Scottish legislative consent correspondence published, Northern Ireland legislative consent sought, Welsh legislative consent granted. Relevant documents: 32nd, 36th and 49th Reports from the Delegated Powers Committee, 12th Report from the Constitution Committee, Report from the Terminally Ill Adults (End of Life) Bill Committee.
My Lords, the noble Baroness, Lady Campbell of Surbiton, will take part remotely. I remind the Committee that, unless they are leading a group, remote speakers speak first after the mover of the lead amendment in the group and may therefore speak to other amendments in the group ahead of Members who have tabled them.
Clause 5: Preliminary discussions with registered medical practitioners
189: Clause 5, page 3, line 30, leave out subsection (6) and insert—
“(6) The Secretary of State must by regulations—(a) establish a register of registered medical professionals who are willing and able to conduct preliminary discussions under subsection (3);(b) make provision for the process by which this register is updated and publicly available.(7) A registered medical practitioner may only conduct the preliminary discussion under subsection (3) if they are entered in the register.(8) Registered medical professionals who are unwilling or unable to conduct preliminary discussion are not required to join the register under subsection (6).(9) A registered medical practitioner who is unwilling or unable to conduct the preliminary discussion mentioned under subsection (3) must refer the person to the register of medical professionals.”
My Lords, this group of amendments seeks to establish an opt-in model for healthcare professionals, as explicitly requested by the various royal colleges, including the Royal College of General Practitioners, the Royal College of Psychiatrists, the Royal Pharmaceutical Society and the Royal College of Nursing. They seek to protect doctors and all other healthcare professionals, not just with a vague formal right to opt out but with a framework in which their rights are clear.
My Amendment 189—supported by the noble Lord, Lord Carlile, and the noble Baroness, Lady O’Loan, to whom I give many thanks—seeks to strengthen transparency in relation to medical practitioners involved in delivering an assisted dying service by setting up a publicly available register of medical professionals who are willing and able to conduct preliminary discussions. While its sponsors have confirmed that the Bill is based on an opt-in system, it is imperative that this opt-in is explicitly referred to in the Bill, to ensure that participation is a positive choice and to avoid it being presumed or open to pressure that all professionals would participate unless they opted out.
Clause 5(6) says that if a doctor is unable or unwilling to participate,
“they must ensure the person is directed to where they can obtain information and have the preliminary discussion”.
But where should that be? Would not a publicly available register be the perfect solution for the patient to seek out a medical professional on the register at their convenience?
The noble and learned Lord’s Amendments 422 and 423 leave it to the Secretary of State to make provisions through regulation at some later date. Amendment 669A covers only co-ordinating and independent doctors and adds an opt-in option only for providing or participating in training. This is not good enough. I am sure the noble and learned Lord will also refer to this matter in his reply to amendments on Clause 31, which I appreciate was expanded in the other place on Report. However, serious gaps remain. Schedule 3 may indeed provide for protection against detriment by incorporating existing employment rights, but this does not resolve the issue because it leaves individuals to resort to the tribunal system, a system that is already crowded and where the remedy is damages, not rehiring, thereby potentially forcing individuals to choose between their conscience and their career.
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The Bill is ambiguous about how far conscience protections extend. Amendment 673 in my name would protect the right of anyone involved in the care of someone who might want assisted dying to opt out of supporting that person to die. We know that, in practice, a much wider remit of health and care team members will be affected by supporting someone in an assisted death, not just the lead clinicians. The noble Baroness, Lady Watkins, reminded us last week of the multidisciplinary nature of support for terminally ill people. Care workers, in particular, are ignored in this Bill. Those workers, whether registered or unregistered, should be able to refuse to participate if they wish to conscientiously object, without penalty, and they should be afforded the same protections as lead clinicians.
Those of us who were following the debate in the Scottish Parliament last week will know that one of the reasons MSPs changed their minds was exactly the lack of clarity of the protections for conscientious objectors. Their ability to refuse to participate in assisted dying was not clear and that Bill has now fallen. Can the noble and learned Lord confirm his response to the royal colleges’ call for an opt-in system to be adopted, and how can he guarantee that no one will face legal or professional repercussions, including indirect ones, for refusing to participate in assisted dying? I beg to move.
My Lords, I have added my name to my noble friend Lady Finlay’s Amendment 190, and support Amendments 268, 359, 383, 617 and 657 in this group. This basket of amendments, as the noble Baroness, Lady Fraser, has said, seeks to ensure that no doctor or associated healthcare professional is under any pressure to participate in the process of assisted dying unless actively opting in to the process.
Amendment 190 provides an important safeguard against pressure on doctors by making it clear that the obligation to refer a patient to relevant information and another doctor applies only when the patient has specifically requested a preliminary discussion on assisted dying. It also ensures that doctors who do not wish to be involved are not required to take part beyond that point.
Last summer, I spent six weeks in St Thomas’ critical care after an accident at sea in the Bay of Biscay. I came home broken, bruised and in terrible pain, but my salvation was the compassionate, dedicated team of health professionals whose combined efforts brought me back to life and back to this Chamber. This was what they were born to do. As ever, I took the opportunity to ask each person who came to my bedside what they thought of the Bill and whether they would participate in its application should it become law. Hand on heart, not one doctor, nurse or allied professional said yes. What they did say was, “It’s not what I trained for years to do. My job satisfaction is making patients as comfortable as possible and supporting life however long or short”. I must admit that it made me feel a great deal better, and, yes, safer, knowing they would go the extra mile to help me while in their care.
A number of the royal colleges have raised concerns about the pressures on healthcare professionals to clear hospital beds and meet treatment targets. This, in turn, may pressurise them to participate in the assisted dying process—a subtle yet deadly form of unconscious coercion, causing division within medical teams and undermining patient trust. This was clearly illustrated in the sobering BBC documentary “Better Off Dead?” last year.
My Lords, I have Amendments 190, 268, 359, 617 and 660 in this group. The crux of this group is that assisting suicide is not a medical treatment, and products to bring about the death are being used not as medications but in massive overdoses for their poisonous properties.
The Human Medicines Regulations 2012 define a medicinal product as
“any substance or combination of substances presented as having properties of preventing or treating disease in human beings; or … that may be used by or administered to human beings with a view to … restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action, or … making a medical diagnosis”.
After considering what is a medicine, let us consider treatment. My noble friend Lady Campbell described excellent care and complex care very well. The Health and Social Care Act 2012 states that the comprehensive health service is
“designed to secure improvement … in the physical and mental health of the people of England, and … in the prevention, diagnosis and treatment of physical and mental illness”.
This is then embodied for patients in the NHS constitution.
In debates to date, proponents have focused on assisted dying as an existential choice, not a treatment. Canada considers it a treatment, and the problems—as my noble friend Lady Campbell explained—have emerged over time. But in Switzerland and Germany, it is fundamentally not a healthcare matter. It is important to remember that outside life, there is no health.
What of the role of doctors? The main conscience clause, now Clause 31, was expanded on Report in the other place to include explicit carve-outs to protect any person from a
“duty to participate in the provision of assistance in accordance with this Act”.
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This leads to another difficulty: the logistic workability of an opt-out system. The Bill’s impact assessment, working on the assumption of an opt-out, notes:
“There is a high degree of uncertainty around the level of opt out in England and Wales”.
Surveys conducted by royal colleges and professional bodies suggest that this could range from 35% to 76% for specific groups of staff. Consideration would need to be given to the impact of a high level of opt-out on the workability of a national service model.
There are defects in the conscience provisions as written, despite the amendment from the noble and learned Lord, Lord Falconer. I suggest that in any rewrite of the Bill, an opt-in must be absolutely explicit, as required by the professional bodies. I ask the noble and learned Lord to explain why his amendment has come so late in the day, despite the fact that the evidence from the royal colleges was there from the beginning.
My Lords, I speak as a signatory of Amendment 189 in the name of the noble Baroness, Lady Fraser. I am strongly in favour of it for reasons that I will explain briefly.
I am not a doctor, but I am a patient when I cannot avoid it. Let us take, for example, a situation that many of your Lordships either have faced or will face when their eyesight begins to deteriorate. You go to the optician, who says, “I’ve examined your eyes: you’ve got the beginnings of a cataract. You can choose between either continuing with your spectacles as they are now or having a cataract operation, which might even mean that you don’t have to wear spectacles ever again”. In order to decide which choice to make, you are sent to a specialist.
Since 1 January 1997, there has been a GMC specialist register, which covers all sorts of specialties, including some that do not have the high formality of gynaecology, obstetrics or orthopaedics. It works very well. It is publicly accessible. It is just the sort of register that the noble Baroness is referring to, although there would be a specific one for this.
When you face the choice of having fewer than six months to live or dying by assisted dying, and you want to make your decision, you want to go to someone who has exactly the same sort of disciplinary approach as that eye specialist who would be advising you on your incipient cataract. That is a specialism. I cannot understand why there should be any other approach to this than having a specialist register so that advice is given to you clearly by a specialist—not any old general practitioner, if I can be forgiven for using that phrase.
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We know that not all medical practitioners will want to participate in assisted dying. Some 45% of doctors in the BMA’s 2020 study indicated they would not be willing to participate, with a further 19% undecided. It is my belief that a clear and public register of those professionals who wish to participate would enhance transparency and enable everyone to know where they stood. Amendment 189 would require the Secretary of State to set up such a register, ensure there is a process to keep it updated and make it publicly available. A medical practitioner could conduct preliminary discussions only if they were entered in the register.
Concerns have been expressed that assisted dying will for ever change the doctor-patient relationship. Vulnerable patients would not be able to trust that clinicians had their best interests at heart. Such concerns illustrate the importance of ascertaining whether assisted dying is to be considered a treatment, which Amendments 383 and 657, in the names of the noble Baronesses, Lady Cass and Lady Fox, respectively, explore. However, with Amendment 189, patients would know whether their GP was a willing participant, whether or not they wished to avail themselves of assisted dying and, presumably, they could choose or not choose to register with such a practice. Patients would also know if their consultant or other medical professional had opted in, thus providing a context for, say, discussions around future options. The amendment would also protect clinicians, who could point to the register if they wished to have nothing to do with assisted dying.
The BMA has advised that it is against the reintroduction of a requirement on doctors to refer patients, which would undo a change from “refer” to “direct” made in the other place, but I understand that not all royal colleges are at one on this point. I take the point that proposed subsection (9) in my amendment reads that a professional who is
“unwilling or unable to conduct the preliminary discussion … must refer the person to the register of medical professionals”,
and I know that the BMA attached a specific meaning to “refer”. As I am sure the Minister will tell me in her reply, my amendment has not had the advantage of technical support in its drafting. Frankly, if the BMA would prefer “direct”, I would be perfectly happy with that. But even if we removed subsection (9) in my amendment, the point remains, which is to set up a publicly available register for those who want to opt in. Such a register also has the advantage of being able to be tracked. We could review whether certain areas of the country were being better or worse served. We could monitor the practice of doctors on the register to track concerns of doctor shopping. We could analyse which professionals or specialisms are or are not participating in assisted dying. All this would assist with the regulation of assisted dying.
Throughout our exchanges in this Committee, I have heard the term “treatment option” to describe assisted dying. It is not a treatment option. Assisted dying as a treatment does not accord with the fundamental principles of medical practice. Medical treatment is to alleviate symptoms and support life, however short, in the least distressing way possible. To do otherwise would fundamentally alter the nature of medical practice, shifting the focus from supporting life to suggesting its end, leaving patients feeling pressurised or fearful when seeking care.
Amendments 383 and 657 in this group address this issue. The evidence is clear that without these amendments, we are in danger of travelling the same road as the Canadian legislation, a law that began as tightly drafted legislation but soon gave way to systemic pressures on healthcare professionals, many of whom now see assisted dying as part of the end-of-life treatment. We must not allow the introduction of assisted dying to disrupt the fundamental principles of healthcare.
The opt-in system proposed by my noble friend Lady Finlay and others in this group is not about protecting the rights of healthcare professionals; it is about preserving the very essence of patient care. The amendments from the noble and learned Lord, Lord Falconer, fall short of addressing these concerns. By limiting the statutory opt-in solely to the bespoke training for co-ordinating doctors and independent doctors, he leaves significant gaps in protection for the wider medical workforce. They are seen as too narrow and procedural to meet the fundamental concerns raised by the Royal College of General Practitioners and the Royal College of Psychiatrists.
I urge your Lordships to support the amendments I refer to and to stand with the royal colleges in their call for a clear opt-in system that respects the rights and dignity of all healthcare professionals, providing them with a safe, ethical healthcare environment and protecting the integrity of their relationship with patients.
But I ask the noble and learned Lord, Lord Falconer: how is this assistance defined, and what are its boundaries? Is it the assessment process for eligibility for lethal drugs, or is it only the provision of lethal drugs? Is it only actually helping the person to ingest the drugs or setting up a delivery device for the lethal substances? Those boundaries are really important.
Clause 5(6) originally required doctors unwilling to conduct the preliminary discussion to refer a patient to another doctor who could conduct the discussion. After objections from the medical organisations, this was changed to a duty to direct the person where they could find information, although the Royal College of Psychiatrists has said that this may fail to adequately respect conscience.
However, Clause 5 still does not meet the requirement of expert medical bodies that request an opt-in system. Amendment 268 states that the “coordinating doctor”, Amendment 359 states that the “independent doctor” and Amendment 617 states that a substitute doctor must all have explicitly opted in for these roles. Currently, freshly qualified medical graduates could act as co-ordinating doctors. Under my amendments, no one could be a co-ordinating doctor unless they had explicitly met training and competency requirements to be on a new, separate GMC register, eligibility for which would require specialist training, as has already been so well explained in the introduction of this group.
As has been said, the BMA and the Royal College of GPs both specifically requested an opt-in system. The BMA requires an opt-in model for doctors who positively opt in to provide assisted suicide to be able to choose which parts of the service they are willing to provide.
Yesterday I had confirmation from the Royal College of General Practitioners that it strongly supports my Amendments 268, 359 and 617. It said:
“The College believes that any assisted dying provision must be separately funded and delivered through a distinct pathway”,
and that the college
“would support explicit clarification on the face of the Bill to make clear that there is no expectation on any doctor (including GPs) to participate and it is only those who positively choose to do so (via an opt-in) who would have the training and participate”.
I note that the amendment in the name of the noble and learned Lord, Lord Falconer of Thoroton, would make training the opt-in, but it would not deal with institutional expectations. If you cannot be legally compelled to take the training, I am not certain how you could still be involved in the discussions or assessments. It is not clear that the amendment would mean that you should be on the specialist register, as explained.
The only way to protect clinicians from detriment is by opt-in. Evidence to the other place from Canada suggests that physicians find it very hard to opt out, despite a right to, describing how assisted dying
“has completely changed the practice of medicine in Canada … doctors are expected to facilitate access to death, if not willing to provide”
it
“themselves, even when a doctor knows reasonable options for care have not been provided”.
The physicians went on to voice their concerns. That is all in the written evidence. I have heard from Australian doctors who have been intimidated, even driven out of their job, for refusing involvement.
Pressure does not come only in the professions, though. A recent study of Dutch GPs reported that the majority of Dutch physicians feel pressured when dealing with a request for euthanasia or physician-assisted suicide—particularly emotional blackmail, control and direction by others, doubts about fulfilling the criteria, counterpressure by patients’ relatives, time pressure around referred patients and organisational pressures.
That creation of an expectation and culture of assisted death is why medical experts want a clear opt-in system. An opt-in would allow the NHS’s work to continue unhindered and ensure that patients seeking assisted suicide are seen by doctors who are fully trained in the process. The BMA survey already referred to revealed that 6% of members of the Association for Palliative Medicine would be prepared to administer lethal drugs, but without an opt-in there would be the risk of an organisational exodus of staff. Dr Sarah Cox of the Association for Palliative Medicine told the other place in oral evidence that 43% of palliative medicine professionals say that they would leave if assisted dying were made part of the organisation in which they work.