Scottish legislative consent correspondence published. Northern Ireland and Welsh legislative consent sought. Relevant documents: 32nd and 36th Reports from the Delegated Powers Committee, 12th Report from the Constitution Committee, Report from the Terminally Ill Adults (End of Life) Bill Committee.

Clause 2: Terminal Illness

Debate on Amendment 71 resumed.

My Lords, I believe that there may be some people who wish to speak before I come to my final remarks. I certainly want to hear from the Front Benches and the sponsor of the Bill. I will therefore withhold any remarks at the moment.

My Lords, I have added my name to Amendments 102 and 106 in this group. Clause 2 is of the utmost importance because the definition of “terminal illness” underpins everything in the Bill. Without a terminal illness, the Bill does not apply and there is no ability to seek assistance in suicide, so the definition is enormously important. Clarity is absolutely necessary and would be enhanced if a list of terminal illnesses were required to be published before the clause on the voluntary assisted dying commissioner could come into effect, as Amendments 85, 894 and 896 would require. Some conditions need to be excluded, such as being elderly, as in Amendment 99. Amendment 102 seeks to ensure that dementia is recognised as a disability and not in itself a terminal illness.

Amendment 105 would exclude anyone with a congenital, genetic or lifelong condition, for which treatments are improving rapidly. Life expectancy has increased dramatically in conditions such as cystic fibrosis, COPD, Parkinson’s and Duchenne muscular dystrophy. Pathfinders Neuromuscular Alliance says:

“Many individuals with progressive conditions, such as muscular dystrophy, live far beyond their initial life expectancy due to advances in medical care. Misjudgments in prognoses could lead to premature decisions, effectively ending lives that might have been enriched by appropriate care and support”.

This Bill does not provide protection for those with such conditions, who may be coerced into seeking an assisted death.

Amendment 106, in the name of the noble Lord, Lord Hunt, and the noble Baroness, Lady Grey-Thompson, to which I have added my name, would prevent assisted dying being offered where medical negligence, malpractice or omission has occurred and given rise to disability, impairment or a terminal condition until all investigations, compensation claims et cetera have been concluded. In many cases involving medical negligence, a failure to diagnose a condition which may have been treatable when the patient first presented is finally diagnosed as a cancer at stage 4 and has metastasised. This may happen, for example, when a young woman, sometimes even a child, has cancer of the cervix or uterus: some doctors do not think they could have such a problem, because they are too young. This will be profoundly difficult for the patients and their families, and it is vital that they do not lose benefits or part of the compensation they might have received by dying of assisted suicide, rather than a death which would have been recorded as having been caused by medical negligence. Those resources may be vital for a single parent with a young family. Does the noble and learned Lord accept the need for these amendments, or what is his alternative suggestion?

There are conditions which can be stabilised or controlled for years, and which, if not stabilised or controlled, may cause a doctor to predict death. Noble Lords have articulated the concerns that exist about the inadequacy and danger of this primary definition. Illnesses that can be stabilised, halted or effectively managed by treatment must be excluded, ensuring that only genuinely terminal illnesses are included in the definition.

The second part of the test relates to the six-month prognosis. We have heard at length about the difficulties of prognosis. The noble Lord, Lord Stevens, referred last week to the study of over 98,000 prognoses which found that the accuracy of prognoses in the several weeks or months range dropped to 32%. That means that 68% of patients receive an incorrect prognosis in that range, and they may find themselves qualifying and choose to die, thinking that this is what is going to happen to them anyway, when they could have lived so much longer and their families and friends could have benefited from them continuing to live. As Murray and Etkind, writing in the BMJ, said:

“There are no valid tools, tests, or clinical examinations that can reliably and safely identify that a person is expected to die within six months”.

Paddy Stone, former head of the Marie Curie palliative care research department at University College London, agreed:

“My research demonstrates that there is no reliable way to identify patients with less than six or twelve months to live ... At least, no method that would be reliable enough to act as any sort of ‘safeguard’ for the proposed assisted dying legislation”.

Professor Martin Vernon of the British Geriatrics Society told the Select Committee:

“Doctors and health professionals are very good at predicting when somebody is going to die within one to three days. They are also very good at predicting when somebody is likely to survive beyond one year. In between those times—a few days to one year—it is almost impossible for a doctor to give an accurate prognosis”.

We have heard so often in the course of these proceedings that those who have disabilities are terrified that their lives will be seen as of lesser value and that they will be identified as suitable for assisted death at some stage when they are suffering from pneumonia or an unhealed pressure sore, for example. We know that there is a significant risk of unconscious bias against such patients. Dr Alex Hughes of King’s College Hospital, noted in written evidence that doctors who choose to participate in assisted dying may be a self-selecting group, leading to a

“heightened risk of unconscious bias and therefore an increased risk of incorrect prognostication”.

The noble Baroness, Lady Grey-Thompson, in oral evidence to the Lords Select Committee, noted that a diagnosis of six months does not protect disabled people, arguing that the time limit could easily be eroded or doctors might intentionally overlook the six-month criterion due to inherent discrimination against disabled people.

There is also the risk of confirmation bias, particularly where a doctor decides to initiate a conversation with a patient about assisted dying. In so doing, the doctor has reached certain judgments about the patient. However, the doctor’s assessment of the context in which the patient lives may be uninformed, and when coming to a decision about whether the patient has more or fewer than six months to live, their initial judgment may be confirmed by them as a consequence of unrecognised confirmation bias. If the doctor has made a decision that something may happen but is unaware of factors which may impact on the patient’s decision-making, the doctor may well feel confirmed in his judgment after discussions with the patient. That is a significant risk, given the extent to which patients generally believe that the information and advice given by doctors is to improve or enhance their situation, and also the extent to which patients have difficulty in comprehending what they are being told during these very sensitive discussions.

This is a very difficult issue, but the evidence is very sobering when one considers that an assisted death does not just deprive the dead patient of a future but deprives those who love them of a future together which may last years. It is for that reason that I support these amendments, which seek to clarify what the standard should be.

A further question is whether the Bill applies a proper test for access to assisted suicide. Autonomy is the all-important other factor once a person has a diagnosis and the requisite prognosis. This test is not widely used in other jurisdictions, and the consequence of using it is that there is, under the Bill, no consideration of all the issues which we have discussed thus far during the Bill’s progress through your Lordships’ House: inability to access palliative care, pregnancy, disability, serious mental illness, poverty, bad or no housing, a sense of being a burden. The noble and learned Lord, Lord Falconer, told us that these considerations may properly contribute to a person reaching a clear, settled and informed wish to die, but it can well be argued that, if a person’s problems, due perhaps to poverty, isolation or a fear of being a burden, could be addressed if they had a little more money or a decent place to live, they might well choose to live, not to die.

In so many cases, it is the circumstances of their lives which lead so many people in other jurisdictions to seek assisted suicide and euthanasia, not illness. People talk of the right to choose to die, but they do not talk of the effect of being crushed by poverty and isolation, especially if it is accompanied, as it is in so many cases of terminal illness, by disability: people think that there is no way forward for them. The Bill could lead to the rich and comfortable rejecting assisted dying and opting for palliative care in all its forms and living contentedly and normally without suffering for much longer than the six-month prognosis, while the poor and the marginalised die. It could lead to those with serious mental health problems choosing assisted dying at a moment of suicidal ideation.

The CQC report on the Mental Health Act, published last week, told us that Black people are being detained at four times the rate of white people, and that people living in deprived areas are 3.6 times more likely to be detained under the Act than other people. I do not think that this is covered in the impact assessment. The answer to these problems is not to be found in killing people; rather, it is to be found in caring for them.

My Lords, I have four amendments in this group, three of which are closely related. They are Amendments 85, 894 and 896, the latter two of which are consequential on Amendment 85. I also have Amendment 100, but I will come back to that towards the end. I am grateful to the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Hamilton of Epsom for lending their names to Amendment 85, and to the noble Lord, Lord Carlile of Berriew, for adding his name to Amendment 894

One of the concerns about the Bill is the possibility that the definition of one of the key qualifications, to have a terminal illness, becomes expanded over time—what I am going to call “creep”. I will not detain the Committee with examples from other jurisdictions, but there are examples where the scope for assisted dying has been made available to people with conditions that would hardly qualify as terminal illness and might well not have qualified as appropriate in the minds of the legislators who first put the legislation together. I think it would give the public some confidence in the Bill if they were to know that the capacity for creep was severely limited. My suggestion for limiting it is that there should be a list of what constitutes terminal illness. I am not suggesting that this list should be in the Bill; I believe it should be issued by the Secretary of State by way of regulation and should be updated periodically in the light of medical advice.

I turn now to a couple of questions I have for the noble and learned Lord, Lord Falconer, and I will then deal with some objections that might be raised. My first question concerns his own definition, in Clause 2(1)(a), that

“the person has an inevitably progressive illness or disease which cannot be reversed by treatment”.

My question to him in the first place is whether he regards “inevitably” and “progressive” as adding anything to the notion of being terminal; in other words, is each a subset of the other? Is the definition getting narrower with the addition of each of those words, or are they in fact otiose? If you left them out, would the scope of the definition be just the same? I would be interested to know his answer, although it does not affect directly what I am now going to say.

The question of the list was dealt with in the other place to some extent, and arguments were made which suggested that it would all be very difficult because people did not always die from one illness: sometimes they had two terminal illnesses, or they had complications or comorbidities. Medically, I am sure that is absolutely the case, but I do not think it is relevant to what I am arguing for, because the Bill is clear that you have to pass certain qualifications and thresholds to be considered for assisted dying. One is that you have

“an inevitably progressive illness or disease which cannot be reversed by treatment”,

but you have to have only one of them in order to qualify. You could have two, but you would still qualify—it is irrelevant. You could have one with several comorbidities, and you would still qualify. It does not matter how an individual might die in the end. What matters is their condition at a particular moment and whether they have

“an inevitably progressive illness or disease” at a particular time—so applying the list does not seem very difficult to me.

The other objection that might be raised is that the list would be very difficult to put together because there are many illnesses or diseases, but I think this is wrong. If one considers illnesses or diseases as a way of dying, and one excludes such things as falling off a roof or some adventitious accident of that character, the diseases or illnesses on the list are all known. We know, medically, what people die of. Very occasionally, a new illness or disease of a terminal character arrives. AIDS was an example in the 1980s and 1990s. It completely shocked us, partly because it is such a rare thing for a new terminal illness or disease to arrive. Of course, my amendment would allow for the Secretary of State to adjust the list if there were such an eventuality in the future, heaven forfend. We do know what they are, and we can put them together. The Secretary of State can make a list, it will be subject to scrutiny—because, as I think the noble and learned Lord will confirm, all regulations made under the Bill have to be made by affirmative statutory instrument—and people will be able to comment. I think that would give them great assurance that creep was not going to be a feature of this. I would be grateful to hear the noble and learned Lord’s response to that proposal.

I come briefly now to my Amendment 100 in this group, which is quite different. This is genuinely probing because, when I read the Bill and got to Clause 2(4), I found a sentence that began:

“Nothing in this subsection results”.

It was strange, typographically, because it is not a new paragraph—there is not a paragraph break—but nor does it run on directly as a sentence. It has obviously been botched in at some point, probably in the other place. Anyway, these things happen. I read it, and then I read it again, and I read it over and over again. At the end of it, I still could not work out what the sentence actually means. Even if I could construe it in such a way that it did mean something, I would not know what it meant in the context of Clause 2. This is a genuine probing opportunity for clarity from the noble and learned Lord as to what import he thinks this sentence has in the clause. It would certainly please me, and I think many other noble Lords, if we understood that and whether, in fact, it should stand or be swept away. My proposal to delete it at this stage is, as I say, entirely probing, in order to hear what the noble and learned Lord has to say.

My Lords, I have tabled Amendment 73. One of the issues here is whether a disease is terminal without treatment. A simple example is type 1 diabetes. The World Health Organization classifies diabetes as a disease. That means that, under the Bill as it stands, as pointed out by witnesses in oral evidence to the Commons Select Committee, anybody who decides not to take their insulin, for whatever reason, would automatically have an irreversible disease and they will die. I want to explore through this amendment whether that is what we are thinking about.

We know that people can withdraw from treatment on lots of things. That is not what we are debating. There are examples of things having been extended in other countries, and I appreciate that we will get on to anorexia and similar issues in another group, so I will not dwell on that. I have been led to believe that even conditions such as arthritis, HIV/AIDS, as my noble friend has just referred to, and hernias have been used as examples of things that are irreversible without treatment. We should consider this carefully, and hear and understand why we are not putting some condition on the definition of terminal illness.

I cannot remember which professor it was who spoke to the Commons Select Committee about this, but they suggested that, as it stands in clinical practice, if somebody suddenly said in hospital or to their GP, “I’m not going to take my insulin any more”, people would immediately try to understand why they were trying to accelerate their death in this way. In this Bill, the standard Mental Capacity Act 2005 is the test—simply whether they are in the right mind to make this decision. People might disagree with that decision, but there is no further attempt to understand it, as would happen in regular clinical practice.

That is why we need to try to get a sense of “terminal illness”. Many people are successfully treated for cancer; it is also one of the biggest killers, as I am sure yesterday’s cancer plan recognised. We should also be thinking carefully about not exactly safeguards but processes that we need to get in place to try to understand what more we can expect clinicians to do under this Bill to ask those sorts of questions—it is technically a terminal illness but, as we know, people live with type 1 diabetes for an exceptionally long time and have very fulfilling lives. We should reconsider those aspects of the definition.

My Lords, I have not spoken in this debate before, but the contribution of the noble Lord, Lord Pannick, last week made me want to do so. He reminded us that:

“Nobody could say that a doctor can tell you that you will die within six months. But the Bill does not so provide. Its conditions require only that the doctor, and the panel in due course, are satisfied that … the person has an inevitably progressive illness or disease which cannot be reversed”—

The noble Lord is not down as having been present at the beginning of the debate last week.

My name was on the list. I checked last week and my name was on there.

Noble Lords:

Let him speak.

If it is the will of the Committee to hear the noble Lord speak, then fine.

Thank you. I checked before I left, so I am puzzled.

The noble Lord, Lord Pannick, referred to situations where, as set out in the Bill,

“‘the person has an inevitably progressive illness or disease which cannot be reversed … and … the person’s death in consequence … can reasonably be expected within six months

We know from all the evidence we have heard that trying to predict when someone will die is not a precise science, but that is not really the point of this Bill. It is about ensuring that people have a right to choose and are doing so in circumstances where we can feel reasonably confident that safeguards are there.

I look at the safeguards in the Bill, and this is a very cautious step forward:

“Initial request for assistance: first declaration … Witnessing first declaration … First doctor’s assessment … Second doctor’s assessment … Doctors’ assessments: further provision”.

Some noble Lords are speaking as though we have just one doctor, who may not be very mature or experienced. That is not the case in this Bill. It is much more careful and cautious. The noble Baroness, Lady Jay of Paddington, reminded us last time that

“one of the international facts that supports entirely the position he is taking is that, in the … 33 jurisdictions where assisted dying is allowed, it is usually the case—I cite one or two—that, following that suggestion by a doctor, or prognosis or however you want to describe it, over a third of those who make the choice he has described then do not use the provision … There is no question that they want to die; they are simply using it almost as an insurance policy

I understand that there is a real difference of opinion in this House. Some feel that, if we make this step forward—I listened carefully to the noble Baroness, Lady O’Loan—without putting more things in the Bill, it will be unsafe. I do not take that point of view. We are giving people, as the noble Lord, Lord Pannick, said, the right to choose. That may not accord with the views of all noble Lords. Others want us to take into account degree of suffering and all sorts of circumstances, but I do not accord with that. I take the view that we in this House are trying, with some difficulty, to ensure that we have a Bill that gives people the right to choose and has significant safeguards. Can it guarantee that we can tell people exactly when they will die? Of course not. Minister Wes Streeting announced recently that we will make significant improvements in cancer treatment, which will change people’s lives fundamentally. On those grounds, I hope the House will continue to support this Bill.

My Lords, can I address the Committee on a personal note? My late brother-in-law suffered from muscular dystrophy, a horrendous progressive disease that many noble Lords may have come across. In the last years of his life, he was pushed around in a wheelchair. It was very difficult for the family, particularly for my wife, his sister.

Order. The noble Lord is not on the list. He was not there last week and should therefore not be taking part.

Is the Committee prepared to hear me?

Noble Lords:

Yes.

Thank you. I apologise to the front bench about that.

The problem was, in the later part of his life, his lungs began to give way. I remember him saying to me, in the last two or three months of his life, “I just wish somebody could help me so that I could end my life”. Watching a member of your close family die from a horrendous disease is something I hope the House will take into account. I am very concerned about Amendment 105 because I think is very tough indeed, and I sincerely hope that the House will reject it.

Would the noble Lord agree that the word is “suffocated”, rather than “die”?

I apologise. Yes, the word is “suffocated”—he was suffocating as his lungs began to fade.

My Lords, I support the Amendment tabled by the noble Baroness, Lady Coffey. I am going to talk about my sister, whom I asked before she died whether I could bring her case before your Lordships. She said yes, so I have.

My sister had a very unhappy life; she was badly abused when she was a child and tried to kill herself three times before she was 20. Thankfully, she stayed alive until she was 75, and all the time she expressed her will as, “I don’t want to live”. When I was introduced here, she was here, and she said, “I’m glad I’m alive”, which I was very happy about. However, thereafter, she developed lung cancer. She had been a smoker, and she was obviously dying but she refused treatment. She allowed the lung cancer to kill her, but at all times, she had the option to have treatment for it. She had the autonomy to take the positive route, but she decided not to. She did not have any assistance from anybody else, and she died fairly peacefully when she was 75. I wanted to bring her case to your Lordships’ House in support of what the noble Baroness, Lady Coffey, was saying.

My Lords, I rise to support Amendment 105 in the name of the noble Lord, Lord Hunt of Kings Heath, to which I have added my name. I am saddened by the prejudice we have heard expressed by Members of your Lordships’ House this morning. For those of us with a lifelong congenital condition, this amendment is personal. It is also crucial because people like me need protection from such blatant prejudice—prejudice which the pandemic showed can inform so many clinical, and even administrative, decisions affecting disabled people’s care and treatment: decisions about life or death. This amendment would give those of us with lifelong congenital conditions some protection.

I can imagine that some noble Lords might be sceptical as to how an NHS founded on the principle of equal access to treatment, free at the point of delivery, could possibly also tolerate a culture of discrimination on grounds of disability. Surely, that is the very antithesis of its founding charter. Perhaps it is, but we human beings, being humans, bring our prejudices and—as the noble Baroness, Lady O’Loan, so ably reminded us—our unconscious bias to work, and healthcare staff are no exception. This is especially the case when the very nature of a congenital lifelong disability can often mean a condition that, despite very expensive treatment, may never be cured.

I was reminded of such prejudice only recently when attending an appointment at a world-renowned London hospital. The clinical staff could not have been nicer or more professional. In contrast, the young receptionist could barely conceal his hostility when I spoke to him. I have no idea why, as he was laughing and joking with another patient soon afterwards. All I know is that I experienced and immediately recognised discrimination, as if somehow, I chose to look or sound like this. I most definitely did not, yet I am discriminated against because of it.

I will never forget that when I was beginning my slow and painful recovery following neurosurgery 30 years ago, it was not the intense pain or the absolute exhaustion which nearly killed me, but rather the shocking and brutal awareness that some of the nursing and medical staff’s expectations for my recovery and life chances were so unbelievably low. There was I, a young man who, only 24 hours earlier, had taken a call from a Minister confirming that a charity campaign I had led had secured £50 million, suddenly reduced to being unable to speak, swallow or even breathe independently—crushed by the cultural presumption that, as a disabled person, I should have minimal expectations for the rest of my life.

I share this lived experience, which left me with a diagnosis of PTSD at the age of 25, and which I would much rather have consigned to the deepest recesses of my mind, because it is directly relevant to this amendment. Sadly, there are so few of us in your Lordships’ House who can draw on such lived experience and insight, which brings me to another essential point.

The noble and learned Lord, Lord Falconer of Thoroton, has raised the issue of legitimacy. Specifically in relation to Amendment 105, given that your Lordships’ House is so desperately unrepresentative not just of disabled people but particularly of people with lifelong congenital conditions, perhaps the noble and learned Lord could explain in his closing remarks why on earth any non-disabled Member of this House would presume that, as a law-making body, it has the authority or the credibility, or indeed the legitimacy, to reject this amendment. It has none, and I remind your Lordships’ House that not one—not one—organisation of or for disabled people supports this Bill.

I have another question. I was given a six-month terminal diagnosis. As a last resort, I was operated on, for 12 hours. According to one of the surgeons, who took great pleasure in telling me afterwards, it was pretty aggressive surgery—but hey, I was going to die anyway. By some miracle, having spent three years learning to talk again, I am still here. Yet my overall condition is inevitably progressive and cannot be reversed by treatment. So I wonder if I would qualify for assisted dying. Perhaps I would, in time, but I would be far less likely to fall victim to scope creep if this amendment was passed.

I mention scope creep. I fear that the Bill implicitly puts a price on my head and those of people with lifelong congenital conditions, because it effectively facilitates a pathway whereby withholding expensive treatments risks making people like me eligible for assisted dying. Let us remember that some people are determined that this Bill, as has been the case in other jurisdictions, is only the beginning. Already My Death, My Decision has criticised the Bill as inadequate. Now I have huge respect for lawyers, particularly those in your Lordships’ House, but that does not mean I am comfortable about the likelihood that some of them may push to extend the law, perhaps by using the ECHR.

This Bill poses a very real and present danger for people with lifelong congenital conditions. This amendment is crucial to mitigating that threat. I close with this appeal to the noble and learned Lord, Lord Falconer. Please will he accept this amendment? Will he confirm that he agrees with me that our consideration of this crucial amendment should neither be regarded nor represented as filibustering?

My Lords, the noble Lord, Lord Shamash, mentioned a very moving story from his family regarding Duchenne muscular dystrophy, and I have a similar story but from a slightly different angle. My cousin Stephen was diagnosed with Duchenne muscular dystrophy in the 1960s, when this was a terminal illness without any real idea of a prognosis other than that those with it would die as very young people.

My family were determined to try to make Stephen’s life as comfortable and as long as possible. They campaigned with their local MP, who just so happened to be Alf Morris, Baron Morris of Manchester—an outstanding Member of Parliament, and of service to this House. They worked with him to come up with the Chronically Sick and Disabled Persons Act 1970. They went on to develop therapies for Duchenne muscular dystrophy, including making wheelchair provision compulsory on the NHS. My cousin lived five years longer than the average for Duchenne muscular dystrophy patients. The point I am making to the Committee is that if the assisted dying Bill had been used to that extent, and if we had given up when he was a very young man, that never would have happened.

Stephen had a full life, in so far as he could; he lived till he was 21 years of age, when the average was 14 or 15. It goes to show that, if you give up at a very early stage, you will not know how far you can push this disease. In the 21st century, through medication, Duchenne muscular dystrophy sufferers have an extended lifespan. In offering assisted dying to people with chronic diseases, we do not know the miracles of science and medication that can extend these people’s lives.

My Lords, I am another Peer who sat here for many hours last Friday, desperately keen to speak to this group of amendments. Towards the end, at nearly 5.30 pm, I heard the magnificent speech of the noble Lord, Lord Rook, who is not currently in his place. It really was an incredible speech. I suppose the only benefit of being a sort of carry-over, tail-end Charlie was that I was able to read his speech in Hansard once again. I commend it as superb. I concluded that there was nothing I could usefully add to what the noble Lord had said, so I have decided not to try to add anything more to it, and I conclude my remarks.

My Lords, I will speak briefly to put on the record one useful piece of information, which is very relevant to the debates that we have had. Somebody previously referred to the welcome cancer plan that the Government published, and I thought it worth sharing with the Committee that there was an important and relevant piece of information in the plan that your Lordships might wish to be aware of.

I think the noble Lord, Lord Stevens of Birmingham, referred to the Government’s plan for palliative care. When we spoke about it, I think just last week, the expectation was that that plan would be published this autumn—I hope the Minister can confirm that I have got that right. The cancer plan makes it clear:

“Next year, we will publish a Modern Service Framework on Palliative and End of Life Care to address these challenges”.

Without being explicit about it, the palliative care plan has now slipped into 2027, with no indication of when in 2027. Given my experience of these things, it could easily be the end of 2027. We are being asked to consider the Bill when the Government are not even going to publish their palliative care plan until some time next year—and it has already slipped twice in a few months.

I draw two lessons from that. First, if we do not have high-quality, universally available palliative care then we are not giving people a genuine choice. As my noble friend Lord Shinkwin said, expectations in society will push people inevitably towards assisted suicide, whether they really want it or not. The second thing that says to me is that palliative care is not really a priority for the Government. If you cannot even produce the plan to improve palliative care, which was originally going to happen this year, until some time next year, with no specific date attached to it, heaven knows what your priority will be when actually delivering the services that people require. My sense is that, if the plan will not come out until next year, we will not see improved services even in this Parliament. In that case, there is no meaningful choice. On that basis, we should not proceed with this Bill.

My Lords, I have added my name to Amendments 82 and 83A, in the name of the noble Lord, Lord Polak. I note that Amendment 83, which was tabled by my noble friend Lady Murphy and the noble Baroness, Lady Noakes, has been withdrawn. It would have extended the period of eligibility from six to 12 months for neurological conditions.

I added my name to these two amendments because it is important to have real clarity on what we mean by a six-month diagnosis, as well as to have specialist certification by an independent consultant. I added my name because Professor Paddy Stone, who is the former head of Marie Curie palliative care research department at UCL, said there is no reliable way to identify patients with a six to 12-month diagnosis and no method that would provide an adequate safeguard. We have to remember that no royal college supports this Bill or thinks that the safeguards in it are good enough.

Amendments 97 and 98 would tidy up the language in the Bill. This is quite a minor point, but “person with a disability” does not exist in law. It is used interchangeably in the Bill and society, but “with a disability” suggests that my impairment is something I can pick up or put down at will, which I cannot. To show some understanding of what disabled people experience, the Bill should use the language of both the DDA and the Equality Act, and should recognise that the social model of disability exists. I do not know whether the drafting was a refutation of the social model, or perhaps a drafting mistake, but it shows a lack of connection to disabled people and deaf and disabled people’s organisations. We are told that language changes all the time—it really does not. Different language may be used around the world, but this is British law, and we should use the words that are in Acts that already exist.

Last week, the noble Lord, Lord Harper, mentioned things we think we need to fix but never get round to, and I thought of an example at the time. The DDA—I sat on the National Disability Council with the noble Lord, Lord Shinkwin—said 31 years ago that taxis in this country should be wheelchair accessible. Thirty-one years later, we have still not sorted it. I have tabled an amendment to the English Devolution and Community Empowerment Bill, for next week, to fix that. Given that we have had to wait 31 years for taxis to be accessible for disabled people, can noble Lords not understand why disabled people fear this Bill?

Amendment 106 in the name of the noble Lord, Lord Hunt of Kings Heath, and my noble friend Lady O’Loan looks for clarity on that six-month diagnosis. We are constantly told there is nothing to worry about, but those are easy soundbites. The Bill is caught between two competing policies: trying to ensure safety versus personal choice. The state has a duty to ensure that those choices are sufficiently informed and based on accurate medical assessment. Building in an independent prognosis would recognise that, in a life-ending law, the margin for error must be minimal and oversight must be robust. It would send a clear signal that assisted dying is exceptional and that those who seek it must face rigorous, medically sound scrutiny that reinforces public trust and protection for vulnerable individuals.

Other amendments in this group are about recognising whether a condition is stable, and are there to protect disabled people, whose impact of impairment might mirror a terminal condition. The noble Lord, Lord Shinkwin, talked about his impairment. I look to myself: I found out two years ago I have only one and a half kidneys. I would have thought that medical professionals would have told me that slightly earlier. If I chose to stop catheterising, I would very quickly experience urinary tract infections, backflow to my kidneys and almost immediate kidney damage, so would someone like me be included in the Bill?

We have had lots of letters from people with MND and lots of other conditions who assume that if the Bill passes, they would be part of it—but many of those conditions would not be included. I find it interesting that the noble Lord, Lord Moylan, suggested having a list. We must think about this really clearly, because we might be giving false hope to people right now who think they would be included, when they actually would not.

I ask the Minister: what are the Government doing about frailty? We discussed that last week. Some 10% of people over 65 are frail, which goes up to nearly 50% for those over 85, and 30% to 40% of people over 65 who are admitted to acute wards are living with frailty. These would all impact whether somebody would choose assisted suicide. I recognise this crosses into some of the groups we will talk about later, about whether someone may refuse treatment.

I thank the noble and learned Lord for the meeting yesterday; we probably agree to disagree on whether he is answering questions in the Chamber. I would like to know whether he has read the paper by the Complex Life and Death Decisions group at King’s College London, which perfectly captures some of the issues we are trying to grapple with. One of the examples in that paper was of someone with diabetes who takes insulin, who manages their condition but becomes depressed and decides to stop taking the insulin, knowing that they will die, so that they might be able to request assisted suicide. Would this person be eligible for the Bill? I am worried about the pressures that doctors would be under when they make judgments about quality of life. We must be very careful that any safeguard does not slip to seven or eight months, or that expansion does not come via the back door.

I also raise the issue of my noble friend Lady Campbell of Surbiton having to contribute remotely. Any disabled Peer who is allowed to speak remotely has to speak first in the debate after the mover of the amendment. They have no opportunity to raise questions or intervene. I recognise that the technology is not easy, but they are not able to contribute in this debate on an equal basis. I have said before that it would be sad if the only place that we are talking about equal access for disabled people in this country is through the Bill, but this is Parliament. If we cannot give equal access to disabled people here, what are we actually doing?

My noble friend Lord Pannick spoke very passionately last week about the word “reasonable”, which is a very difficult word for disabled people. We were promised reasonable adjustment in both the DDA and the Equality Act. “Reasonable” sounded reasonable at the time, but it is actually used to stifle and stop the inclusion of disabled people. Last week’s debates made me even more convinced that we have to provide really good information to people who are requesting assisted suicide, so that they absolutely understand the pros and cons of what they are entering into. This clarity is really important. I do not think we can necessarily have a list, but it is way too vague at the moment. Many of us have talked about the equality impact assessment, which is not good enough, and we have been told that the Government are not going to revisit it. However, I do not believe the numbers in that equality impact assessment—they are going to be much higher than we think they are.

Finally, I will raise the palliative care framework and when that report will come out. When I met the noble and learned Lord yesterday, we talked about reassurance and whether we could agree to get this debate, which started off as 23 groups, to 20 groups. I said yesterday to him that I am not able even to think about what that grouping might look like until we have the answers to some of these questions. It is really important that there is some urgency around the palliative care framework and that report being launched, because we are not going to have reassurance about what the world is going to look like until we see that data. I would be very grateful if the Minister could answer that, and I very much look forward to the noble and learned Lord’s answers to the questions I have raised.

Building on from that, that is correct: there are two different approaches here. There are those among us who believe that choice should come first, and within that choice there should obviously be protections and safeguards. Then there are those people who have equally very firm beliefs that the restrictions should be in place first as protections. To summarise, a lot of the amendments in this group are about having certain illnesses and certain groups, such as disabled groups, that should be excluded from the Bill, and that you should be allowed to have this only if you have unbearable pain or suffering, or if there is no chance of treatments to extend life.

I will bring two points in here. Public opinion is overwhelmingly in favour of choice, at 70% in all the different opinion polls. I include disabled groups in that: they show that 70% of disabled people are in favour of it. Then, there are the personal experiences of people who are terminally ill: first, they do not want to die. They would be delighted if there were treatments that would extend their lives beyond six months, or for much longer. But, for them, getting the opportunity to have a death of their choosing is a great comfort and insurance. It does not mean that they are going to rush out and take it as soon as they have it. In a lot of cases—about 30% in other countries—they will not use it at all.

However, the fact is, those people want it to be there, like an insurance policy, so that if, towards the end of their life, they really do have unbearable suffering, however they define it—which might be pain, a loss of dignity, a feeling that they really do not want to go on—then they can have that choice and reason for wanting to do it, whatever their choice is. That is the important thing that we are trying to ensure. Yes, there will be protections, but giving people the ability and autonomy to have the comfort and the choice of being able to die in the way they wish is the most fundamental right of all.

My Lords, I am grateful for the contributions on eligibility and definition of terminal illness. Once again, I will keep detailed comments limited to amendments on which the Government have major legal, technical or operational workability concerns.

First, I will give a reassurance to your Lordships’ House in response to the observations of the noble Lord, Lord Harper, and the noble Baroness, Lady Grey-Thompson, about the modern service framework on palliative care and end-of-life care. We acknowledge that there has been a drafting error, which the noble Lord and the noble Baroness picked up on. The drafting error is in the national cancer plan. I reassure your Lordships’ House that, as has been stated previously, the interim update will be published this spring and the full modern service framework will follow in the autumn. That issue was purely down to a drafting error.

I turn now to the amendments. Amendments 71, 77 and 79 were tabled by the noble Lady, Baroness Finlay, and Amendments 83A, 104 and 105 were tabled by the noble Lord, Lord Polak, my noble friend Lord Hunt of Kings Heath and the noble Baroness, Lady Grey-Thompson. Noble Lords may wish to note the Government’s workability concern with this set of amendments. Key terms and concepts in the amendments are undefined, which may introduce uncertainty when determining who is eligible under the Bill and, particularly under Amendments 71, 77 and 79, what it means to slow a disease. There is a risk that unclear eligibility criteria could result in ambiguity for those applying the legislation, which may give rise to legal challenges to decisions made under it.

Amendment 105 could also give rise to legal challenge on the basis that excluding people with particular conditions from assisted dying may not be justified under Article 2 or Article 8 of the ECHR and may amount to unjustified discrimination under Article 14. Any differential treatment would need to be objectively and reasonably justified in order to comply with ECHR obligations.

Amendments 74 and 94, tabled by the noble Lord, Lord Taylor of Holbeach, would exclude from the definition of “terminal illness” any individual whose condition can be meaningfully halted or controlled by available treatment. Clinically, it may be difficult to determine whether an illness or disease can be “meaningfully halted, or controlled” by treatment, and it is possible that an illness or disease could have a short halt before deterioration starts again. This will make it difficult for clinicians to decide whether a person is “terminally ill” and eligible for assisted dying and is likely to lead to challenges to decisions. These amendments may result in a person becoming ineligible, irrespective of whether they choose to take the available treatment.

Amendment 75, tabled by the noble Baroness, Lady Finlay, would amend the definition of “terminally ill” by removing the test of death being reasonably expected in six months, and replacing it with a requirement that the rate of progress of the disease, with treatment in line with NICE guidelines, indicates that death can be expected within six months. Introducing the concept of treatment in accordance with NICE guidelines may create difficulties, as the amendment would require clinicians to assess the patient’s prognosis as if they were treated in accordance with NICE guidelines. This may result in a person becoming ineligible, irrespective of whether they chose to have treatment in accordance with NICE guidelines. This amendment therefore requires clinicians to make a judgment on a potentially hypothetical basis.

Amendment 80, tabled by the noble Baroness, Lady Lawlor, would provide that a person is “terminally ill” where their death has an 80% likelihood of occurring within six months, according to the written opinion of two specialist, consultant-level hospital doctors. These doctors must be knowledgeable about and have experience of treating patients with the progressive illness in question. This amendment would create significant operational workability concerns. It would require the clinician making a determination about the person’s prognosis to meet a high threshold of certainty. The criteria could be especially difficult to meet for a person who has a rare progressive illness or disease, about which there may not be widespread clinical knowledge or experience.

Amendment 82, tabled by the noble Lord, Lord Polak, would require two consultants to provide a view on an individual’s life expectancy, and for them to determine that their death can be “highly probable” within six months, rather than the current drafting of, can be “reasonably expected”. Several terms are not defined in the amendment and are likely to lead to ambiguity, including operational issues, around which doctors are to assess life expectancy and to what standard.

Amendment 444A, tabled by the noble Baroness, Lady Finlay, seeks to change the Bill’s eligibility criteria from six months to three months at a later stage in the process, by requiring the panel to be satisfied that a person’s

“death can be expected within three months” before granting a certificate of eligibility. This amendment would create significant workability concerns. First, it is in direct conflict with the eligibility criteria set out in Clauses 1 and 2, which require that a person’s death

“can reasonably be expected within six months”.

Secondly, this amendment, by not including a test of reasonable expectation, would require a higher degree of confidence around the prognosis. It is likely to be challenging for a panel to assess this, given its reliance on evidence from the co-ordinating and independent doctors, who will have applied a different six-month test. In addition, given the lack of clinical evidence and guaranteed information on which to base the panel’s decision, there would be an increased risk of legal challenge.

I turn to Amendments 85, 894 and 896, tabled by the noble Lord, Lord Moylan. Amendments 85 and 896 would require the Secretary of State to specify a complete list of illnesses or diseases that fall within scope of what is “terminally ill” in regulations. As drafted, these amendments are likely to be unworkable, as it is often a combination of illnesses interacting, as opposed to a single one, that leads to a terminal diagnosis. This means that it would be extremely difficult, if not impossible, to list accurately all possible combinations of conditions that would lead to a prognosis of less than six months. This amendment leaves it to the Secretary of State to decide what counts as a terminal illness or disease, and the basis on which they are to do so is ambiguous.

Amendment 894 would alter the commencement provisions, meaning that the voluntary assisted dying commissioner would need to have substantive functions, and to have been appointed, within 12 months of Royal Assent. If the Bill, once enacted, were not otherwise fully operational within 12 months, the commissioner would be asked to exercise functions with respect to a service that did not yet exist.

Finally, Amendment 106, in the name of my noble friend Lord Hunt of Kings Heath, would affect those applying for an assisted death where the terminal illness has arisen from medical negligence, malpractice or omission by a healthcare professional or institution. The process of obtaining an assisted death would be halted until all investigations, compensation and support had concluded. This could delay assisted dying to otherwise eligible people, as a person’s medical history for their illness or disease would need to be assessed for negligence, malpractice, omission or error before they would be eligible.

I make no comment on the other amendments in this group. However, as noble Lords are aware, the amendments have not had technical drafting support from officials. Therefore, further revision and corresponding amendments may be needed to provide consistent and coherent terminology throughout the Bill.

May I pursue a point the Minister made about my Amendment 85? My understanding of the Bill, as drafted, is that one has to have an inevitably progressive illness or disease, not that one has to have a six-month prognosis of one’s death. The two might be quite separate.

One might, as the noble Baroness said, have a combination of circumstances that means one is likely to die within six months without having a specific, identifiable disease. The Minister seems to be saying that the Government’s interpretation of this Clause is that one does not need to have a specific, identifiable terminal illness; one simply needs to have a set of circumstances that together might result in a prognosis of death within six months.

If that is the case—and that is the Government’s view of the meaning of that clause, as the Minister seems to imply—that widens to an astonishing extent the conditions that might qualify for the Bill. I would like to hear the Minister say—and the noble and learned Lord, Lord Falconer, may possibly want to comment on this when he speaks—whether it really is their interpretation that it could be any set of circumstances that lead to a six-month diagnosis without there being an identifiable illness.

I will briefly look at the actual Amendment. As I said in my response, the workability concerns are about the specification of a list of illnesses or diseases. I have already outlined why that would be unworkable—because it is often a combination of illnesses, as well as the complications of those illnesses, that are interacting, rather than there being just one. I referred earlier to why it would be extremely difficult. I have been looking at the specifics of the amendment, but to do what it says would create more ambiguity than there is currently. In reality, my response is covering our concerns; where I do not make a comment, there are no workability concerns.

As the Minister will know, I have made it clear that I am concerned about suffering in the last days of life. One of the key elements of that is palliative care. When one talks about treatment, one of the incentives for death is suffering. Does the Minister have anything to say to the Committee about the status of palliative care within the National Health Service? Are there any plans afoot, and when will this particular course of treatment be available to people? Otherwise, many people faced with terminal illness will be tempted to seek assisted suicide, which I think should be discouraged.

We are discussing a group of amendments about the definition of terminal illness. I have already placed a letter in the Library of the House outlining all the work in respect of palliative care. I have also made reference to the modern service framework.

Having listened to my noble friend Lord Moylan respond to what the Minister said, I confess to being a little confused. The Minister seemed to be saying, in her comments about some of the amendments in this group, that the problem with having a list of conditions is that you could quite often have a terminal diagnosis as the result of a group of conditions, circumstances or illnesses. In my reading, the Bill does not say that. The Bill says:

“For the purposes of this Act, a person is terminally ill if … (a) the person has an inevitably progressive illness or disease”— not lots of them; one—

“which cannot be reversed by treatment, and … (b) the person’s death in consequence of that illness or disease can reasonably be expected within six months”.

I carefully read the Amendment, which talks about a specified list of conditions. Incidentally, coming back to the point made by the noble Lord, Lord Markham, twice as many members of the public support that approach than a terminal illness. The Minister’s answer to my noble friend Lord Moylan seemed to be disagreeing with what is actually in the Bill, so I am now more confused than I was before she got to her feet. Can she clear that up?

I am sorry the noble Lord is confused. I know that my noble and learned friend Lord Falconer will be pleased to assist him with any confusion that there is in the case of this Amendment.

I suggest to the Minister that the answer to the noble Lord, Lord Harper, is very simple. An unfortunate person may have more than one inevitably progressive illness or disease, each of which will lead to their death within six months. It is a standard principle of statutory interpretation that the singular includes the plural.

May I comment before the Minister sits down? I would hesitate to intervene on the noble Lord, Lord Pannick, because that would be quite correctly stopped by the Whips, but what he is saying is not to the point. If someone has one fatal illness that will kill them at some time in the future, such as a certain form of cancer, they may of course have another illness, say heart disease—I am not a medical person—that could equally see them off at some point in the future. Of course, that will be included in the scope—we entirely understand that.

That is not quite what the Minister is saying. She is saying that one might have a combination of circumstances, each of which might be non-fatal in itself, but that in combination they might result in a terminal diagnosis within six months. If one is frail—again, I am not a medical person—one might have pneumonia combined with certain other conditions, such that the combination could be very threatening and might lead to death within six months, but none of those instances would be fatal in itself. That seems to be what the Minister is saying, but it is not what the Bill says. There has to be an identifiable—

I am not entirely clear whether this is an Intervention or a speech. If it is an intervention, it should be clearer and briefer than that, and have an actual question. Please come to the point.

This has exposed something that has never been mentioned in relation to the Bill before, or in the whole of our debate on terminal illness. It is a matter of crucial importance. I know the Minister wants to dodge it, but it seems that the Government’s interpretation of Clause 2(1) is very different from what it appears to say in plain language.

I pay tribute to the speeches of the noble Lords, Lord Farmer, Lord Shinkwin and Lord Shamash, all of whom referred to distressing personal circumstances. The Committee is grateful that people are willing to talk about these issues in this very difficult debate.

This group of amendments concerns the definition of terminal illness. As people have just identified, the definition of a person being terminally ill to satisfy the requirements of the Bill is that

“the person has an inevitably progressive illness or disease which cannot be reversed by treatment, and … the person’s death in consequence of that illness or disease can reasonably be expected within six months”.

I will pick up on four points that came out of the debate. First, to deal with the point raised by the noble Lord, Lord Moylan, the words “inevitably” and “progressive” plainly limit the words “illness or disease”, so the illness or disease has to be both inevitable and progressive.

Secondly, to deal with the very important point raised by the Baroness, Lady Finlay of Llandaff, frailty is plainly not within that definition. Frailty, old age or something similar would not satisfy the requirements of

“an inevitably progressive illness or disease”.

That specific point was addressed in the Commons, where the initial draft of the Bill had the words

“inevitably progressive illness, disease or medical condition”.

The words “medical condition” were removed to deal with that specific point. The words

“inevitably progressive illness or disease which cannot be reversed by treatment” deal with the sort of example given by the noble Baroness, Lady Coffey, and other noble Lords. There will be illnesses or diseases, such as type 1 diabetes or HIV/AIDS, where there is a traditional and accepted treatment which will effectively reverse the effect of the condition. It will not get rid of it completely. You still may have HIV or be a type 1 diabetic, but the effect of the condition is reversed. The intention behind putting in the word “reversed” was to deal with those.

There will be difficult choices that people have to make when they are ill. For example, if you have a brain tumour that is going to kill you, should you have a very difficult operation? If you have cancer, should you go on taking palliative chemotherapy, which may be very distressing in a number of respects? The way the Bill is drafted means that this should not be available for people with a type 1 diabetes situation and it should not be compelling people to take very difficult and distressing decisions about health. I strongly support that approach.

Secondly, the requirement is that, in consequence of that illness or disease, you could be expected to die within six months. In terms of the point the noble Lord, Lord Moylan, began to career off with a few moments ago, the progressive illness or disease has to be what brings your life to an end. The point that the noble Baroness, Lady Merron, made was clear. Suppose I have cancer, I am being treated with chemotherapy and it is inevitable that I will succumb to an infection within a week, two weeks or six weeks. That is a situation where there is a combination, but my death will be in consequence of the cancer.

As far as the period of six months is concerned, I adopt the approach of Sir Christopher Whitty, who gave evidence in the Commons on the Public Bill Committee. The central view—that means the central likelihood of a particular person’s survival—“is usually reasonably accurate that someone is now on a point of a pathway from which there is not going to be a return. If you are going to choose one, this is a reasonable one. At six months, it is generally very predictable that someone is going to die in the foreseeable future. On whether it is five months or seven months, it is a lot harder, and there would be some caution”. Again, I agree with the accuracy of that and with the realism of it.

There has to be a period. You cannot have a Bill that just says “terminally ill”. What is the right period that gives people enough of a chance to think about what to do? It will be different for different people—to talk about it with those they love and reach a fair and settled conclusion on it. One has to choose a period, and for the reason Sir Christopher gave, six months is a reasonable one.

However, there is nobody in this Chamber who does not recognise that the closer you are to the end, the more accurate it is going to be. The statistics stating that many of these predictions are inaccurate are obviously right if one is thinking it is five months or seven months. But Sir Christopher is saying that, broadly, they are often accurate.

In the light of that approach, and it is a sensible and well-thought-out approach in the Bill, I will deal with the particular amendments. Amendments 71 to 74, 94 and 204 all suggest that you have to take into account any treatment which might slow, halt or ameliorate the condition. I understand that these amendments are based on the proposition that, in considering whether you have six months or more to live, you should have regard to treatments that could be taken, rather than those that have been taken, because plainly, you need to have six months or less to live before you become eligible. For the reasons I gave in my initial remarks, I am not in favour of any of these amendments, because they require the dying person to make difficult decisions about what care to take. I am, unfortunately, not in favour of those.

The next group of amendments tries to reduce or have a higher standard of proof for the six-month period. For example, the proposal from the noble Baroness, Lady Lawlor—

My Lords—

May I just finish this?

For example, the noble Baroness, Lady Lawlor, proposed 80% and two people expert in the area. The requirement of the Bill is that there should be a reasonable expectation that the person’s death will come within six months. That has to be approved by two separate doctors and a panel. Where there is any doubt about the prognosis, each or both of the doctors have to seek the advice of somebody specialist in the area. That seems an appropriate degree of safeguard.

I apologise to the noble Baroness.

I just wanted to clarify what the noble and learned Lord said. He said, as I understand it, that he did not support these amendments because they would mean that a dying person would have to make difficult decisions. Is requesting assisted suicide not a difficult decision, which they would already be taking?

Of course it is a difficult decision, but that is the decision the person has to be clear, firm and settled about. I do not see parity between the decision the individual has to make and making sure there are appropriately qualified people ensuring that the person has the disease. They seem to be two important but different requirements.

The next group of amendments, primarily advanced by the noble Lord, Lord Frost, is on the question of whether suffering should be an element in the eligibility—that terminal illness itself is not sufficient. We have had this debate a number of times, particularly at Second Reading, on some the circumstances where a terminal illness should be excluded. For all the reasons I have given in the past, I am not in favour of suffering being the requirement. What suffering is will vary from person to person. In some cases, it will be the indignity. In some cases, it will be the appalling thought of the change in relationship with those they love. For others, it will be the pain they are going through. It is not, in my respectful view, an appropriate or easily applied condition. So, for all the reasons I have given on a number of occasions before, I am against putting in the question of suffering.

The next group of amendments is that advanced this morning by the noble Baroness, Lady O’Loan. They say that if you are the victim of medical negligence, you should not be entitled to an assisted death. If, for example, your doctor failed to diagnose your condition early enough for you to get treatment and, as a result, you are likely to die earlier, even though you have the condition—for example, prostate cancer—is the position that, because of the negligence of your doctor, you are truly to be denied the right to an assisted death? Unfortunately, I cannot see the logic of that.

With respect, I did not say that you should be denied an assisted death. I said that assisted death should not be available until all compensation matters and so on have been sorted out.

I think that I have dealt with that point. I have dealt with “inevitably progressive”; I will now deal with the list of illnesses mentioned by the noble Lord, Lord Moylan. Again, I do not think that that is either practical or sensible. The state would have to identify all illnesses in a list; it might miss some, and new illnesses come. Surely it is much better that one has a definition of what the policy aim is, which is to cover

“an inevitably progressive illness or disease which cannot be reversed by treatment”.

I will indicate by an example why the noble Lord, Lord Moylan, is wrong. If you think about HIV/AIDS, how many people would have died without this option—if it had been made available—before the state would have been willing to recognise that it was a fatal condition? It would seem jolly unfair to people that you have to wait for the state to make that decision. The noble Lord, Lord Moylan, also asked for a—

I deliberately did not intervene on the noble and learned Lord earlier, because he dealt with the point and I thought that we had spent enough time on it. He has now just made it even more confusing. I just want to make sure that I have this right. The Minister appeared to be saying that you could have a set of conditions, none of which was fatal but the combination of them was terminal, and that that would trigger the circumstance. I said that that was not what the Bill said. The noble Lord, Lord Pannick, pointed out that if you had a range of conditions, all of which were fatal, that would count—I do not dispute that at all. The noble and learned Lord seems to be saying that if someone has a condition that is not currently recognised as terminal, they would qualify under the Bill. Did I hear him correctly or have I got that wrong?

The noble Lord has got that wrong. I was saying that, for example, the medical profession could easily recognise that HIV/AIDS is fatal. It would have recognised that at a particular time and that would be a medical diagnosis. The effect of the Amendment in the name of the noble Lord, Lord Moylan, would be that you cannot rely on HIV/AIDS as a basis for saying that you have an inevitably progressive illness or disease that cannot be reversed by treatment, which was the position for a long time, unless the state has put it into a list of regulations. I am saying that it should be the doctor’s determination of whether theTo go on with the questions that have been raised, the noble Lord, Lord Moylan, asked what the paragraph under Clause 2(4) means. It means that the fact that you have a disability or a mental disorder that cannot justify a terminal illness does not mean that you cannot nevertheless qualify because you do have a terminal illness that satisfies the requirement of Clause 2(1).

On the question of congenital disorder and Amendment 105, if the position is that you are suffering from a progressive illness or disease that is likely to end your life within six months, I think that you should be entitled to an assisted death. My noble friend Lord Shamash referred to such a condition in relation to his cousin; I am not in favour of excluding a particular category in relation to that.

Everybody in the House has enormous respect for the noble Lord, Lord Shinkwin, and I completely accept the proposition that those of us who are not disabled have to listen very carefully to those who are. It is true that, in the other place, Marie Tidball, who is a Member of Parliament, supported the Bill and was in particular influenced by the fact that amendments were made to it that ensured that a disability group would monitor the performance of the Bill. However, I completely accept the proposition that the noble Lord, Lord Shinkwin, makes that we have to listen as hard as we can because it is not part of our experience. That proposition applies not just to this Bill but to a whole range of Bills.

On two further points, first, a number of noble Lords made the point about developments in medicine. It is true that medicine develops all the time; one needs to keep up with those developments and the doctors making the diagnosis have to have those in mind. But the fact that there are going to be developments in the future does not prevent the position from being that at a particular moment in time—HIV/AIDS is the obvious example—because those developments have not yet occurred, those diseases are going to be fatal. The fact that something may occur in the future does not prevent the judgment from having to be made.

Finally, on Amendments 97 and 98, proposed by the noble Baroness, Lady Grey-Thompson, for understandable reasons she proposes effectively a shift in the wording to be much more respectful of disabled people. I can see no reason why we should not make that amendment.

The noble and learned Lord kindly agreed to address the issue of inadvertent misdiagnosis and he said that this group of amendments led by Amendment 71 was the time to bring that up. It was pointed out at the time by the noble Baroness, Lady Berger, that 23% of six-month diagnoses of death turned out to be wrong. How does that tie in with the Minister telling us that there had to be an assumption of an 80% chance of somebody dying within six months? Can the noble and learned Lord address that problem before we finish?

First, I am saying that six months is safe for the reasons that Chris Whitty gave: six months is generally about right; it might not be right and it might be five months or seven months, but it is a proper basis on which to proceed. The statistical evidence that the noble Lord, Lord Hamilton, is relying on is about errors that are not of the massive scale that would undermine that proposition. Secondly, having just checked with my noble friend the Minister, she was not saying that it had to be 80% right. She was saying what the Amendment said—I think it was in the name of the noble Baroness, Lady Lawlor—and why it was not an appropriate or workable amendment.

I thank the noble and learned Lord for mentioning the importance of listening. I also thank him for the fact that, in dismissing every single Amendment that your Lordships have considered, he has reminded the House of the extent to which he is listening. I ask him, because he failed to address my question about filibustering, to confirm that our consideration of these amendments will not be presented as filibustering—a yes or no would suffice. Finally, I do not suffer from my condition; I live with it, despite obstacles that I encounter. I suffer from prejudice.

I apologise unreservedly for saying that the noble Lord, Lord Shinkwin, suffers from a condition. I completely accept the way in which he put it. I also sympathise with him and accept that he suffers from prejudice on a regular basis in relation to it. That is obviously a fate that he has suffered and I have sympathy for him in that respect. On the question of filibuster, my issue with the way in which noble Lords have been dealing with this is that we are now on the ninth day of Committee and we have got to Clause 2. My experience of this House is that it is able to focus on the things that—

My Lords—

Let me finish. We focus on the things that matter and we should not have taken nine days to get to Clause 2.

The noble and learned Lord keeps saying that we have only got to Clause 1 or Clause 2, but the reality is that over these nine days we have discussed multiple clauses of and schedules to the Bill. It is misleading to suggest that we have only done Clause 1 and a bit of Clause 2.

If that is the position, let us agree a process by which, having covered so many topics already, we can speed our process so that perhaps we can get through Committee in the next day or two.

The House has its procedures and generally stays by them. There is nothing going on during this Bill which is filibustering. It is analysis of the defects and the flaws in this dangerous Bill.

My Lords, after a very long and extensive debate, I thank all noble Lords who have contributed, particularly those who contributed with their own personal stories and descriptions of the way those experiences have affected people. However, I remind the Committee that we are legislating for the whole country, not for individual stories, and must look at eligibility carefully.

Frankly, the response from the noble and learned Lord is deeply disappointing. These amendments were tabled to make the boundaries of this Bill safer and to avoid opening the door to the wide creep that could happen. In terms of the six-month prognosis, there is an extensive body of evidence that there is no clinical truth in a six-month prognosis. I am delighted to be sitting next to my noble friend Lord Carter of Haslemere, who illustrates that beautifully, as does the noble Baroness, Lady Campbell of Surbiton, who was deemed to be terminally ill many decades ago.

I will try briefly to summarise. Frailty is not included, apparently, but geriatricians will say that frailty has a six-month prognosis, as does cancer. I would not want frailty included and am glad that it has been ruled out. However, people who are frail will also get other conditions. This group of amendments hit to the very issue of informed choice and patients making those choices. As was said, knowledge is power. The information that people need is that their diagnosis is accurate. They need information about the prognosis. It is very disappointing that the wealth of research evidence—systematic reviews, observation studies and so on—has shown that at six months the margin of error is huge.

My noble friend Lady Freeman is absolutely right regarding the way of communicating risk. You can say to people, “In 100 patients, so many are likely to be alive at six months”. The follow-up question that you will always get is, “Yes, but which group am I in?” That is the unknown. Their family will then push further—though not always—to know which group they are in. It is important in communicating information that we are honest and do not pretend that there is some clinical truth around “six months”. There is also, sadly, bias in the minds of doctors. I was concerned to hear from the Minister, if I heard it right, that a different six-month test would be applied by two different doctors—the co-ordinating doctor and the independent doctor—but I will go back to Hansard to look at that. The noble Lord, Lord Wolfson of Tredegar, pointed out the legal uncertainty around “reasonably be expected”. I caution that we should not ignore that.

It is disappointing that there is still a view that, somehow, six months is absolute, ignoring that there are patients who are expected to die not only in six months but possibly much sooner but who remain alive many years later. This is not about five months or seven months. This is about years—five years, 10 years, 15 years. I will not go into individual cases now, but I have a catalogue of them. The six months is not predictable. The attempt in these amendments was to make sure that the patient has better information on which to make probably the most difficult decision that they will ever make and the most irreversible—to end their life.

We have been trying to look at the problems in and improve the Bill. Rejection of all these amendments out of hand, without any invitation to look again at the wording or try to tighten it, is disappointing. With that, I beg leave to withdraw the Amendment at this stage.

Amendment 71 withdrawn.

Amendments 72 to 82 not moved.

Amendment 83 had been withdrawn from the Marshalled List.

Amendments 83A to 86 not moved.