advocate or appropriate adult.

As I say, I am also seeking to strengthen access to such advocacy across the pathway, through seeking assistance at each stage. I have huge respect for my hon. Friend, but I want to make sure that we specifically include the language of “mental disorder”, to make sure that that particular group of people with mental health problems is able to access independent advocates, as well as those with learning disabilities and autism.

I am also looking at whether we need a consequential amendment or new clause that would make the Secretary of State put in place provisions for regulations as to the appointment of persons as independent advocates in order to ensure that those seeking assistance under the legislation who have a learning disability, autism or a mental disorder can have proper access to such advocates. That would strengthen the resource provision and access for that group.

I have worked closely with Mencap on the amendments that I am drawing up and will continue to do so, and I would welcome input from my hon. Friend the Member for Bexleyheath and Crayford. Although I support his intent in principle, I will be tabling amendments to cover a broader group of individuals to access such appropriate adults and independent advocates, so that they can seek and access advocacy across the pathway and period of seeking assistance. My amendments would put access to appropriate adults and independent mental health advocates on a much firmer footing in the Bill.

I wish to speak briefly to amendment 270, in the name of the right hon. Member for South West Wiltshire, to which I have put my name. It is about the really important issue of assessing suicidal intent as part of the assessment as to whether somebody has capacity to seek an assisted death. It is a really important point. The Bill expressly sets out that the person seeking an assisted death should have “a clear, settled and informed wish to end their own life,”.

Amendment 270 seeks to establish that the wish cannot be clear or settled if there is any doubt about whether the person has a suicidal intention instead of seeking an assisted death on the basis that they have a terminal illness. In its current form, the Bill does not require a structured assessment of whether a patient is experiencing remediable suicidal risk factors, such as treatable depression, external pressures or suicidal ideation, before assisted dying is discussed.

In the oral evidence, Dr Mulholland said that most people with depression, anxiety and other mental health problems “would have capacity” under the Mental Capacity Act because it would be presumed. It is not necessarily an obstruction to people being referred for anything. It is an important point that someone can have depression and that it can lead them to have suicidal thoughts, but under the Mental Capacity Act they would still be assessed as having capacity to decide that they wanted an assisted death.

What is really important is that we have, over some years in this country, developed a suicide prevention strategy. I am sure that every Member in this room has had constituents approach them, as I certainly have, about family members who have committed suicide, where they were able to identify factors that made that suicide preventable. That is why it is so important that the suicide prevention strategy has been developed and continues to be developed, and why leading figures associated with that strategy—and with suicide prevention more widely—are concerned that a Bill for assisted dying may undermine suicide prevention strategies. We should take every care to prevent that in this Bill.

The current UK suicide prevention strategy cites early intervention as a priority to implement tangible actions aiming to reduce the risk factors of suicide. In line with that strategy, amendment 270 provides early intervention that aims to identify the symptoms of suicidality in a patient before the initial discussion about assisted dying can take place. At the bare minimum, someone who is severely suicidal will not be allowed to enter into conversations about receiving an assisted death.

It is important to reflect that suicidal ideation is not the same as a settled wish to die. Evidence shows that when mental health issues are treated, many patients no longer seek to end their life by suicide. Dr Price, in the oral evidence, said that 20% of terminally ill patients experienced depression, which is strongly associated with the wish to hasten death. When depression is identified and treated, the wish to die often diminishes. It is so important to distinguish and make provision for those people who are experiencing a wish to die as suicidal ideation, as opposed to the “clear, settled and informed wish”

specified in the Bill.

Research from the Office for National Statistics, King’s College London and the University of Manchester suggests that people diagnosed with a physical terminal illness are at an elevated risk of death by suicide, because of an increase in the psychological distress that can lead to severe depression in many patients, but data from the study shows that it is a more pronounced risk of suicide in the first six months after diagnosis or first treatment and, on average, suicide rates in the first year after a terminal diagnosis were 21.6%. Of course, it is important to reflect on the fact that a diagnosis of a terminal illness can take place some years in advance of the actual prognosis that the person’s death may occur. We are looking at a group of people who are within six months of their death as far as can be established by what is, as we know, uncertain prognosis—yet the incidence of suicide among those with a terminal illness is much more weighted towards those who have just received a diagnosis. These, of course, are not the same group of people; there may well be overlap, but they are definitively not the same.

Evidence on the gov.uk website suggests that “over half of men aged 40 to 54 who died by suicide had a physical health condition.”

We know that having a physical health condition or any kind of terminal illness has an impact, and that evidence demonstrates the impact that poor physical health has on mental wellbeing. We know that thereDr Louis Appleby, a psychiatrist who leads the national suicide prevention strategy for England and directs the national confidential inquiry into suicide, has expressed concerns that the Bill fundamentally undermines the basis of the suicide prevention strategy. Identifying and diagnosing capacity and mental disorders are easy to put down in writing, but in practice it is much harder for professionals to make a correct judgment straightaway. Where we do not want someone to die, we intervene by offering mental health support, crisis services and what we hope is a comprehensive suicide prevention strategy, but for those who qualify under this Bill, instead of that suite of support, we allow them to progress straight into discussion to end their life.

It is really important that we have had a debate today about how the discussion should be initiated and the appropriate way to do that, but what is important about amendment 270 is that it takes into account the specific factor of suicidal ideation. It would mean that whatever the outcome of the decision about how the conversation should be initiated, the possibility that the person wishes to commit suicide is nevertheless taken into account.

The hon. Lady has just made a very important point. Does she agree that there will be profound awkwardness for a medic? In a hospital, when somebody says they want to die, they are at the moment referred to the mental health team—basically to be put on suicide watch—but under the Bill, without this provision, the obligation would be to say, “Well, maybe that’s the right thing to do,” and refer them to the assisted suicide team. What is being proposed through this amendment, as I understand it, is more or less to do both.

That is absolutely right. I think it becomes quite challenging for medical professionals when they are presented with a patient who expresses a wish to die: is this a suicidal intent or is it a clear, settled and informed wish to end their life under the provisions of the Bill? That is why it is really, really important that the possibility of suicidal intent is ruled out, as set out in amendment 270, which I support.

I will be really brief because many of my points have been made. Amendments 278, 8 and 124 are about doctor initiated discussion. One of the really good things about the Bill, for medical practitioners and for patients, is that this law will clarify the situation. It is really important for doctors to know exactly where they stand. As mentioned by the hon. Member for Solihull West and Shirley, if we introduced the types of gagging order set out in these amendments, we would introduce a horrible blurring; doctors could be accused of bringing it up by relatives who do not want it to be done, and it creates a horrible morass in the law. I feel that it is not right to have a gag clause. The reason that it has been removed elsewhere is that it does not work; it does not protect patients and it does not protect doctors. We have to think of it in that way.

There are many ways in which patients can ask about all the options available, and we have to be able to say what they are. We cannot miss out one option because we are not allowed to say it. That is a very unhealthy doctor patient relationship. If we want to foul up the doctor patient relationship, this is a good way of doing it.

What we have been talking about this afternoon does not necessarily affect the reality of what the vast majority of conversations are like. There are some people who show up, get a terminal diagnosis and are told they are going to die within a matter of weeks, and they need an approach. But the vast majority of people will have been having treatment over a series of weeks and months, and reached a point at which their death becomes inevitable. At that point, they often do—certainly in my family experience—express a desire to know how they can control their own death. Surely a doctor has to be allowed to evolve that conversation over the period of treatment.

I completely agree. Interestingly, I am on a journey here. To begin with, I thought these were good amendments. I thought that we must not introduce certain things—the doctor being a powerful person and so on. I then asked a lot of my colleagues, and they said, “No, no—we’ve got to clarify the law. We do not want this blurring of the law.” I have actually moved in the other direction, and I think it is essential that we do not bring in these amendments. As my hon. Friends said, the BMA has support the subject being raised and there have been changes to the law in Victoria because the gag clause simply does not work. We need to protect patients and, in my opinion, these amendments are not a good way of doing that. The hon. Member for Solihull West and Shirley made such a compelling argument against those amendments, so I will not go on about them.

On Amendment 278, I actually agree with the Member for East Wiltshire, but probably for different reasons. Again, if we introduce the amendment, if the doctor does not see that a patient has said that they do not want assisted dying and they bring it up, the Bill will potentially criminalise their behaviour. I feel that would not work and it would complicate the law.

I agree with amendments 319 and 320, tabled by my hon. Friend the Member for Bexleyheath and Crayford, which concern age. They would be a good and—alongside his amendment 339—functional change to the Bill.

Amendment 270 is about psychological assessment. As far as I can read in the Bill, as part of the panel process, which we have not yet discussed, there will be a psychological and psychiatric assessment of the patient. Also, when assessing someone with a terminal illness, most doctors will assess their mental health.

It is very important that we do have psychiatrists involved. In that sense, the addition of the panel may be welcome, although I regret that it is replacing the judicial stage—but, crucially, it comes right at the end of the process, and as I understand it, there will be no obligation on the panel to meet the patient. That is in no way a psychiatric assessment, let alone one at the right moment.

I would say that two doctors should be able to assess psychological health. That is their job; they would assess that at all times. I agree that it is a problem. The matter also relates to amendment 276. When someone is given a terminal diagnosis, that is shocking news—they will be depressed. However, the Bill is quite clear about the time intervals. With the panel also involved, there will be more than a month between the first time the patient sees a doctor and when they actually get a decision that they can end their life. I do think that that protects. I would support amendment 276, because it is important that people do not say, “Right—I would like my life to end now” and not to give due consideration, but due consideration is already written into the Bill.

Finally, I will address new clause 6, which is a probing amendment tabled by the hon. Member for Solihull West and Shirley. One danger in this Committee is that if we continuing to build and embroider the Bill, it will be very difficult to use. I do agree that someone has to have capacity at the time they take the medicine that will end their life, but I see where the probing amendment is coming from. We need to be careful that this remains a practical and workable Bill by the end of our deliberations.

Ordered, That the debate be now adjourned.—(Bambos Charalambous.)

Adjourned till Tuesday 4 March at twenty five minutes past Nine o’clock.

Written evidence reported to the House

TIAB 406 Pro Life Nurses UK

TIAB 407 Association of Palliative Medicine of Great Britain and Ireland (APM) (further written evidence)