Rebecca Paul MP: speeches

Speeches

• 5 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Nineteeth sitting) · Hansard source

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  I want to raise a question on photo ID. My apologies, I probably should have spoken sooner. Thinking this through as we have debated, I think photographic ID is important to avoid mistaken identity and fraud, and to make sure everything works as it should. With respect to this process, would the Minister normally expect photographic ID to be an acceptable or appropriate form of identification?

• 5 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Nineteeth sitting) · Hansard source

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  Thank you, Mrs Harris. I rise to speak in support of amendment 257 and the associated amendments in this group, tabled by my hon. Friend the Member for West Worcestershire. They require that the request for assisted dying will not go ahead if there is a real risk that the eligibility criteria are not met. In reality, I would much prefer that the many amendments proposed to clause 1, to broaden coercion and pressure safeguards, to clause 2, to tighten the definition of terminal illness, and to clause 3, to raise the bar for capacity assessments, had been incorporated. In my view, that would have been the best way to improve the safeguards in the Bill. But we are where we are, so I am supporting this amendment, which puts in place an additional safeguard at the point when the doctor has performed the first assessment and is about to make the statement. If this Bill passes, we will be asking doctors to take a truly momentous decision: is the person standing in front of them, or whose documents they are reading through, going to be approved for an assisted death? The decision is momentous for them and even more for the applicant themselves, so it should be made on the firmest foundation possible. What is that foundation? The Bill sets out a number of criteria, which we have discussed in detail over the last few weeks, but it does not explain how sure the assessors need to be about some of them. There is no clear, consistent evidential standard, and many of the areas considered come down to estimation at the end of the day. A series of boxes, essentially, must be ticked by a trusted professional to determine whether someone is eligible for an assisted death. Under the Bill currently, the schedules specify that the doctors must be satisfied that the patient has a clear, settled and informed wish to end their own life and has made the first declaration voluntarily and that, to the best of their knowledge, the patient has not been coerced or pressured. I note that amendments have been tabled to remove the schedules; if those are agreed to, that could have an impact on some of what I am saying. Let us look at how easy it is for the component decisions, which appear innocuous in isolation, to add up to something monumental. A patient has been diagnosed with a terminal cancer that will undoubtedly end their life at some point. It is notoriously difficult to say, at this point, whether they have 18 months or just six months left to live. The margin of error can be significant, as we have heard previously in oral and written evidence. However, in this case, the doctor decides that six months is appropriate. The first checkbox is ticked. When assessed for capacity, the patient is confused and inconsistent, anxious and depressed. However, there is no diagnosed disturbance or disorder of the mind or brain, so on the balance of probabilities—the “51% sure” test—the doctor, although he or she has reservations, has to assess the patient as capacious. Sadly, that is undoubtedly the correct approach under clause 3 currently. A second checkbox is ticked. The doctor needs to form a view as to whether the patient has a clear, settled and informed wish to end their own life. Without mind reading abilities, that is a difficult thing for a doctor to opine on—they will rely heavily on what the patient says, as that is all they can really go on. The patient is saying all the right things to reassure the doctor on this front. The doctor might have a niggle about something, but again, they have enough to check the box and to meet the threshold: to the best of their knowledge. Finally, there is an even more difficult check. In the doctor’s opinion, has the patient been coerced or pressured? Again, the doctor does not necessarily know the patient very well or have a good understanding of the circumstances, and they are really busy, but they have not seen any overt signs of coercion. Everyone around the patient seems so lovely, so to the best of the doctor’s knowledge they should be comfortable and the checkbox gets ticked. At the end of this process, in which each criterion has been individually considered, the patient is clearly eligible. All the boxes are ticked.

• 5 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Nineteeth sitting) · Hansard source

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  This is a complex issue, and that is why I welcome the debate on this group. There are lots of things that need to be thought through to make sure that, if assisted dying is legalised, we manage it in the most effective way for patients.

• 5 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Nineteeth sitting) · Hansard source

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  rose—

• 5 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Nineteeth sitting) · Hansard source

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  I think most points have been covered, so I will be brief. The point of the amendment 296 is to recognise the challenges faced by medical practitioners in the NHS. It is really well intended. I suspect that there are different ways to do this, which we could discuss, but the amendment would recognise that medical practitioners will come under a lot of pressure. The very nature of the assisted dying process means there is pressure to move quickly—for obvious reasons. If someone is in pain and an assisted death is what they have chosen to do, they are going to want to move forward at pace. It cannot be as usual, with however long it can take in the NHS—often for a normal procedure. The point of the amendment is simply to be cognisant of the fact that other patients, too, require healthcare. This comes back to the debate we have had many times about what is healthcare and what is not. It is one of the issues that comes up when we have assisted dying amalgamated with general healthcare in the NHS. We are hearing concerns from doctors on the frontline. In written evidence, eight doctors, six of them GPs, say that the NHS lacks both the time and the capacity to create the new role of co-ordinating doctor with its grave responsibilities. The statistics bear out their concerns. In a 2024 survey by the Royal College of General Practitioners, over 40% of UK GPs who responded said that they were “unlikely” to be practising still in five years’ time; 40% feel stressed to the point of “not coping” at least once a week; and 79% are concerned about having fewer GPs at their practice and its impact on the quality of care that their practice can deliver. The reality of the matter is that we have to recognise that the introduction of assisted dying places another pressure on our health system, and to try to address that head on.

• 5 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Nineteeth sitting) · Hansard source

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  Different situations will give a different result. It is a complex situation. We could have a patient who, if they did not have an assisted death, would be on a palliative care pathway, which might not involve as much time from their GP—the assessing doctor, in that instance. If they moved on to the assisted dying pathway, however, the assessment process would need to start, and it has to happen quickly for all the reasons that I have set out. The Bill relies on doctors being highly conscientious and hard-working, but it also risks taking them for granted if it makes no allowance for the present realities that they face in our healthcare system. This amendment tries to reflect and recognise that. In November, the hon. Member for Stroud said, “I have watched with horror as our NHS has gone from being the best health service in the world…to being a service on its knees.” —[ Official Report , 6 November 2024; Vol. 756, c. 358.] If the NHS is to get off its knees, surely we cannot afford for assisted suicide to jeopardise the care of patients who already struggle to get an appointment. We must recognise that there are people out there who cannot get an appointment to see their GP, and reflect that in the Bill.

• 5 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Nineteeth sitting) · Hansard source

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  Obviously, I am speaking to the Bill as is. I do not want to presume the result of any vote. I assume none of us here knows how a vote may go. All boxes checked, yet it is entirely possible that the margin of error could add up to the point where a doctor, when standing back and looking holistically at the situation, might feel there is sufficient risk to warrant not signing off. It is that niggle again—sometimes the sum of the parts is not the right answer. That is what amendment 257 seeks to do: to allow that the doctor that element of override discretion where there is a real risk that any of the eligibility requirements are not met. My understanding is that the “real risk” test is taken from the jurisprudence of the European Court of Human Rights. That Court has held that states are under a duty to protect an individual from suicide if they are aware of a real and immediate risk of suicide. Doctors are already required under the Human Rights Act to assess of when there is a real risk of suicide, so it is a familiar legal test, I believe. Ensuring that it applies to the eligibility criteria, in particular those dealing with autonomy and voluntariness, may strengthen the Bill, make it safer and help ensure compliance. I will welcome the Minister’s views, however, on whether the test is the right one legally given the spirit of what the amendment seeks to do. I appreciate that this is a technical legal point, and I am not a lawyer. I am also open to the argument that “real risk” might not be the appropriate test for every one of the eligibility criteria, so again a view from the Minister would be helpful. If the Government and the promoter of the Bill accept that this test should apply to the issues of capacity, clear and settled will, voluntariness, and absence of coercion or pressure, I will be happy for the Government to table a tidying amendment on Report to limit the test to those matters. My intention is to press the amendment to a vote and I hope that the Committee will join me in supporting it.

• 4 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Seventeenth sitting) · Hansard source

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  I rise to speak in support of amendment 341 in the name of my hon. Friend the Member for Sleaford and North Hykeham. It would provide that a registered medical practitioner who is unable or unwilling to have the preliminary discussion must provide information to the patient about where they can have that discussion, but that need not take the form of a referral. One of the messages that we heard loud and clear in the evidence sessions was that medical practitioners do not wish to be put under an obligation to refer a patient to another registered medical practitioner by the Bill. “Referral” has a very specific meaning in medicine, and it is that word and the corresponding action required of it that many doctors have an issue with. A referral puts a patient on a pathway, whereas the provision of information merely indicates where such a pathway can be found. During oral evidence, Dr Green said: “The word ‘referral’, to a doctor, means writing a letter or communicating with another doctor to see, but some doctors would find themselves not able to do that. For that reason, we believe that there should be an information service for the doctor to direct to.” –– [ Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 48, Q41.] We are well aware that assisted dying is a complex issue and a matter of conscience for many. It is therefore important that we respect the personal views of medical practitioners. One of the points that I have made several times in these proceedings is that assisted dying affects not just the patient but other people participating and supporting. Some medical practitioners will be comfortable with it, but many others will not. It is therefore vital that we recognise their rights and needs, not just the patients’, when formulating this law. If for whatever reason a doctor does not want to refer a patient, they should not have to. Their legal responsibility should be limited to directing the patient to where they can find the relevant information that they need. Doctors should have no further obligation.

• 4 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Seventeenth sitting) · Hansard source

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  I thank the hon. Lady for that intervention, which I welcome.

• 4 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Seventeenth sitting) · Hansard source

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  I very much appreciate the opportunity, Mr Dowd. I will attempt to be brief. First, I welcome the acceptance of amendment 414, in the name of the hon. Member for Ipswich; of amendment 108, in the name of the hon. Member for East Thanet; of amendment 275, in the name of the hon. Member for Sunderland Central; and of amendment 341, in the name of my hon. Friend the Member for Sleaford and North Hykeham. The amendments strengthen the clause, so I thank Committee members for accepting them. I have one pertinent point to put on the record about clause 4. The clause deals with what is and is not included in the initial discussion with registered medical practitioners, so the definition of assisted dying, as well as what it actually is, becomes relevant to understanding what guidance does and does not come into play. During these proceedings, there has been a tendency to speak as if assisted dying were another type of treatment or healthcare option being offered by medical practitioners, rather than a completely different and separate offering. It has been said many times that assisted dying should be treated in the same way as any other treatment and that the existing guidance from the GMC sets out appropriate best practice and should applicable and relied on. I have some concerns about that, which I wish to put on the record. The legal norm, and GMC guidance, is that patients should be offered all reasonable medical treatments. A medical treatment can be defined as something that combats disease or disorder. It is fundamentally about healing, relief of symptoms, recovery and cure, so straightaway we have a conflict. Assisted dying ends the life of a person; it is not a treatment in the normal sense of the word. It is important that it is not a treatment, so that doctors are not obliged to offer it in the same way that they would offer another, more normal, medical treatment. The Association for Palliative Medicine’s written evidence covers the point: “A crucial question is whether or not assisted death by lethal medication is considered to be a medical treatment. Given that doctors are required to assess eligibility for, prescribe, and be present at the administration of the medication, AD might be considered to be a ‘medical treatment’. If this is the case then either assisted dying should be offered to all people meeting the eligibility criteria, or doctors need to behave differently towards this medical treatment than to all other treatments. Both of these approaches are contrary to all prior medical practice and public expectation, and laden with risks of unintended consequences. The APM recommends that if AD is implemented in England & Wales it is done outside of ‘usual medical practice’ and is not regarded as medical treatment.” This is because there are detrimental consequences from classifying assisted dying as treatment and relying on guidance. First, it could undermine the doctor-patient relationship by confusing the distinction between healing and ending life. Patients who are used to looking to their caregivers for help may worry that they will instead be put on a pathway to an assisted death. That could deter them from seeking medical help when they need it. Dr Jamilla Hussain spoke powerfully on that point, so I will not repeat it. Secondly, the word “treatment” currently has largely positive connotations. If the word starts to be used for assisted dying, its meaning will change entirely. I wonder about the intersection with other pieces of guidance and law that refer to treatment, for example where treatment can legally be given without the consent of the patient. We all agree that assisted dying should never be administered without consent, but that is why we must be careful with our language and definitions. In certain situations, treatment can lawfully be given without consent, so it must follow that, to protect against the risk of unintended consequences, assisted dying is not deemed to be a treatment. I ask the Minister’s view on that risk—I note that there is no reference in the Bill to assisted dying being a treatment, which is really good news—and his advice on how best to ensure that assisted dying is not and will never be considered a treatment as a consequence of the Bill or of any other statute or guidance. I also ask his view on the appropriateness of relying so heavily on GMC guidance for best practice, as I imagine that that guidance could change at any point without the consent of Parliament.

• 4 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Seventeenth sitting) · Hansard source

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  I rise to speak briefly to amendments 413 and 414, which are very thoughtful and well-considered amendments. I thank the right hon. Member for Dwyfor Meirionnydd for setting out powerfully and persuasively the importance of the subject. I support the amendments, but in reality we probably need to go further by specifying exactly who would be interpreting and making sure that it is regulated reliably. We do not want just anyone coming in off the street and doing that. That would not be appropriate, so we need to think about whether we need to go further. However, the amendments are a great starting point and would move us closer to where we need to be. There is much subtlety in this debate. We talked a little in the first week of this Committee about the importance of language and the words that are used. We always need to be cognisant that when we are imparting information to people, particularly in a healthcare context, it is vital that we use language that people understand so that the ramifications of what is being discussed are clear. That is where these amendments become really important, because for those for whom English is not their first language, some of the subtlety and nuance around what a term means could be lost. Interpreters could be an important part of adding the clarity required to ensure that everyone going through the process understands exactly what it involves. A 2024 Nuffield Council on Bioethics survey found that 39% of people think that assisted dying means withdrawing life support, 19% think that it means providing people who are dying with drugs that relieve symptoms of pain or suffering, and 13% think that it means providing hospice care. That echoes our debate a couple of weeks ago about how assisted dying can be interpreted in quite a few different ways. It is really important that we are clear in the language we use and what we mean by it. We also find that among ethnic minorities there is sometimes a greater misunderstanding about palliative care. A 2024 King’s College London survey found that 6% of people believe that it is accurate that palliative care involves giving people medicines in order to shorten their life, but 18% of ethnic minority groups think that. We need to be cognisant of that. While 18% of people trust healthcare providers “not very much” or “not at all” to provide high-quality care towards the end of life, that figure increases to 30% for ethnic minority groups. While 6% of people say they have not heard of palliative care, that increases to 22% of people in ethnic minority groups. It is important to recognise that the text of the amendment is much less stringent than that of section 7 of South Australia’s Voluntary Assisted Dying Act 2021, which strictly regulates interpreters. That goes back to my initial point. Under the South Australian law, they must be “accredited by a prescribed body”. They cannot be a family member, cannot stand to benefit from the will and cannot be involved in the patient’s healthcare. It is really important to ensure that a recognised professional is involved in this most important of processes and information sharing. I support the amendments, although I think they need to go a little further. I look forward to hearing what other hon. Members have to say.

• 4 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Sixteenth sitting) · Hansard source

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  I appreciate the opportunity to speak briefly, Mr Efford. Many other speakers have already made excellent points in support of the amendments, so I will not repeat them, but I would like to put on record one pertinent point. During these proceedings, there has been a tendency by some to speak as though assisted dying were another type of treatment or healthcare option being offered by medical practitioners, rather than a completely different and separate offering. I have grave concerns about that. The legal norm, and GMC guidance, is that patients should be offered all reasonable medical treatments. A medical treatment can be defined as something that combats disease or disorder. It is fundamentally about healing, relief of symptoms, recovery and cure. Straightaway, we have a conflict. Assisted dying ends the life of a person. It is not a treatment in the normal sense—

• 4 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Sixteenth sitting) · Hansard source

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  Okay. I will just put it on the record that whether or not something is a medical treatment is vital. It is possible to give medical treatments without consent, so we need to have that debate.

• 4 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Sixteenth sitting) · Hansard source

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  I can wait until the stand part debate.

• 4 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Sixteenth sitting) · Hansard source

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  We are talking about what a medical practitioner can and cannot say. During the debate, there was a lot of talk about whether it was a medical treatment or not. If so, guidance indicates how it should be treated, so whether it is a medical treatment or not is relevant and pertinent to the clause. I have an important point that I would like to put on the record; I am happy to raise it at a different point, but I honestly believe that clause 4 is the right place.

• 4 Mar 2025 · Terminally Ill Adults (End of Life) Bill (Sixteenth sitting) · Hansard source

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  I am. It is relevant, because we are talking—

• 26 Feb 2025 · Terminally Ill Adults (End of Life) Bill (Fifteenth sitting) · Hansard source

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  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?

• 26 Feb 2025 · Terminally Ill Adults (End of Life) Bill (Fifteenth sitting) · Hansard source

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

• 26 Feb 2025 · Terminally Ill Adults (End of Life) Bill (Fifteenth sitting) · Hansard source

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  I am so sorry, Mrs Harris.

• 26 Feb 2025 · Terminally Ill Adults (End of Life) Bill (Fifteenth sitting) · Hansard source

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  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.

• 26 Feb 2025 · Terminally Ill Adults (End of Life) Bill (Fifteenth sitting) · Hansard source

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  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?

• 26 Feb 2025 · Terminally Ill Adults (End of Life) Bill (Fourteenth sitting) · Hansard source

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  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.

• 25 Feb 2025 · Terminally Ill Adults (End of Life) Bill (Twelfth sitting) · Hansard source

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  I appreciate your giving way. The point that we are trying to make is that it is important to provide the information about palliative care. I understand the reservations of the hon. Member for Stroud about forcing someone to see a palliative specialist, but wording can be tweaked or changed to allow that choice. The key thing is that the opportunity to meet a palliative care specialist is provided so that the patient has the option, if they so wish, to seek that information. At the end of the day, I think we can all agree that information allows people to make the right decision for themselves. Rather than getting too hung up on the exact wording of the amendment, I suggest that—this applies to quite a lot of the amendments—we think about the spirit of what we are trying to do.

• 25 Feb 2025 · Terminally Ill Adults (End of Life) Bill (Twelfth sitting) · Hansard source

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  I thank the hon. Lady for raising that point. I think that what has been looked at is the number of unassisted suicides. The hon. Lady makes the good point that obviously we need to look at all the different factors that could be part of that, but I am just making the point that when we look at territories that have introduced assisted dying, we find that at the point at which it is introduced, we generally see, in most territories, an increase in unassisted suicide. I do not think that we should rush to disregard that. We need to recognise that in helping a small group of people at the end of their life, which undoubtedly this Bill will do, there will be a price to be paid. That price will be paid by our young people and other vulnerable groups. I will not vote in favour of clause 1—I do not think that there will be a Division on it anyway—but I will not oppose it either, for the reasons that my hon. Friend the Member for East Wiltshire set out. I understand that it is the key clause in order for us to progress and continue the debate, which is what Parliament wishes us to do, but I hope that the Committee will be more receptive to improving the safeguards as we progress through the Bill. The amendments really were tabled in good faith. We did our best to write them in a clear way, but obviously the private Member’s Bill process makes that more difficult. This is not a Government Bill, but we are all doing the best we can to table amendments that would improve the safety of the Bill.

• 25 Feb 2025 · Terminally Ill Adults (End of Life) Bill (Twelfth sitting) · Hansard source

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  Will the hon. Lady give way?