Baroness Fraser of Craigmaddie:

Moved by Baroness Fraser of Craigmaddie

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.

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.

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.

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.

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”.

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.

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.

Noble Lords:

Oh!

I am the son of a general practitioner who, by the way, was not any old general practitioner. Even the noble Baroness, Lady Gerada, knows that the skills of general practitioners are not uniform and vary a good deal—as I say that I see that her surprise is falling, after what I said before. It is not the role of a general practitioner; it is the role of a specialist, and that specialist must be able to tell the patient their options for continuing with life: what palliative care is available and what caring systems, if they are unable to do certain things.

Is the noble Lord aware that virtually no specialism has 100% of those posts filled? In fact, in most cases in the UK, as can be checked using the recent figures from the Department of Health, many specialisms are down to about 30%, and many specialist areas in medicine are not covered by specialists at all.

My answer to that is that they jolly well should be. I do not see at all that that is a point against the argument I am making. I would say exactly what I am saying in relation to any specialism. It is a very simple point: do I want someone knowledgeable to explain what palliative care is, or is not, available to me, or do I want it explained by a generalist, who may be extremely good, such as the noble Baroness, Lady Gerada, or rather less good? I used to be a lay member of the General Medical Council, and I have disciplined very large numbers of doctors as a result of that experience. Having this specialist care is an absolutely essential requirement of what we are discussing.

My Lords, I thank the noble Lord for his “any old” comment; I am “any old” general practitioner. I will pick up a few issues. One is around the register being made publicly available. I absolutely would not want my name on a publicly available register as somebody providing the services of assisted dying—not because I would be ashamed but because of the hate mail that I would get and the distress that I would already have. That does not mean that I am against some form of register. Of course there can be a register, just as there is for doctors who do Section 12 approvals under the Mental Health Act, and for doctors who do all sorts of things, but to have a publicly available register goes one step too far.

The second issue is that we are—I am—already getting confused about the opt-in/opt-out; we saw that earlier. If this becomes law, all doctors must be trained in assisted dying, whatever that training involves; the royal colleges will determine that. Just as all doctors are trained in the termination of pregnancy, even though they may not deliver a termination of pregnancy—whether they opt out of delivering any services is up to them—all doctors must be competent in this area. I have been a GP for nearly 40 years and have worked with doctors who do not want to get engaged at all in the delivery or any aspect of the termination of pregnancy. Nevertheless, they are there to counsel their patients and direct them to a doctor who is available and willing.

The noble Baroness said that she does not want a publicly available register. Does she think that the patients of a general practitioner have the right to know whether that general practitioner is willing to provide assisted suicide services?

I have talked before about using the term “assisted suicide”. If this becomes available, it will be an unusual event: we are not talking about hundreds of patients wanting an assisted death. I suspect that, within each local area, a list will be available, held at the local health authority or wherever, of those doctors who are willing to participate. Noble Lords may have gone to the event at which the Australians said how it is done in their country: it is done by doctors of all professional groups. It is about the competence and capabilities, not the specialties, of those doctors who wish to pursue the training in order to become competent and capable of doing this. This is all feasible. We are not talking about me in my consulting room nipping off at lunchtime and administering assisted death. We are talking about a regulated system that will be properly managed with small numbers. I hope that is an answer.

My final point is about the use of drugs that are there to treat disease. I am sure that, with her expertise in palliative care, the noble Baroness, Lady Finlay, will know that, at the end of life we use drugs, sometimes at extraordinarily high doses, that we know will accelerate death.

I intervene on the noble Baroness’s comment about training. Everybody is, indeed, trained in abortion, for example, as they go through medical school, but by the time you are practising clinically and you are on a specialist register, you are no longer keeping up to date with those skills at all, and your revalidation depends on your keeping up to date with those skills, which is the benefit of having a specialist register.

If I might comment on the noble Baroness’s opening remarks about being worried about receiving hate mail, perhaps she might have some sympathy for those of us in palliative medicine who have been receiving a great deal of hate mail because we are known to be specialists in palliative medicine and because we have been flagging up concerns over the Bill. As for the numbers—

My Lords—

I ask the noble Baroness, Lady Finlay, when she is intervening, to keep it short, and people cannot intervene on people who are intervening.

Noble Lords are repeatedly intervening on the different points.

As for the numbers, the estimates, based on the evidence from other countries, suggest that the estimates in the impact assessment are very low, and that the demand for assisted suicide would be much higher, so it would come into the purview of a large number of clinicians; hence the need for specialisation.

My Lords, with some diffidence, I first put on the record that the Bill is abundantly clear that it is an opt-in system. Clause 31, “No obligation to provide assistance etc”, says:

“No person is under any duty to participate in the provision of assistance in accordance with this Act … No registered medical practitioner is under any duty to become … the coordinating doctor … or … the independent doctor”—

I will not read out the whole clause. I do not understand why it has been described by noble Lords in the way that the noble Baroness described, about not being able to opt out.

On the point of the register, we have heard over 13 days how important it is to listen to and consult medical practitioners at every stage of the Bill. The proposition in Amendment 189 is that the register should be put in the Bill. It is a privilege to listen to the expertise of our noble friend—as I call her—the noble Baroness, Lady Gerada, who has expressed some very profound and intimate reservations. But surely there will be provision in due course for the discussion of how to register people who are willing to opt in, and to do that with a full consultation of all the medical professions so that the concerns of the noble Lord, Lord Carlile, can be addressed. Surely, as with so much of the debate we are having, this is a matter of implementation. Let us get to the point where we can make a decision in principle, but let us make sure that in implementing it we have it right. That must be done, I think, with the full consultation of all the medical professionals.

My Lords, I will speak to my Amendment 383. I have so far limited my speeches on the Bill to a maximum of two to three minutes but on this one occasion I would like to take more time, because this may be the only opportunity I have to discuss how we can integrate some of the approaches that have been put forward; I refer to my noble friend Lady Hollins’s amendments on multiprofessional assessment up front and her Clause 5 stand part notice, and the amendments in the name of the noble Baroness, Lady Finlay, on parallel care between assisted dying and the continuing care process. I believe that what I have to say would vastly simplify things.

My amendment focuses on what professionals who are opted in to work in an assisted dying service would be expected to do, and how it differs from what is expected of those who are not opted in. Specifically, I will talk about two individuals with completely different roles: a professional who is part of the treating team and so is not opted in, and a professional who is opted in as part of the assisted dying service. I ask your Lordships just to suspend belief and bear with me while I explain.

I believe we are all agreed on a couple of points: first, that palliative care provision is inadequate; and, secondly, that services are often fragmented, with no one professional supporting someone at end of life and helping them access all the help that they need.

Let us walk through the patient journey, which I do not believe we have done in this House so far, and start with the person who has just been given—rightly or wrongly—a six-month prognosis. There are many things they may wish to discuss and seek help with: nursing care, access to financial support, pain management or just someone to explain again what the consultant said about their terminal illness. If they are lucky, they will have an excellent general practice team which can help with all these things. But, sadly, despite the wonderful primary care described by my noble friend Lady Gerada, many do not have such a practice. A friend’s husband died recently without being able to secure a single visit from anyone in his GP practice in the last nine months of his life.

In that scenario, what the patient needs is a co-ordinating professional: not one who is opted in to support their assisted death but rather to do what it says on the can and co-ordinate their care and access to essential help. In this case, the co-ordinating professional, who may be a nurse, doctor or other healthcare professional, would be part of the symptom management team within an ICB network. In fact, they may work across a number of GP practices.

It would be their job to organise the multiprofessional assessments and support from relevant professionals: nurses, palliative care specialists, social workers, OT services or maybe incontinence services. Ideally, they would have palliative care training to the level of a GP or a nurse with a special interest, and access to specialist palliative care consultants as needed. They would ensure that all the MDT assessments and information were written down or electronically available to the patient so that the patient is the master and owner of their information. That individual would not need to be opted in because it is not their job to discuss assisted death; their job is only to signpost the patient to someone who can.

Let us suppose that the patient decides that they want an assisted death. As I said before, they may talk to their GP, their priest, their partner or their children, but if they want concrete information about the practicalities, the best person to talk to would be someone who knows about it and fully understands the process—and, as my noble friend Lord Carlile said, somebody who is a specialist.

That is where the opted-in doctor comes in, who I will call—do not shout at me—the independent doctor, because they are independent of the treating team, but they are part of the specialised assisted death team and may cover the patient’s locality. I agree that, like any other individual carrying out a specialised role, they would have to be appropriately trained. Their job would then be to do what I set out in Amendment 383: first, to explain to the patient that this is not a treatment for their terminal illness but a personal choice; and, secondly, to ensure that they have fully understood the diagnosis, prognosis, treatment and palliative care options set out in the documents held by the patient. I say check understanding, not assess, for reasons that I will come to. Because all the information would be there in their patient’s hand, they would not need to go scurrying around, trying to get hold of patient records or treating consultants, except in rare circumstances where something is not clear. Then their key task—the role for which they would have been trained—would be to assess capacity, coercion, and all the other aspects which we have discussed, to ensure that the decision is a clear and settled one.

The person they may wish to talk to would be the co-ordinating professional—or, if the GP had taken that role, the GP—because that person would know the patient well, have information about family and personal circumstances, and would be able to alert them to possible coercion. My preference is that they would do this with another independent professional— I say a professional because that may be a nurse or a social worker—because, again, thinking of the patient, doing it together and not sequentially would be much less burdensome for the patient. Additionally, there are advantages when you do things together; for example, I would often look at the face of the patient while the speech therapist was talking to them, and the speech therapist would notice body language while I was talking to them, so you get more information working together than sequentially.

At that stage, there would have been sufficient multidisciplinary involvement for the panel to have only two members: a lawyer of whatever qualification and one other person, and then, once the panel has signed off, it would be the role of the independent doctor to support the assisted death, if and when the person decided to go ahead. Meanwhile, that marvellous co-ordinating professional, who is so far missing from the system, would continue to provide support until such a time arrived.

For the avoidance of doubt, let me explain why having an initial discussion doctor, a co-ordinating doctor and an independent doctor performing the duties set out in the Bill cannot work. First, if the initial discussion doctor is not the patient’s GP because that GP has opted out on conscientious grounds, the Bill does not give any other doctor the right to access the hospital records or speak to the treating clinician. That would introduce complex delays for the patient. As far as I can see, the initial discussion adds a heap of complications and no real benefit. That is why I supported the noble Baroness, Lady Hollins, on the clause stand part proposal.

Secondly, and more importantly, despite the assurance that the noble and learned Lord, Lord Falconer, gave last week that three different doctors would confirm the six-month prognosis, the reality is that none of them can do that. I acknowledge that the noble and learned Lord knows more about the law than I could learn in 20 lifetimes—but perhaps a bit less about medicine. If the oncology team has examined the patient’s scans and has determined that the tumour is no longer responding to the recent changes in chemotherapy and no options are left, no other doctor examining the patient with their bare hands will be able to confirm or refute that. If the cardiologist has managed a patient with worsening heart failure over two years and sees that the symptoms are getting worse despite maximum doses of treatment, no other doctor will have a better feel for that patient’s trajectory. Unless these three doctors are trained in palliative care, none of them will be able to discuss the patient’s palliative care options.

The best approach is for opted-out professionals—or those who are not opted in—who are involved in the patient’s care to advise on prognosis, treatment options and palliative care, and for the opted-in professional to check that the patient has understood all this, to assess capacity and coercion and to deal with matters related to assisted death. By defining the roles and responsibilities as I have described, the process would involve a better use of staff time and, more importantly, be more supportive and less onerous for the patient. At least part of the cost of co-ordinating professionals is already covered within the financial allocation of the Bill. Any additional cost savings generated by simplifying the process, while also making it safer and more patient-centred, could be used to enhance palliative care.

To cheer your Lordships up, I have now also disposed of 37 amendments forming the entirety of group 5.

My Lords, I thank the noble Baroness, Lady Cass—that was totally compelling. We will all have to read it and reread it, but it gave us a real sense of what it would be like. Sometimes, we are talking in the abstract.

In a more concrete sense, I think of this group of amendments as the workers’ rights group. We must take seriously what is being asked of all the workers involved. If a Bill of this kind were to be passed, all sorts of workers associated with health and social care would be expected to deliver it. What happens if that goes against their conscience? This is why I have added my name to Amendments 268 and 617 in the name of the noble Baroness, Lady Finlay of Llandaff, which seek to make opt-in for doctors explicit in the Bill. It is important to extend any conscience protections to a wider range of workers who might not want to be involved in assisting in the death of others.

I wished to add my name, but there was not room for me, to Amendment 673 in the name of the noble Baroness, Lady Fraser of Craigmaddie. It is very important that all workers be free to refuse to participate without penalty. I have also tabled my own Amendment 657 and thank the noble Baronesses, Lady Smith of Newnham and Lady Eaton, for supporting it. It concerns proposing that the provision of assisting in someone’s death is not regarded as a medical treatment. We have heard excellent explanations of why, existentially, it should not be a medical treatment, and there are a range of ethical reasons for that. However, for the purposes of this group, the amendment is relevant because, if assisted dying is a medical treatment, this could put practical and regulatory pressure on doctors in particular in terms of their duties.

The aim of this group is quite straightforward, particularly in relation to opt-in: to ensure that no medical professional or related staff are forced to participate in assisted dying or undergo training in assisted dying against their will. I know that supporters of the Bill are keen fans of autonomy, so this group of amendments is indispensable. Let us make this an autonomous, positive choice for those workers who are happy to take part in the process. The noble Baroness, Lady Andrews, has reassured us that, under the Bill, there will be no pressure to participate. However, she will know that in many workplaces, unless opt-in is made explicit, workers’ rights are not always given full satisfaction.

However, as it happens, the noble and learned Lord, Lord Falconer, thinks that this opt-in should be in the Bill. He emailed us in January to tell us that, following extensive conversations with the BMA, “I believe that explicitly including the words ‘opt-in’ on the face of the Bill would provide greater reassurance to medical practitioners”. I agree. I was a bit disappointed that those amendments were not tabled more quickly, but they have now emerged. I am glad to see that there is an explicit opt-in provision, but it is too narrow and too exclusive, being confined to a co-ordinating doctor, an independent doctor and so on, as explained so well by the noble Baroness, Lady Finlay. This leaves out significant parts of the wider medical workforce. I am worried that GPs, nurses and other front-line staff could still be mandated to participate in either assistance or training regardless of their conscientious objection.

These concerns are not only about narrowly focusing on opting only for the co-ordinating or independent doctor. We must recognise the dangers of considering opt-in only in relation to medical professionals. Amendment 673, tabled by the noble Baroness, Lady Fraser, is a reminder not to leave out the plethora of staff who might well be asked to play a secondary role in assisted dying, such as those who work in care homes or prisons. What about the member of staff, perhaps a porter, who is asked to escort a patient to a room where an assisted death will take place?

For goodness’ sake.

“For goodness’ sake”—well, a bit of empathy might be helpful.

Our main focus is understandably on doctors, even nurses, but we must be careful not to assume that those with medical degrees—the professionals—are entitled to a greater respect for their consciences than other relevant workers: like porters.

I have previously spoken about my qualms regarding the care sector being sidelined in discussions about the Bill. Care England has complained that it has been under-consulted, not least on “opt-out, opt-in”. This matters in terms of the unintended consequences of the Bill. In Care England’s survey of its members, 24% of providers said that staffing would be very difficult because of the likelihood of conscientious objection, speculating that if forced to comply, care staff will walk out. Imagine what a tragic unintended consequence that would be. Only 14% reported that staff would willingly participate in the procedure; 34% reported that their staff would not be willing to participate at all. On what constitutes participation, the Royal College of Nursing has reminded us in written evidence to the other place of the need to consider administrative work:

“protection should also extend to indirect involvement, such as administrative tasks or referrals, to ensure all” professionals

“are supported in line with their personal and professional values”.

I now want to reflect briefly on the issue of training, which is so important in relation to these amendments. Practically everyone involved in providing medical or care services, particularly medical services, has to do mandatory training units. Obviously, they are studying at university, but there is, as we have heard, revalidation, CPD and so on. If a robust opt-in conscience Clause does not cover all such training, might those who try to opt out get a career-limiting black mark against their name? Might those forced to do such training fail if they do not endorse assisted dying as a medical treatment of merit or receive professional sanctions if they give the wrong answers? I am looking for a guarantee from the noble and learned Lord that no workers will face legal or professional repercussions, including indirect penalties of discrimination, for declining to participate in either training or the procedure.

On my Amendment 657, despite the insistence when we discussed Wales last week that this is a change in criminal law, not a health Bill, the necessity to amend the constitution of the NHS and the huge changing expectation of medical ethics—

Does the noble Baroness not find it peculiar that people who are very keen on employment rights in every other circumstance are not keen on employment rights in these circumstances and put their views on assisted suicide ahead of the right of very ordinary workers to say, “I don’t want to be part of it”?

Irony noted. Anyway, it is—

The noble Baroness is making a point that contradicts the words of the Bill, as the noble Baroness, Lady Andrews, has explained. Clause 31(1) says in unambiguous terms:

“No person is under any duty to participate in the provision of assistance in accordance with this Act”.

We all agree with that. We all agree that employees, whatever their status, should be fully protected.

Royal colleges and trade unions want better guarantees. When we discussed the Employment Rights Bill—

I am not sure what further guarantees the noble Baroness and the noble Lord have in mind, because they will know from the Bill that Schedule 3 amends the Employment Rights Act 1996. It incorporates that anybody who is being prejudiced against because they will not participate in terminal illness matters is given every single right under the Employment Rights Act. First, the idea that they are not being given the same rights as everybody else is wrong and, secondly, I am not quite sure what point the noble Baroness is making when she says that there should be more rights.

I sat for many hours through the debates on the Employment Rights Bill. When I said that there was a plethora of rights and that we were overdoing it, I was treated with some contempt.

I have to finish. The fear is that once assisted dying is normalised as a medical treatment, health professionals would be obliged to offer it as a medical treatment or, even worse, be under some obligation to explain this therapeutic option as part of their duty of care for eligible patients. They could be held negligent for not offering this treatment against their conscience. That would seem to be the implication of case law in the Montgomery ruling, which ruled that all reasonable therapeutic options needed to be presented to and discussed with patients. The worry here is that civil liability protections do not cover—

Can the noble Baroness bring her remarks to an end, as she is well over the 10 minutes?

This is meant to be a debate. I have taken a lot of Opposition points. Let me finish. The worry is that civil liability protections do not cover where a duty is owed to the patients. How can doctors who do not wish to offer or discuss assisted dying be sure that they do not face liability for failing to comply with their alleged duty to raise treatments?

When I have raised such concerns with supporters of the Bill, I have been reassured that now that we have passed the workers’ rights Bill—there are parts in this Bill, too—there will be lots of protections. They point out that, if there are any problems, staff can always use employment tribunals if they feel that they have been unfairly treated, although, as I say, trade unions are quite keen on an opt-in. But as those of us who sat through the hours and hours of deliberations on the Employment Rights Bill will know, employment tribunals have huge, years-long waiting lists. Also, such tribunals put the burden on the employee to demonstrate and prove detrimental treatment, which seems completely unfair.

It seems pertinent to note, as mentioned by the noble Baroness, Lady Fraser, that as the remedy in employment cases is damages not rehiring, this could lead to driving health and care workers out of the understaffed healthcare sector—not a good result. To finish, as the noble and learned Lord is a member of the party that rightly boasts of its commitment to workplace fairness and workers’ rights, I am simply hoping that he will be sympathetic to those amendments that put workers’ rights—guaranteed—centre stage in relation to assisted dying. It is not too much to ask.

My Lords, I am glad to follow the noble Baroness, Lady Fox of Buckley, because I added my signature to Amendment 673 in the name of the noble Baroness, Lady Fraser, as did the noble Lords, Lord Carlile and Lord Hunt of Kings Heath.

Allowing for some reticence on the necessity of this amendment, I just wish to make two points. First, the Bill allows an opt-out for registered medical practitioners: a health professional, a social care professional or a registered pharmacist. Administrative tasks are specifically not excluded. The Bill defines health professionals as medical practitioners, pharmacists and nurses, but it does not define care professionals. This is a lacuna, which will cause problems should this or any Bill on this basis pass your Lordships’ House.

Secondly, matters of acute conscience are not restricted to the immediate preparation of a lethal dosage or the medical oversight of the procedure. There will be, for reasons of practicality, not least of cost, pressure on all sorts of ancillary staff, as anyone in a health and care setting will attest. If they are co-opted, either directly or indirectly, into what becomes the final procedure, when the conscience of such an ancillary participant tells them that they should have nothing to do with such a procedure, is it right that they should face sanction or inhibition of their careers, or even dismissal? I suggest not and I hope that the House will support this amendment.

My Lords, I tabled Amendments 668 and 670 and put my name to eight other amendments. I am supportive of other amendments, which I will explain. We are talking about how to protect the conscientious objections of doctors and other healthcare practitioners, as well as others, through an opt-in system, which would allow doctors and others who are willing to engage in assisted suicide to register their position and thereby provide a framework by which their rights are clear and practitioners are not subject to organisational pressure to engage with elements of the process or indeed the whole process.

We need to remember that medical practitioners need certainty about their legal and ethical obligations, especially when they are in a situation in which they may find themselves dealing with matters of life and death. In addition to this, many of those who work in healthcare have religious beliefs, which would preclude their engagement in facilitating others to kill themselves. Catholics, some other Christians and Muslims would be precluded from participation, yet may be prejudiced in their employment opportunities and prospects by this inability to engage. It is important, therefore, that this factor is considered and any such consideration should surely lead inevitably to the acceptance that the only way this can actually work is for people to opt in rather than having to opt out.

To that end, I have tabled Amendment 668, which would provide for a comprehensive conscience protection, allowing any person, not just a registered medical practitioner, to opt out of any activity that may facilitate assisted suicide, including any ancillary functions. Amendment 670 seeks to define what might be said to comprise assistance under the Bill, referring to

“any aspect of assisted dying under or in connection with the provisions of this Act, including but not limited to … administrative or managerial tasks, such as the allocation of” duties to carry out these tasks; supervision of those to whom tasks are allocated; and

“accompanying and monitoring of a patient as they receive or after they have received the approved substance”,

the lethal drug. I also put my name to Amendment 665, which states:

“No health or social care organisation, team or professional is required or expected to participate in any part of the process of a person’s request for an assisted death”.

I added my name to Amendment 660, which would provide that

“involvement in assistance is wider than only the direct administration of lethal drugs”.

This would clarify the nature of what can be considered “assistance” under the Act.

I added my name to Amendment 679, which is similar but more specific and states:

“No company, charity, or other organisation is under any duty to participate in, facilitate, or permit on its premises the provision of assistance in accordance with this Act … No company, charity, or other organisation shall be required, as a condition of receiving funding or any other benefit from any public body, to participate in, facilitate, or permit on its premises the provision of assistance in accordance with this Act”.

This is fundamentally important to ensure that hospices, care homes, nursing homes and other similar organisations do not have to engage at all with the process of assisted suicide. It would also, I think, include prisons.

I declare my interest as a trustee of a hospice. There is a considerable fear that not providing explicitly to protect hospices in this way could lead to all sorts of difficulties. There is currently an expectation that hospices will provide care and support of many kinds and that they will not be involved in assisting people to kill themselves. To provide otherwise would change the whole ethos and purpose of a hospice.

The amendment would ensure that no financial consequences could ensue from a hospice maintaining its traditional ethos and operations and not engaging with assisted suicide. Amendment 770 would not provide that additional protection. The importance of this cannot be overestimated. Failure to protect hospices in this way may very well lead to the closure of hospices at a time when there is a huge shortage of expert palliative care, as we have heard so often.

These amendments are all tabled to ensure absolute clarity for professionals and patients and to further define the nature of the protections that professionals will have under the law should they not wish to become involved with assisted suicide. Very significant deficiencies would be created. Many potential legal challenges could be avoided if there was absolute clarity about those professionals who wish to engage with assisted suicide and equal clarity that administrative and all other NHS staff cannot be required to engage with any aspect of assisted suicide.

As has been said, the Royal College of Nursing has stated that nursing staff should have to actively choose to be involved and that it is “absolutely clear” that nurses have the right to say:

“I want nothing to do with this”.

That is the language of the Royal College.

The solution lies in the establishment of publicly available registers of professionals who do wish to be involved. I support the establishment of an opt- in system and have therefore put my name to Amendment 189, which would require the Secretary of State to establish and provide for the updating of a public register of registered medical professionals, supported by the BMA and the Royal College of GPs, who are willing and able to “conduct a preliminary discussion” under Clause 5(3).

Amendment 268 would provide that only doctors who have specifically opted in can become co-ordinating doctors, and that

“only those who positively choose to do so” would be able to

“have the training and participate”.

Amendment 359 refers to “the independent doctor” in Clause 8, who would also have had to “explicitly” opt in. Amendment 617 would amend Clause 26(2) to provide that, where a co-ordinating doctor authorises another doctor to carry out the duties and provide the lethal drugs to enable a person to end their own life, that doctor must have expressly opted in to do so.

I support Amendment 680, which would provide for a specialist register for clinical psychologists who want to participate, to be operated by the Health and Care Professions Council, and similarly Amendment 681A, which would require a specialist register for assisted dying for pharmacists to be kept by the General Pharmaceutical Council, providing for those who are not registered medical practitioners, et cetera.

On training, the noble and learned Lord, Lord Falconer, has limited the statutory opt-in language to the bespoke training for co-ordinating doctors and independent doctors. His amendments do not provide the system-wide opt-in protection that the royal colleges have requested. Consequently, doctors, GPs who do not wish to be co-ordinating doctors or independent doctors, nurses and other front-line staff may be required to participate in basic or tier 1 training and participate in peripheral aspects of the process.

It is important to say that it would not be cost effective to train every member of the National Health Service in the provision of assisted suicide if they are not going to engage with it. We always have to remember that training has to be repeated—I will not give way, the noble Baroness can come in later—and is not a one-off. There are huge costs and extractions of staff from the delivery of services when they have to do training.

If the noble and learned Lord is opposed to these amendments, what is his response to the arguments of the BMA and the RCGP that the Bill does not provide sufficient protections for practitioners? Does he think that they are wrong? If participation is opt-out rather than opt-in, it will become expected. I also support Amendment 190, which would provide that a doctor is able to respond only to a specific request from a patient.

Significant issues would arise were assisted suicide to be regarded as a medical treatment. For example, in some Canadian provinces, nurses must stay with the patient through all aspects of care, except the direct administration of the lethal substance. A lot of them have to resign for reasons of conscience. We saw this here in the abortion context. To resolve this problem, Amendment 657 would provide that:

“The provision of assistance under this Act is not to be regarded as a medical treatment”.

If this amendment is accepted, doctors will at least be sure that they will not be failing to comply with their duty to raise treatments in discussion with patients and that no liability could arise from their not doing so. I commend these provisions to the House.

On a point of clarification, we have heard it said several times that the Royal College of GPs is in favour of a publicly available register. To the best of my knowledge, and having just checked, the Royal College of GPs is not in favour of a publicly available register. It is in favour of opt-in, but not of a publicly available register.

I said that there should be a publicly available register and that the Royal College of GPs is in favour of an opt-in.

On a point of clarity, having sat and listened and wondered whether I should intervene, the noble Baroness mentioned a number of faiths and the fact that people from those faiths do not believe in assisted dying. But people from those faiths also do not believe in childbirth before marriage. Is there any evidence to suggest that people are opting out of midwifery because of that reason? Or is it just your opinion that people from those faiths may not want to take part? I am from one of those faiths and although, as noble Lords may have heard, assisted dying might not be for me, I am not here to stop others. I am sure that others in medical professions might also share that view.

I am not sure of the logic of what the noble Lord is saying. I apologise to the House; I am struggling slightly. We are talking about assisted dying here and nothing else. I am saying that there has to be a conscience Clause: that people of faith—I do not know how many faiths are involved—must have the right not to go against their conscience. That is one of the human rights that we absolutely must have.

My Lords, I am broadly supportive of tightening the issue of ensuring that people’s conscience and beliefs are recognised and I support people who are prepared to work with patients who are, I remind the House, terminally ill adults wanting an end-of-life story that is different from full, extensive palliative care. I am completely supportive, as is the Royal College of Nursing, of full palliative care being what the Majority of people will choose. However, there is a small proportion of people who would choose the principles of the Bill because of the nature of their particular illness, or personal choice.

I have talked before about all healthcare professionals’ responsibility to try to talk with patients about the choices that are available to them. The thing that has upset me most this morning is thinking about patients whom I have worked with and done everything, together with the multidisciplinary team, to keep alive who have taken their own lives because of severe enduring mental illness. I wish that we could stop referring to this as an assisted suicide Bill. It is terribly hard on people who have relatives and friends who have died through their own hand, usually in great distress. The whole purpose of the Bill we are talking about today is to reduce stress and distress for the small proportion of people who want this as an option.

I assume that the noble Baroness is aware that one of the reasons why we need to be absolutely specific about what we are doing is that 42% of people think assisted dying is palliative care. We need to make clear what we are talking about.

I accept that. There was a helpful article in one of the newspapers this week talking about using the term “assisted death” rather than “assisted suicide”. I am pleased that I have had the opportunity to say it in the Chamber.

My Lords, I congratulate my noble friend Lady Cass on her excellent speech. I am going to speak to my Amendments 667A, 680, 681A and 848C which seek to ensure that any healthcare professional who wishes to participate in assisted dying under this Bill may do so only by formally and voluntarily choosing and training to work in this specialist area— in other words, by opting in—and being entered on a register for assisted dying held by their regulatory body.

I acknowledge that, under the Bill, no person is under any duty to participate. This is not enough. At the individual level, opting in requires an active and deliberate decision, whereas opting out relies on a preset default. The two are not ethically equivalent, despite appearing similar. An opt-out system assumes that participation is expected unless an individual takes active steps to refuse, which is bureaucratically burdensome. In the context of assisted dying, making participation the default risks signalling that it is an endorsed routine practice. Over time, this may shift social norms and create implicit pressure on those involved to participate. Because of time constraints, I am going to focus my remarks on Amendments 667A and 848C, which deal with doctors, but the principles apply to other healthcare professionals, including pharmacists and psychologists.

Some noble Lords have focused on the matter of conscience. This is important, but I suggest that it is not the only professional consideration here. If the Bill passes, assisting a person to end their life must not be regarded as part of every doctor’s ordinary professional role. The Royal College of General Practitioners has expressed concerns about the Bill as drafted and has emphasised that any assisted dying service should be separate from core general practice in both structure and resourcing. The college made clear that participation should be strictly opt-in, with no expectation placed on GPs or other healthcare professionals to take part. One reason for its position is to ensure that core general practice and palliative care are not deprioritised and that no additional demands are placed on already overstretched services.

My amendments seek to ensure that, if Parliament decides that doctors will be involved in implementing the Bill, doctors must choose to work in the service, just as they choose other areas of medicine in which they wish to practise. It follows that they must be adequately trained and registered to practise. Opt-out systems are often justified on the basis that they increase participation. They work by setting a default position where individuals are included unless they take active steps to withdraw. In practice, many people remain with that default. It reflects a well established behavioural tendency that people are more likely to stick with the pre-set option than to change it, even when there are alternatives. As a result, uptake increases not because everyone has actively chosen to participate but because fewer people opt out than would have opted in. Making participation the default may increase uptake because it is expected.

In centralised healthcare systems such as the NHS, declining participation may carry subtle penalties. I will illustrate this with the example of the Mental Health Act. In principle, a clinician may object to the compulsory detention or treatment of individuals who retain decision-making capacity about their care. However, in practice, such a position may carry consequences for training and career progression. The Mental Health Act in England and Wales sets out the legal framework for compulsory detention but does not impose a duty on individual doctors to participate. For detention and treatment, a medical recommendation is required from an approved doctor. The approval framework defines which doctors are eligible to give such recommendations but does not oblige them to do so. In strict legal terms, there is no statutory duty compelling any psychiatrist to work within the Mental Health Act framework. Instead, the Act requires that certain professionals are involved if detention occurs, but it does not compel any specific individual to act. Effectively, participation operates as an opt-in system, as psychiatrists must apply for and maintain approval status to undertake this work.

However, there is a clear distinction between legal obligation and professional and contractual expectations. Within the NHS, many consultant psychiatrist roles include Mental Health Act work in the job plan, and those taking up such posts are expected to hold relevant approval. If a psychiatrist accepts such a role, participation then becomes a contractual duty. Therefore, the system is not coercive in a legal sense, but it becomes structurally coercive in a professional sense. Without any statutory compulsion, the training pathway and the labour market strongly shape participation. This is within an opt-in system, and it raises the question of how much stronger these pressures may become under the opt-out model proposed in the Bill. I accept that it has potentially been slightly modified by the noble and learned Lord’s Amendment, but I do not think it goes far enough.

My amendments in this group address the regulation of doctors who choose to participate. Just as every recognised medical specialty is regulated by the GMC, I believe assisted dying should be treated no differently. It is a completely new area of practice, requiring its own defined set of skills, competencies and training standards that fall outside the remit of any existing specialty. Accordingly, my amendments and the amendment tabled by the noble Baroness, Lady Fraser, propose the creation of a specialist register for assisted death, which would be publicly available as with other specialty registers. Participating doctors would be required to hold both their primary specialty registration and this additional registration.

Dual specialty registration is well established within NHS practice. It reflects a recognised training model in which clinicians develop advanced expertise across complementary domains to deliver specific and often more complex interventions. Dual accreditation is typically used where clinical practice spans more than one domain, as is the case with assisted dying, where unmet palliative care needs must be addressed before death is considered. Therefore, this approach is entirely consistent with existing professional standards, and no clinician should take part in any aspect of the assisted dying process unless they are appropriately registered and regulated. Requiring clinicians to specialise further reinforces that participation is genuinely opt-in. It would be difficult to argue that an individual was compelled to undertake specific training and accreditation. This would provide an additional safeguard that involvement reflects a clear and deliberate professional choice.

Any involvement should be strictly opt-in and sit outside routine professional responsibility. All those who chose to participate should be registered with their respective regulatory bodies as providers of assisted death. This supports a stand-alone, separately regulated system, with participation limited to those who have actively chosen to be involved, have received appropriate training and are properly regulated. Finally, personally, I hope that Parliament does not require doctors to participate in any way, and I support the amendments to that effect as well.

My Lords, I ask the noble Baroness, Lady Hollins, why she has identified this small group of specialists, and only them. Does she accept that the causes of death are very wide, and that many different specialists may have been involved in the treatment of a patient who wishes to bring on their death as soon as possible because of their huge suffering? So why would we confine this form of treatment, or the provision of this option, for patients who are close to death to only the small groups she has identified here? Why would general practitioners, neurologists or gastroenterologists not be included?

This Amendment seems to have been tabled to narrow the number of medical practitioners who are able to support dying people in the way that those dying people wish because they do not want to go on living any longer with the torment they are suffering. I hope the noble Baroness will think again about this amendment, which seems unbelievably restrictive as far as the contribution of the medical profession is concerned.

The noble Baroness may have misunderstood. I spoke about dual accreditation, which could apply to any doctor from any specialty who wished to obtain the necessary training and accreditation to be able to contribute on this issue.

My Lords, I have added my name to Amendments 359, 660, 665 and 681, as I believe they would ensure the widest possible protection for those people who, due to issues of conscience, are not able to participate in assisted dying. I specifically use “not able”, which is a different concept from that of autonomy and choice that underlies the Bill. “Not able” in matters of conscience is something we have not really considered in our law for a long time, but, if one casts one’s mind to conscientious objection to being involved in war, it is an important part of people’s rights to be able to say, “I am not able to participate in that”. There was some comment about the role of the porter. Everyone has that right of conscience—not choice, but conscience. One only has to watch “24 Hours in A&E” to see that that brief encounter with the porter, as an example, is such an important part of healthcare. We need to remember that everyone has freedom of conscience, not choice.

Of course, if the Bill explicitly provided the opt-in system, as my noble friend Lady Fraser mentioned, then the protections in these amendments would not be needed. I am afraid that I address the noble and learned Lord again about pre-legislative scrutiny. I admire the confidence with which he assures us, Bill in hand, that this is all sorted out; but until I am satisfied that the royal colleges, representing the people who are going to deliver this, are satisfied that the Bill is that clear, I am afraid these amendments need to be considered.

There are other jurisdictions where there are tighter protections for practitioners. In Oregon, even, the medical practitioner does not have to participate, document requests or provide information, but the language in the Bill is just “unwilling or unable”, which is a wider definition.

The noble Baroness, Lady O’Loan, has mentioned the case from Scotland, where they considered the conscientious objection Clause in the abortion Bill, which was found to apply only to direct participation, not to the ancillary services these various amendments are trying to secure for individuals and organisations. I anticipate that there will be GP surgeries that will opt out because patients will want to know that whoever they get at the surgery does not support this.

The amendments would cover the situations I have been concerned about: the Secretary of State, the commissioners of services for assisted dying—if this is going to be an NHS service—and civil servants. I would be grateful if the Minister could confirm to us, either today or on our final day of Committee as currently scheduled, that the civil servants in all government departments who have had to work on the Bill have not been pressurised or required to work on it. The Bill may not yet be law, but it is good employment practice not to put any pressure on staff—noble Lords have given other examples—to make sure that they participate.

On the point made by the noble Baroness, Lady Watkins, coroners still record verdicts of suicide. The Government still have a suicide prevention strategy. The Bill before us is amending the criminal law, called the Suicide Act 1961. I agree that we should act with compassion, but we have to be legally correct about what we are doing. There is potentially a wider issue there for the Government to take away if they want to change the name of legislation and the name of the strategy, but that is not for today.

My Lords, it has been a privilege to listen and learn and to try to clarify my mind regarding the various amendments. I wish that some of our critics in the press had been here this morning, because the amendments today go to the very heart of the Bill and we have had the opportunity of hearing from people on different sides of real expertise, including the noble Baronesses, Lady Gerada, Lady Hollins, Lady O’Loan and Lady Finlay. It has been a huge privilege for those of us who are not medical experts to be able to clarify our minds on this issue.

I hope the noble and learned Lord will be able to address the points made by the noble Baroness, Lady Cass. She made points I had not heard before, and I do not know whether he had. She claimed that the Bill as drafted is not actually workable, and I very much hope he will be able to address that point.

I shall say three things. First, the noble Baroness, Lady Andrews, suggested that the things we are talking about today should be left to the medical professions to regulate. However, what we have been debating today—whether we should have a public register or whether we should simply have an opt-out Clause, which everyone agrees with, of course—is not just simply a detailed regulation, with due respect; it goes to the heart of the Bill and Parliament has to make its mind up about it.

Secondly, towards the end of her speech, the noble Baroness, Lady Gerada, who we listened to with great respect, mentioned the well-known fact that a number of doctors, when patients come to the end of their life, give very large doses of painkiller, which has the effect of shortening the patient’s life. From an ethical point of view, there is a fundamental difference, depending on whether one is a utilitarian or a consequentialist on the one hand, or whether one believes that certain things are fundamentally wrong. This has been mentioned two or three times in the debates over recent years. For the ethical tradition that is this country’s base, particularly for the medical profession, there is a fundamental difference between administering a poison to kill someone and administering a large dose of painkilling drugs that has the foreseen effect of also shortening their lives, which from a moral point of view is entirely legitimate.

Lastly, on the question of language—this has been mentioned before—I say to the noble Baroness, Lady Watkins, that many of us do not like to confuse what we are debating with assisted dying. However, we also respect what the noble Baroness says—that the language of suicide is unpleasant and really not appropriate. Personally, I like to use language that is as neutral as possible and talk about people taking their own life, which seems to me as neutral a language as we can get on this.

My Lords, I would like to introduce my Amendment 664. It is designed to ensure not only that no medical professional is obliged to participate in such training but that, in order to do so, the medical professional must give written consent. Professional training aims to show students not only how to apply their academic knowledge in practice but how to approach their role in their chosen profession. The second element has two levels. There is the day-to-day one, as summed up by the Cambridge clinical course under the labels “communication skills” and “patient management”: how, for instance, to deal with a patient who insists, contrary to the evidence, that they have cancer?

However, there is a second, higher level—an induction into the ethos of the profession. This level is of vital importance in training medical professionals, because they are dealing with human beings. Throughout this Committee, one of the most powerful messages has been that each individual is different and that one of the most precious skills of doctors, nurses and other medical professionals is to be sensitive to those differences when applying medical science in a particular case. There is no simple blueprint or checklist to guide them. Rather, they need to be guided by the ethos of the profession into which their training has induced them.

That is a strong reason why this amendment seeks to ensure that the training of health professionals related to assisted suicide needs explicit consent from participants. It implies that training for purposes of the Bill is treated as a separate activity within the course as a whole, requiring consent from the participants, and that there is neither compulsion nor pressure to participate. If assisting suicide or assisting death under this Bill is presented in training as just another element among others of what health professionals do, the ethos will be drastically changed. Instead of one based on supporting the ill, the frail and the elderly, of seeing in every life one worth living and improving health, a new ethos will grow. At first, it will be one of moral equivalence between encouragement and help to live and encouragement and help to die—one in which there is no ethical basis for the profession but everything depends on the apparent preferences of the patient. But soon, I fear, it will develop into something more sinister—an ethos in which medical professionals are servants of the state, deciding for the common good, as they believe, who is to live and who is to die.

A second reason for this amendment is the freedom of conscience of medical and other healthcare professionals.

Will the noble Baroness give way?

I am just finishing. I will not take interventions.

A second reason for the Amendment, which would require written opt-in for training for medical and other health and care professionals, is that to many—not just in this House but in society as a whole—assisting suicide is deeply immoral and it would be obnoxious to have to train in practising it.

May I check that I have understood the noble Baroness correctly? When she said that the patient’s preference should not prevail if they wanted an assisted death but that the doctor should decide, does she mean that the doctor knows best? Is that what she meant?

I thank the noble Baroness for this. I am talking about medical professionals, and I am also talking about the moral equivalence. Can she remind me where I exactly said that?

My Lords, I will very briefly speak to Amendment 657 in the name of the noble Baroness, Lady Fox, to which I have added my name, to support the amendments in the name of my noble friend Lady Finlay— Amendments 268, 359, 617—and the amendment in the name of the noble Baroness, Lady Cass. In particular, I think that the amendment from the noble Baroness, Lady Cass, in many ways picks up the issue highlighted in Amendment 657 —to make it explicit that an assisted death should not be seen as a form of treatment. I think that was implicit in what the noble and right reverend Lord, Lord Harries, said.

There is a difference between taking somebody off life support, giving them significant doses of pain relief at the end of life and administering a dose of medicine that it intended to be fatal. They are all slightly different. The wording in proposed new sub-paragraph (ii) in Amendment 383 from the noble Baroness, Lady Cass, perhaps would also help us find a way across the aisles to deal with the concerns the noble Baroness, Lady Watkins, raised; that is, that those who are opposed to assisted dying tend to say “assisted suicide” and many who are in favour say “assisted dying”. The wording that the noble Baroness, Lady Cass, has used is that it is

“a personal choice to end their life”.

That might be a way in which we could at least think about finding a way forward.

I have a few questions for the Minister and the noble and learned Lord, the sponsor of the Bill. In intervening on the noble Baroness, Lady Fox, the noble and learned Lord, Lord Falconer, rightly said that Clause 31 already says there is:

“No obligation to provide assistance etc”— that picks up on the amendments tabled by the noble Baroness, Lady O’Loan, as well—and that:

“No person is under any duty to participate in the provision of assistance”.

I would be interested to understand, in these circumstances, what “assistance” should be taken to mean. That follows from the points made by the noble Baroness, Lady Berridge, who asked about the roles of politicians and civil servants. Most of the debate has been about what the medical profession and health workers, maybe even porters, are asked to do.

However, Clause 4 requires the Prime Minister to appoint a voluntary assisted dying commissioner and many of the clauses give sweeping powers to the Secretary of State. Does that mean that the Prime Minister and the Secretary of State—presumably the Secretary of State for Health but possibly also the Justice Secretary and junior Ministers—would be expected to engage with this legislation if passed and that there would not be a conscience clause for politicians and civil servants? That would seem to go against the norms of saying that there can be conscience clauses. It would be unfortunate—I say this as a practising Catholic—if Catholics and others of faith or people for whatever reason—it may not be religious—felt that they could not support an assisted dying service.

My Lords, I just want to respond to the noble Baroness, Lady Berridge, on the importance of conscientious objection. The strength of Clause 31 and Schedule 3 is that they are not confined to those who can show that they have a conscientious objection to assisted suicide. Any doctor or any other person who does not wish to assist has a legal right not to do so, for any reason—indeed, they do not have to give a reason. That is the broadest possible protection. Let us not forget that it is broader than the protection which Parliament included in the Abortion Act 1967. Under Section 4 of that Act, the doctor or other person who does not wish to participate must not only have a “conscientious objection”; they must be able to prove that they have a conscientious objection if there is any issue about it. The Bill from the noble and learned Lord, Lord Falconer, includes the broadest possible protection.

My reaction to many of these amendments is the reaction I have had over 13 days to the amendments to this Bill which we have debated. Whatever their intention—I make no allegations about intention—their effect will inevitably be, unnecessarily, to impede the ability of persons who are dying to receive the assistance that they so desperately want.

My Lords, I am grateful for the clarity, but I draw attention to the fact that this is a position that could have been put, and still could be put, in a meeting with the various royal colleges to assure them that the Bill does what the noble and learned Lord and the noble Lord, Lord Pannick, say it does. We are faced with a situation where the practitioners are not satisfied and do not have the confidence that the noble Lord alludes to: that the Bill will give them the protection that they want.

Of course, some practitioners do not have confidence. We are not going to get to any conclusion on the Bill that will enable Parliament to implement the view of the vast Majority of people in this country.

My Lords, can we get to the Front Benches?

Noble Lords:

Hear, hear!

My Lords, I accept the spirit of the noble and learned Baroness, Lady Butler-Sloss, so I shall be very brief. I support the noble Baroness, Lady Fraser of Craigmaddie, in her Amendment on the register. I understand that one of the things that we are trying to do in this group is to protect professionals. Therefore, many of us will be very sympathetic to what the noble Baroness, Lady Gerada, said about receiving hate mail if there were a register. However, in modern times, I am afraid that everyone in a public position has to face the disagreeable fact of hate mail; it is a feature of social media. We therefore cannot close down the openness that we want to have on many aspects.

I am thinking about the benefit of this register to the patient. It is important for the medical profession as well, but it is very important for the patient for a wider reason. First, obviously you want to find someone who will assist you to take your own life, but also, as these debates so often show, there is unfortunately a big moral gulf between those who support and those who oppose the Bill. If you think of a patient, particularly an elderly patient with a serious illness who is therefore eligible under the Bill, it is important that they know the type of doctor they are dealing with in a wider field of care.

For example, suppose I had to find a doctor for my aged mother, who is absolutely determined to live to be 100, and is, in fact, the only woman I know who lies upwards about her age. I know that she would not want to go to a doctor who provided assisted dying, which is understandable. Behind all this is a very different view about life and death and what they are, and a patient would therefore need to know. That is a very good reason for supporting the noble Baroness’s amendment.

I will be equivalently concise. It is important to connect Amendment 657, which specifies that assisted dying

“is not to be regarded as medical treatment”,

with our debate on the broader conscience protections that the Bill needs to include. The reason is not just that regarding assisted dying as a treatment is a conceptual error. As Wittgenstein pointed out:

“Death is not an event in life”.

We are talking about a personal existential choice. It is in no sense a treatment, but the Bill is silent on that question. As the noble Baroness, Lady Fox, and others have pointed out, that matters in the real world because, notwithstanding the employment protections included in the Bill, the professional duties on a doctor are potentially in play if assisted dying is determined to be a treatment. That will give rise to questions on the obligations of a doctor to raise assisted dying as a possibility, even if that doctor’s conscience is against participating. It will give rise to consent questions—we talked previously about the McCulloch test—and negligence questions from surviving members of the family. It is therefore important that we put this beyond doubt.

Given the understandable desire of the House to move on to the next group, I will just commend to fellow noble Lords an article in the BMJ from 9 June last year, written by Professors Gareth Owen, Alex Ruck Keene and Katherine Sleeman, which sets this all out beautifully. Their conclusion was:

“Statutory ambiguity serves neither professionals providing assisted dying, nor patients requesting it. Parliamentarians must consider this question”.

That is what we are doing. Amendment 657 would put it beyond doubt, and I hope that the noble and learned Lord the sponsor will accept it.

My Lords, I have Amendments 673A and 679 in this group. Amendment 673A would provide that a medical practitioner who had opted into the process could choose to opt out at any time, and Amendment 679 would insert a new Clause.

I will start with a number of questions for the noble and learned Lord. In a letter to Peers on 28 January, the noble and learned Lord said that he had had very productive discussions with Hospice UK on institutional protections, and that he would table amendments as soon as possible. I think that three amendments have been tabled, but I am not sure that they solve the problem that we are trying to solve. There is nothing in those amendments that requires any training to be kept up to date, there nothing about revalidation, and there is no requirement to be trained and up to date to enter the assisted suicide process.

Can the noble and learned Lord provide an update on his statement that he is working with officials to address Hospice UK’s concerns? Does he accept that the red line for many care homes is that they are not willing to tolerate this process on their premises? In the other place, the honourable Member for Spen Valley resisted a blanket institutional opt-out, arguing that it could lead to “stress and distress” for terminally ill patients if they are forced to move out of their “so-called home” on their final day. But what about the stress and distress of those who share that home, should the process take place on the premises?

Does the noble and learned Lord accept that it will be very difficult to extricate care home staff from involvement—such as organising appointments connected to the provision of assisted dying, assisting in the organisation and sending of documentation connected to its provision, or accommodating the doctor who must remain with, although not necessarily in the same room as, the resident until they die—were assisted suicide to take place on the premises? Do the noble and learned Lord and the Minister recognise the seriousness of a situation where hospices feel forced to close, which could cost around £8.4 billion a year to the public purse?

It has been very interesting to talk about the number of people who may be trained. However, if the equality impact assessment is anywhere near correct, the estimated number of patients in year 1 will be somewhere between “273 and 1,078”, and in year 10 it could be between “1,737 and 7,598”. This does not sit alongside the 310,000 people who accessed hospice care last year. Therefore, if there is no expectation of overwhelming demand from people wishing to end their life, why is there need for mass enrolment?

There might be a number of different reasons why organisations with principled Opposition might want to be exempted: freedom of association in law for charities, legal rights guaranteeing patients a choice of their place of care, the cost to the public purse, freedom of religion and belief in law, and the public benefit of faith-based charities.

We currently have a fragile workforce. In 2024, the Royal College of General Practitioners surveyed GPs, 42% of whom said that they were unlikely to be working as a GP in the next five years. This brings us back to the number of people who we may need to have trained. Whatever we think the Bill says, I am concerned that it is not clear enough. We also cannot underestimate the pressure on doctors and medical practitioners who may choose to opt out. If they work in an organisation that feels very strongly that this process should take place on its premises, someone’s career might be in jeopardy if they are not willing to sign up to it.

The noble Baroness, Lady Fox, raised issues around porters. Although we have discussed prisoners in previous groups, we have not discussed prison officers in this group. There is another group of individuals—not just doctors—who might want to exercise a conscience clause. It might include administrators as much as anybody else who works in the system.

My noble friend Lady Watkins of Tavistock rightly said that many people would choose to have excellent palliative care. The reality, as we have discussed, is that it is a postcode lottery. It is a great shame that as part of this Bill we were not able to discuss the provision of palliative care—it was ruled out of scope—because I think it would have given many of us a level of reassurance if we could have debated that at the same time.

We should challenge the notion that assisted suicide in a care home would just be a private act, similar to one that takes place in a person’s own home, as if no one else in the care home would be involved. They would be. We look to other jurisdictions—the Commons Public Bill Committee was told about the fate of Irene Thomas, a hospice in British Columbia. It was known as a sanctuary for dying people who did not want to be in a setting offering assisted dying, but the province adopted a policy that required hospices to provide assisted dying if they had over 50% funded beds. After the hospice board voted not to offer this, its 1.5 million Canadian dollars of public funding was cut, its clinical staff were laid off and it was taken over by the regional health authority.

I turn to voices from the sector within the UK. St Gemma’s Hospice in Leeds warned:

“If compliance with assisted dying provision becomes a condition for NHS funding, institutions like St. Gemma’s may have no alternative but to cease operations entirely”.

Dan Hayes of the Orders of St John Care Trust argued that, in a care home,

“there is no way in which a professional could be fully ‘separated’ from Assisted Dying”,

because

“the magnitude of the event” would affect the entire atmosphere of the communal living space.

On this group, we have not discussed the impact this might have on pharmacists. I do not believe that they are adequately protected. It is unclear what doctors and medical practitioners can actually opt out of. It is unclear what “provision of assistance” means and whether that is opting out of the conversation or of the whole process. The Royal College of GPs has been clear that it believes the Bill is inadequate. I believe it is a deeply flawed Bill that is economically risky and fails to safeguard the rights of organisations and individuals who want to conscientiously object.

My Lords, I will speak to the main theme of this group, but particularly to Amendment 679 in the name of the noble Baroness, Lady Grey-Thompson, which I believe is essential if we are to safeguard the valuable work of faith-based hospices and care homes, along with other institutions, that have a conscientious objection to assisted suicide. I speak as a member of a family in which loved ones—more than one—have committed suicide, and I know the pain of what that word entails and means.

I note this particular part of Amendment 679:

“No company, charity, or other organisation shall be required, as a condition of receiving funding or any other benefit from any public body, to participate in, facilitate, or permit on its premises the provision of assistance in accordance with this Act”.

I am seriously concerned that, even after 13 days of consideration in this place, we have still not truly appreciated the scale of the crisis facing the care sector should this Bill fail to provide sufficient protection for conscientious objection. The noble and learned Lord indicated in January that he had discussions with Hospice UK on this matter, but this only scratches the surface of the consultation that ought to take place. A Care England survey in autumn last year found that 84% of care providers have not been consulted on the Bill or its implications. This has caused particular concern within the care sector.

Returning to my point, in lieu of clear protections it is clear that the sector stands on the brink. We cannot ignore the fact that, for many hospices and care homes, provision of assisted suicide on their premises is a red line that they will not cross. Mission Care is a Christian charity providing nursing and residential care in five homes across London and south-east England. Aidan O’Neill KC recently warned on its behalf that should such charities be

“required as a matter of law to allow for the provision of euthanasia or assisted suicide for residents” within their care, they would

“no longer be able to operate in this sector”.

Mr O’Neill warns that this could

“precipitate a crisis in terms of local authority provision for care homes”.

A report from the Commons Public Accounts Committee just a couple of weeks ago found:

“The NHS is at risk of losing the huge value it gains from independent hospices beyond the provision of statutory palliative and end-of-life care”.

Given that, it is quite shocking that we are risking active withdrawal from the sector. On adult social care services, it has been estimated that faith-based organisations account for 10% to 15% of provision in the United Kingdom. This accounts for around 192,000 people. Should such organisations feel the need to withdraw, it has been estimated that it could cost £8.4 billion annually for the state to fully absorb that cost.

But it is not simply the money; it is also the special approach to care that will be lost. I will focus on Christian care homes, not because I believe they are the only group that recognises the inherent dignity of human life and they are at risk under the Bill— I believe that, deep down, we all in our conscience recognise that being is more important than having—but because, as a Christian Minister for over 50 years, I have seen at first hand the distinctive benefits of what these Christian care homes can offer, and what I therefore believe is under threat from the Bill.

To take just one example of a special approach, in addition to the skills of medics and nurses, Christian care homes and hospices often provide the support of on-site chaplains and carers to treat the whole person in response to the total pain of dying. They can also offer a community that, contrary to our modern tendency to pretend that death does not exist, recognises that it does, as a part of the human condition—for we all must needs die, and it is appointed unto men once to die. Of course, that verse continues: “after this the judgment”.

In my time as a minister, it has struck me in visiting such care homes that, for many, they are much more than just the person’s own home. It is not simply a room within a facility; it is a family in which, in embracing the ethos set by the home, people can support one another in prayer, worship and investing in one another’s lives. Openness in conversation about death can be just one part of that, meaning that it is not an issue left exclusively to the person’s individual room.

That is why I struggle with the Government’s argument against care home opt-outs. The argument runs that institutional opt-outs can infringe Article 8 rights of the individual to choose to die in their home. It has been said that it would lead to stress and distress for terminally ill patients if they were forced to move. But this fundamentally fails to recognise the community aspect of life within many care homes, which is predicated on the protection of the ethos. In other words, we also must ask about the stress and distress that could be caused to other residents within the care home should things happen that fail to align with the values they have signed up for. After all, in a way it is their home too. To put it bluntly, many residents would feel a violation of the place they have chosen to be in if an assisted suicide were to take place. Many may have exercised their right under the Health and Social Care Act 2012 and the NHS constitution to actively choose a faith-based place of care because it aligns with their values, and they may not wish to be in an environment where assisted suicide is practised.

What about the impact on care staff? It is vital that we appreciate that for many of the staff working in the care sector, it is not just a job—it is a vocation. It is their life’s calling. Many offer their services free of charge. We should not just suppose that it is as simple as walking away and getting another job. I speak from the perspective of many Christian carers, not because the same depth of feeling is not true of others but because, as my community is a Christian community, I can relate to the depths of feeling. For many Christian carers, this is not a peripheral issue to their faith. Their desire to care and bestow dignity through understanding, support and relationship is driven by their belief that God is inviting man into a special relationship with Him through the giving of His Son, and has bestowed the ultimate meaning and dignity on life, which they must model in their respect, care and giving of themselves for others. In other words, it is rooted in the very heart of the Christian faith. I labour this point—recognising that this is not a perspective that many noble Lords may share—because it is vital that, in discussing conscience protection, we realise just how closely this issue draws to many people’s central identity and their expression of it.

In closing, I appreciate that the noble and learned Lord, Lord Falconer, who is responsible for this Bill, may say that he very much respects those convictions and that that is precisely why he has put protections in the Bill—so they can opt out of the most direct aspects of it. However, I question whether the current provisions are anywhere near sufficient. I do not believe that they are. Does the noble and learned Lord accept that it will be very difficult to extricate care home staff from involvement in assisted suicide were it to take place on their premises? For example, there will be organising appointments connected to the provision of assisted dying, assisting in the organisation and sending documentation connected with the provision of assisted dying, or accommodating the doctor who must remain with, although not necessarily in the same room as, the resident until they die. For many, given the centrality of this issue to their identity, these too are tasks that they may feel unable to perform. Without an explicit provision giving care homes, especially Christian or faith care homes, the option to not allow assisted suicide on their premises, I fear that we will see an exodus from that sector.

If my noble and learned friend were to introduce into the Bill the provisions that the noble Lord wishes, would he then be in favour of such a Bill?

I think that the noble Baroness will be under no illusion: I am personally against the Bill, because I do not believe in it. But if there is a Bill, we have to have any protection in it—that is completely different. Therefore, in the context of the suggestion that, because I am personally opposed to it, there should be no protections, I believe that, if the Bill were to pass, we should have the proper protections for people who have faith.

My Lords, I rise not least because it is very important for us to take a moment to understand the importance of this debate—in particular, to address the matters raised by the noble Lord, Lord Pannick. I too have sat through all the days in Committee, and noble Lords will know that I have spoken rarely, but my conclusion is different from that of the noble Lord, because there is a huge benefit in listening to all sides of this debate. I have been moved by the speeches of my noble friends who have supported the Bill and by the speeches of those who have not.

The essence of this issue, in relation to opting in, is very important. I want to agree with what the noble and right reverend Lord, Lord Harries, said, in relation to the extraordinary contribution made by those who are specialists in this area, not least the noble Baroness, Lady Cass. What this House has been marvellous about is finding agreement. We are all agreed, it seems to me—including my noble and learned friend Lord Falconer of Thoroton—that this has to be an opt-in and not an opt-out. What we are debating is how we make sure that that to which we all aspire is actually delivered in the Bill.

I wonder whether my noble and learned friend has had an opportunity to look at the simple formulation adopted in Jersey and the Isle of Man, which puts beyond doubt the question of the opt-in. It deals with two things, the opt-in and the need for a register. It says that

“all professionals working in the assisted dying service”— which means everybody—

“must opt in to doing so and must be placed on the Jersey Assisted Dying Service register”.

It is the same with the Isle of Man. I know that my noble and learned friend has adopted the configuration of the Canadian model but, to give clarity to everyone, would he consider adopting very simple language that would put beyond doubt that we are talking about all those who are going to participate in this service, of whichever discipline, who would have to opt in? That might take the sting out of much of this debate.

This has been one of the most painful Bills that I have ever had the privilege to listen to the passage of, because of the pain that I have heard on all sides of the Chamber. If there is one thing that this House has been traditionally good at it is listening to each other, reducing the level of pain and actually being loving. One thing that has hurt is that this Bill has trespassed and hurt in a way that none of us has ever intended or would ever want. I want us just to remember that we actually like each other a lot.

My Lords, I strongly support Amendments 169, 268 and 657. In my discussions with a variety of doctors’ representatives, two issues clearly came out straightaway. They volunteered them— I did not ask for them—and they were about how this must shift to being an opt-in process. As it stands, it still definitely feels like an opt-out process in this legislation. The other thing that they were absolutely clear about was that this should not in any way be considered a treatment, because it is not. I do not need to repeat some of the arguments that have already been well articulated by the noble Lord, Lord Stevens of Birmingham, and others.

On Amendment 169, it is sensible to have a register. The noble Lord, Lord Moore of Etchingham, explained one of the reasons why, but I think that it is just for straightforwardness, so that people who are considering this potential approach can do it. Although I disagree with the BMA, and we are not discussing the clauses today about whether things can be raised by judgment, it would be helpful to give confidence in this process.

The questions that I have are principally for the sponsor and the Minister. The noble Baroness, Lady Blake, knows that I value her very much, but I appreciate that she is not the policy Minister, so if she does not have the answers today I would be more than happy to receive a letter in this regard from the relevant Minister. I want to talk through some of the amendments that the noble and learned Lord, Lord Falconer, has tabled. On Amendments 422 and 423, there are other groups later when I think we will discuss replacement of doctors—it does not matter whether that is in this group or not. I would like to get a sense of why he feels the need to do that.

One of my broader concerns, more generally, about Amendment 669A is that, while I appreciate that the noble and learned Lord is trying to address a challenge that has been laid, it still feels as though it has either not gone far enough or is almost tipping it the other way. If we consider the impact assessment, the Government suggest that even by year 10, fewer than 8,000 people may have taken advantage of the Bill. That contrasts significantly with Marie Curie’s figures that over 300,000 people engage with hospice care and palliative care every year. It does feel, and part of the debate we had earlier almost suggested it, that doctors should do it unless they choose not to, and I strongly believe we should do it the other way. Some of the amendments to the Bill lend themselves to that opt-in register, in effect, and then providing the necessary training to support this approach. I think it is fair to say that Schedule 3 is comprehensive, but again, sometimes when you are relying on aspects, you end up becoming a minority, and that in itself can bring coercion to perhaps go against your own personal views.

A few weeks ago, we got into the whole issue of providing treatments and the legal ruling that led to the GMC changing its guidance, which was deemed enough. Actually, the GMC has just published new draft guidance tackling issues to do with personal beliefs and the like. In particular, I am concerned that, unless the Bill is explicit that this is not a treatment, with all the forward implications of the fact that it is not there, we may end up with a lot of case law, or a lot of rulings. Also, point 23, I think, of the draft guidance that the GMC has put forward suggests, basically, “If there’s no alternative, you’re going to have to do this. You’re going to have to offer it, whether you like it or not”. That is more or less what it says, so it would be useful to hear from the Minister what discussions have been had with the GMC in considering that approach in the guidance, because it is relevant to our consideration of the Bill.

Amendment 888, tabled by the noble and learned Lord, extends Clause 31 to everybody in Scotland. I have an amendment, which I did not talk to because Amendment 888 was in this group, which is just trying to understand whether it was the Government or the sponsors who had already started to expand a series of primary legislation issues, I guess, to practitioners in other countries where the Bill does not generally apply. We had a debate a while ago about Section 30 orders, which is now somewhat redundant given the decision by the Scottish Parliament not to proceed with the Bill that it was considering, but I want to get a sense from the Government of where they are on this. I thought that the issues proposed in Amendment 888 would have been covered by a Section 104 order if the Scottish Parliament had gone ahead, so I want to get an understanding of the reasons for tabling this. If the Bill is going further and trying to bring the Scottish medical profession into potentially providing services in this country, that opens up a whole new chapter of consideration. In asking these questions, I am just trying to deepen my understanding and get clarification, both from the sponsor and from the Minister.

My Lords, I want to cover a couple of points and reflect on what the noble and learned Baroness, Lady Scotland, said, which was that, despite the debate, there is a sense that people are agreed that this should be an opt-in rather than an opt-out process. The problem is that the way the Bill is drafted does not make that clear, and that is not just my view but the view, as we have heard, of many of those who are going to be involved in delivering this service. I will not go into that in great detail because many people have done so, but the Royal College of General Practitioners thinks that there should be a register and a more explicit opt-in system. Some of the other royal colleges do too and, as I think somebody else said, the Royal College of Nursing thinks it should be very clear that no one should be forced to participate. Of course, I give way to the noble and learned Lord.

The noble Baroness, Lady Gerada, made it clear that the Royal College of General Practitioners was not in favour of a register. It may well be in favour of an opt-in process, but not a register.

The noble Baroness said that it was not in favour of a public register, and I did not say that it was, but that is a helpful clarification that the Committee has now been able to hear.

The problem, though, as I said, is with how the Bill is drafted. There are a couple of points. First, I strongly support Amendment 657, which says that assisted dying is not to be regarded as a medical treatment. As I said, I do not need to set out the details—the noble Lord, Lord Stevens, did that admirably. What I would ask the sponsor of the Bill, the noble and learned Lord, Lord Falconer, is whether he regards the provision of assisted suicide as a medical treatment or not—forgive me if he has said this on a previous occasion, but I do not think he has. If he does regard it as a medical treatment, that would be clear. I would not agree with that, but it would make it more important that we change the Bill to make it clear that it is not. If he does not think it is a medical treatment, I cannot see any objection to accepting this amendment and making that clear.

This is not dancing on the head of a pin; it is really important, because for this to be opt-in, not opt-out, everyone involved has to be clear about their responsibilities. The noble Baroness, Lady Andrews, read out Clause 31(1), which states:

“No person is under any duty to participate in the provision of assistance in accordance with this Act”.

There are two problems with that. First, they may not be under a duty according to the Bill, but the problem is, as the noble Lord, Lord Stevens, said, that if the provision of assisted suicide is regarded as medical treatment, medical professionals, in particular, have a whole range of other professional and legal duties that they have to undertake. They may not be compelled by the Bill to participate in providing assisted suicide, but some of their other legal duties may force them to do so if it is regarded as a medical treatment. It would be helpful to clear that up.

I am absolutely amazed to hear that. Clause 5(1) says:

“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.

That would mean, as a matter of law, that there is never a duty to raise it. Clause 31 says:

“No registered medical practitioner is under any duty to become … the coordinating doctor … or … the independent doctor”.

There could not be—take it from me—greater legal clarity that there is no legal obligation either to raise it or to participate in it. Whether it is a treatment or not, which is a most interesting philosophical question and I am not underplaying that issue, the reason that the terms of the Bill are so absolutely clear is so that no doctor could be in any doubt whatever that they are under no legal duty.

The problem is that I do not think it is that clear, and it is not just me. If it were that clear, then the royal colleges that think that it should be made clearer would not think that. The problem is—

My Lords—

Hang on, let me just finish the point. With respect, people on my side of the debate keep being told off for speaking at length. There is a choice here. I want to try to make my remarks brief, but if I am going to take lengthy interventions from the noble and learned Lord, which I am quite happy to do, then I do not expect to be shouted at if I end up going over the time limit. People cannot have it both ways, but I am delighted to take his Intervention.

I never make long interventions. The complaint of the doctors is that they want an opt-in and not an opt-out. Their complaint is not that it is not clear enough that they are under no duty to give advice and no duty to be a doctor under the Act.

The noble and learned Baroness, Lady Scotland, said that there was a great agreement in the House that there should be an opt-in system, and the noble and learned Lord is nodding his assent to that. If the Bill delivered that, the royal colleges that say they want an opt-in system would presumably be content with it. They are not; they want it to be changed to deliver that opt-in system.

I completely accept the point about opt-in. I am pressing the noble Lord on his question as to whether there could be a doubt that a doctor is under a duty to raise it, and I am saying that there is absolutely no doubt in the Bill that no doctor is under a duty to be the doctor under the Bill or to raise it under the Bill. On the question of opt-in, everybody accepts that there should be opt-in, and I have put a provision in my amendments to that effect.

I am very clear that the Bill does not create a duty for people to participate. The problem is that, if there are other statutes and responsibilities for medical professionals, there is then a lack of clarity. It does not matter whether the noble and learned Lord thinks so; if the medical professionals who have to make judgments think it is not clear, that is a problem and it should be put beyond doubt. That is the only point I am making.

The second point comes down to the register. The noble Baroness, Lady Gerada, did not answer the question I put to her. She gave a long answer, but it was an answer not to my question but to a different one that I had not asked. I am grateful that she has just come back into the Chamber.

I asked her whether she thought that a general practitioner’s patient had the right to know whether that general practitioner supported the provision of assisted suicide. That is not just a piece of nosiness; it is important because, as we know from earlier debates, the Bill prohibits a medical professional raising this issue unprompted with a child, but they are able to raise it unprompted with an adult. It is perfectly reasonable for a GP’s patient to want to know that, if they were to reach a point when assisted suicide might be raised with them, they would rather have a GP who did not.

This is important because, as soon as you say that a patient has a right to know this information, and the GP tells them, that information can then be in the public domain. It is better if we have sensible system that is transparent and have a register, and people are clear about it. The noble Lord, Lord Moore, made the point that, in the modern world, you have to have transparency. We deal with the way people behave in other aspects of criminal law. It is not right and would be unlawful for people to harass a general practitioner, or step over what is reasonable in the way they treat them, just as it is in the way they treat Members of Parliament or other people in professional life. There are aspects of the law to deal with that. That is not an excuse to keep this information secret, and people have a right to know whether somebody is willing to participate in this sort of activity.

My final point is about extending this to everyone in the process. There is a lack of clarity about what “provision of assistance” means: whether it is simply the provision of the poisons that are to end life, or every aspect of the process. I do not know who said it, but I was very disappointed when the noble Baroness, Lady Fox, referred to a porter being very uncomfortable and not wanting to participate in the process, and somebody shouted out, “For goodness’ sake!” I thought that was appalling. A porter in the health service has exactly the same right as a doctor to not participate in this process. They should have the same right to object to this as anybody else and to have to opt in to it. Expecting in particular junior members of staff to have to use the employment tribunal system, and to defend themselves if they are put under pressure to participate, is not the right way to deal with it. An explicit opt-in system for every single person in the system is the right way to go. I strongly support the Amendment, which makes it clear and puts beyond doubt that this is not a medical treatment, because that then deals with the other duties that may fall on medical professionals in the National Health Service.

Can I give a clarification? I have just been in contact with most of the senior officers at the Royal College of General Practitioners. To put it on the record, to the best of my and their knowledge, the RCGP has not called for a register, a public one or otherwise.

I am grateful to the noble Baroness. I said they were in favour of an opt-in system; I did not say they had called for a register. I want a register and I support the amendments that say we should have one. As the noble Lord, Lord Moore, said, it should be a public register. In essence, if you did not have a public register, as soon as people asked their GPs and other medical professionals for their view, in the modern world that information would become public. It would be much better to have a proper, well-managed system that was published, and then everyone would be clear about where people were on this and could access the relevant medical professionals if they wished to use them.

Noble Lords:

front bench!

Noble Lords:

Minister!

Apologies, I was taken by surprise by the lack of an Opposition front bench. I thank noble Lords for another important debate on opting into and out of providing assistance and various functions under the Bill. As I have already made clear, I will keep my comments limited to amendments on which the Government have major legal, technical or operational workability concerns.

I first turn to Amendment 189, tabled by the noble Baroness, Lady Fraser. This amendment may give rise to Article 8 ECHR issues, as publishing a register of professionals willing to participate in voluntary assisted dying could expose those individuals to intrusion or a risk to personal safety.

Amendment 657, tabled by the noble Baroness, Lady Fox, seeks to specify:

“The provision of assistance under this Act is not to be regarded as a medical treatment”.

The Government have made no decisions on what a service delivery model would look like. The Committee may wish to note that this amendment may impact the possible service models for voluntary assisted dying by limiting what the Government can achieve through Clause 41 regulations. Clause 41 currently enables the Government to make amendments to legislation, including the NHS Act 2006, to ensure that assisted dying could be delivered as part of the health service, which may require amending or modifying definitions of “treatment” to include assisted dying.

Amendment 664, tabled by the noble Baroness, Lady Lawlor, would allow health and social care professionals to opt out of all training in relation to the Bill.

I am sorry to interrupt the Minister, but I am grateful that she has allowed me to do so. I want to make sure that I understand correctly what she has just said. I think she just said that, at the moment, the NHS would not be able to deliver this service unless there were some amendments made to make it clear that this was indeed a medical treatment, and it would therefore be necessary to make those amendments to explicitly define it as a medical treatment. I wanted to check I have understood her because, if that is what she is saying, it then opens up the very complex and difficult issues that the noble Lord, Lord Stevens, so ably set out a short while ago.

I confirm that it is “may require”: that is the response I wish to give him on that. Again, it is pushing the limits of what I am able to say at this point, in terms of future policy.

I absolutely accept, as my noble friend Lady Coffey said, that the Minister does not have the policy responsibility, so I am absolutely not going to press her for an answer now. However, it would be helpful if we were to get a written response from the policy Minister that clarifies this point about whether it would be necessary to amend the law so that it was explicitly a medical treatment for the NHS to be able to provide this service. That would be helpful, but I am not going to press her on this. That would be most unfair.

I am certainly happy to take the noble Lord’s comments to my noble friend Lady Merron and see whether it is appropriate for her to respond in the way that the noble Lord suggests.

Perhaps I could start again on my response to the noble Baroness, Lady Lawlor. Her Amendment would allow health and social care professionals to opt out of all training in relation to the Bill. It would require that, where a health and social care professional agrees to training, written consent must be given. The amendment also creates an obligation to provide official guidance on training in relation to the Bill on the day it receives Royal Assent. The requirement to publish official guidance on the day of Royal Assent may be unachievable, given the work on implementation that must be undertaken before such guidance can be published. It is also unclear how this interacts with other requirements in the Bill, such as the duty to consult various persons before any guidance is issued.

I turn to Amendments 667A and 848C, tabled by the noble Baroness, Lady Hollins. Amendment 667A would require the Secretary of State to make regulations to provide for a specialist register of assisted death practitioners and the criteria for entry in that register. As the Government would begin work on regulations only after the Bill receives Royal Assent, the requirement to make regulations within one month of the day on which the future Act is passed may be unworkable. In addition, significant policy work would be required to understand what a specialty for assisted dying would look like.

Amendment 848C would additionally prevent registered medical practitioners performing functions under the Bill if they are not included on the GMC’s existing specialist register with a primary specialty in geriatric medicine, palliative medicine, medical oncology or clinical oncology. My noble friend Lady Blackstone referred to that. The effect of this amendment would be to exclude clinicians who may have relevant experience and qualifications. This may limit the Government’s ability to design an optimal service.

Amendments 681 and 864, tabled by the noble Lord, Lord Goodman, give rise to two key workability issues. First, they duplicate matters largely covered in Clause 31 and Schedule 3. Secondly, Amendment 681 would introduce a complete right to conscientiously object to taking part in the provision of assistance. This conflicts with Clause 31(7), which contains a small number of duties that cannot be opted out of—for example, recording the cancellation of a first declaration, or passing on or recording information about a person in their medical records, which may be relevant to their eligibility for assisted dying. If a person is able to opt out from participating in any aspect of the Bill, without any exceptions, this may render the Bill unworkable.

I turn to Amendments 668 and 670, tabled by the noble Lady, Baroness O’Loan. Amendment 668 seeks to replace “registered medical practitioner” with “person” in Clause 31(3). This would widen the provision, so that individuals with express statutory duties in the Bill would not be obliged to perform any function under the Bill. This would include, for example, the Secretary of State, Welsh Ministers, the assisted dying commissioner and members of an assisted dying panel. Allowing opt-outs for these roles could make the Bill unworkable. Amendment 670 also seeks to provide an opt-out for ancillary functions, such as administrative tasks or the supervision of staff. This could broaden the range of activities that a person can refuse to carry out and give rise to significant operational issues.

Amendment 679, tabled by the noble Baroness, Lady Grey-Thompson, could limit the places where assistance could be provided. It could, for example, preclude access to an assisted death for those residing in some private hospices or care homes. The Committee may wish to note that this amendment may result in inconsistent treatment for patients when seeking to access an assisted death and could give rise to Article 8 ECHR issues, unless a reasonable and objective justification were provided.

As noble Lords will be aware, the other amendments in this group have not had technical drafting support from officials. The issues raised by these other amendments are rightly matters for noble Lords to consider.

To respond to the direct question from the noble Baroness, Lady Berridge, no civil servant working on the Bill was put under any pressure to work on it.

In response to the noble Baroness, Lady Smith of Newnham, policy decisions regarding opt-outs within the Bill are for the sponsor. However, once legislation is passed, the Government as a whole are expected to implement it. If an individual had an objection to working on assisted dying policy due to a personal conscience objection, issues would be handled case by case, through discussion.

I turn to the noble Baroness, Lady Grey-Thompson. If the Bill passes, any service model would be developed with stakeholders. The Bill as drafted does not require care homes or hospices to provide assisted dying, nor does it specify funding arrangements or penalties for opting not to do so. The Government have a continued commitment to high-quality palliative and end-of-life care for all, regardless of assisted dying provision.

With regard to the noble Baroness, Lady Coffey, as I have said before, amendments tabled by the sponsor are for him to respond to. However, I will of course write on the other specific questions that she asked.

What assessment was made by the Government when saying that the proposals in these amendments would limit the ability to design an optimum service in relation to the Bill, given the system in the Netherlands where SCEN doctors—the second opinion doctors—have specific training and are specifically listed as being able to provide that information? That is a nation where the number of people euthanised is very much higher than suggested in the impact assessment. Having a group separately trained and listed, who are deemed to be specialising in part of this, seems to work in the Netherlands. I would be interested to know what assessment the Government made of that in formulating their response to this group of amendments.

I cannot answer that specific question, and I am not sure it would be appropriate for me to do so. We note the comments that the noble Baroness made.

My noble friend loves sometimes to overstate it, I have to say, but we should do our best to try to co-operate and reach agreement. I express my gratitude to the Committee for all the opportunities they have given me to listen over the past 15 days, with two more days to come.

I will deal with the issues that have been raised under four headings. First, is this an opt-in or opt-out system, and, if it is not an opt-in system, do we need to change it to make it one? Secondly, is the width of the opt-out in Clauses 5 and 31 wide enough? Thirdly, what should we do about the suggestion of the noble Baroness, Lady Fraser, and others of a register? Fourthly, the suggestion of the noble Baroness, Lady Cass, was significant, and we should think about whether that is workable in a variety of ways.

Is this an opt-in or opt-out system? I have spoken to a lot of people on this, in particular the BMA. It is not happy that the Bill in its current draft is adequately clear that it is an opt-in system. In accordance with the wishes of the BMA, and after considerable discussions with it, in Amendment 669A we have included a requirement that everybody who has the specialist training—which is a necessary requirement before you can participate as a doctor under the scheme—has opted in to the specialist training. The BMA was very clear, and I accept this, that opt-in should be in the Bill so that there can be no doubt about that. We have done that and I hope that everybody will agree with it.

I do not quite understand, then, why I received a letter dated 26 March, just this week, from the Royal College of General Practitioners, requesting explicit clarification in the Bill to make it clear that there is no expectation on any doctor, including GPs. I wonder whether there were discussions with the royal college and whether its comments had been rejected.

There is a difference between expectation on the one hand and opt-in on the other. We take the view, after discussions with the BMA, that opt-in is sufficient to make it clear that you have to actively take a step before you are required to participate. The fact that you have to opt-in means there is no expectation, one way or the other, that you need to opt-in. I take the view that that is an adequate response. I do not know whether the Royal College of General Practitioners had a chance to look at our amendments, but I suspect that they will be adequate in relation to that point.

From there, I go on to Clause—

I thank the noble and learned Lord for giving way. This really is the most important point. There are elements of the delivery of health service that require an ability to understand what a doctor is doing and what his views are. If we only have doctors opting in, we will not know which doctors have opted in, and they will not know which doctors have opted in. They may wish to do the training and then, after, to not participate in the process. That may change their views. Therefore, it is not sufficient to make a Clause that says, as Amendment 669A does, that the doctors will opt in and therefore that deals with the problem of opting in, because it does not. The reality is, with great respect to the noble and learned Lord, that we need a specific provision for opting in in the Bill, as suggested by the noble Baroness, Lady Finlay.

There is a specific provision for opting in. I am not quite sure what the noble Baroness is saying. It is absolutely clear that that is the provision.

I move on to the amendments to Clauses 5 and 31 on the width of the opt-out. As far as Clause 5 is concerned, as I indicated to the noble Lord, Lord Harper:

“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.

A number of noble Lords, including the noble Lord, Lord Stevens, made the point, and he referred to Professor Ruck Keene and others’ articles on the problem. We have approached the question of whether it is a treatment or not on the basis of what provides a practical answer to doctors and medical professionals. If you say that it is not a treatment, I do not see why that would necessarily obviate the need, if you are worried about doctors or health professionals having, in particular circumstances, to raise it. The key thing for the doctor to know is there can never be a legal duty on him or her to raise it or to become a participant in the system.

What more could—

My Lords—

Let me finish.

What more could one do to give protection to doctors? Beyond saying that there will never be a duty to raise it or to participate, I cannot think of what wording there could be.

I thank the noble and learned Lord for giving away. One answer would be to simply put in the Bill that this is not a treatment, in which case all the other consequences would not arise. The question, just to clarify, is: is he saying that assisted dying is deemed to be a treatment? Nevertheless, his Bill overrides the duties on a doctor affirmed by the Supreme Court in July 2023 in the McCulloch case.

Yes, there can be no duty to raise a question of assisted dying if an Act of Parliament says that there is no duty to raise it. That case, the Montgomery case and the normal negligence cases do not in any way lurk in the background waiting to, as it were, stop this. It is absolutely plain that the effect of this provision and the provision in Clause 31 is that if you did not raise it, there can be no legal kickback of any sort. That is why it was phrased like that, and that is why putting in the words “it is not a treatment” would not be sufficient.

I entirely agree with what the noble Lord, Lord Stevens of Birmingham, just said. We just heard from the Minister that one of the possible implications of the Bill is that, because of Clause 41(4), the NHS Act 2006 would need to be amended in order to bring this service into the scope of what the NHS Act says is the role of the National Health Service.

Potentially, if I understood the Minister’s wording correctly, bringing assisted dying within the context of treatment under the NHS Act 2006, rather than amending the NHS Act to say that the NHS is going to provide this service, is entirely the wrong thing to do, but it does not form any part of the comprehensive service that the NHS provides for promoting the improvement of people’s physical and mental well-being.

How this Bill would be interpreted in the context of the responsibilities of the NHS, as the noble Lord, Lord Stevens, told us on a previous day, is a very important question to which the sponsor of the Bill is not giving us an answer.

We have discussed this before and the noble Lord, Lord Stevens, is right. He is referring to the 2006 Act—not the noble Lord’s Act but the one before it—which says that the obligation of the National Health Service is to provide treatment and care. There is then a question of whether that includes assisted dying, which is unresolved. If it is to be provided by the NHS then there must be some Amendment to that Act, as it refers to the basic constitutional point.

That is of little assistance to a doctor who needs to know whether he could be in breach of any legal duty by not providing assisted dying. That is the key question that is raised—and it is unequivocally answered by Clauses 5 and 31.

The confusion is that a doctor’s duty is to present a patient with all the possible treatments they could have. If they refuse to mention chemotherapy or that the patient could take this painkiller, they would be negligent and could get struck off. If assisted dying becomes a medical treatment, then, regardless of conscience clauses, a doctor would be under a duty to offer it as a treatment. If they did not, they would potentially be in breach of their medical role as a doctor and open to civil liability. Noble Lords cannot keep saying, “I have said opt-in, it’s fine, stop worrying, we’ve said that your duties are fine”. Those of us who are concerned about that doctor’s conscience are saying that if it is a medical treatment, their duty will be to offer it and that nothing said here will cancel that. They could lose their professional reputation and their job and end up in the courts. That is what we are worried about.

May I say that the noble Baroness puts it brilliantly? Here is a range of treatments, or—deleting “treatments”—here is a range of things that can be done. One of them is assisted dying. The worry that the noble Baroness expresses is that if it is a thing that can be done, using it neutrally, if you do not tell the patient that then you could be negligent or in some problems. That is why, whether it is a treatment or not, we have dealt unequivocally with the problem by saying, “You are never under a duty to raise it”. It is not to be treated as being in the same category as the other treatments, such as chemotherapy. The noble Baroness, Lady Fox, expressed the problem exactly. We have addressed the problem. She may not like the answer but, as far as the doctors are concerned, they have complete clarity and complete protection.

Moving on from whether this is an opt-in or an opt-out—we have made it an opt-in, subject to the Amendment being agreed—the next issue is the width of the opt-out in Clause 31. As I have pointed out, Clause 5(1) states:

“No registered medical practitioner is under any duty to raise the subject”.

Clause 31—I am sorry to weary noble Lords with this; we have looked at it a bit already—states:

“No person is under any duty to participate in the provision of assistance in accordance with this Act”.

That means that no person is under a duty to do the things referred to in Clause 26. Also:

“No registered medical practitioner is under any duty to become—the coordinating doctor … or the independent doctor … No registered medical practitioner, other than the coordinating doctor or the independent doctor, is under any duty to perform any function under or in connection with this Act … No health professional or social care professional is under any duty to respond” to any request for information in connection with assisted death. Also, no

“registered pharmacist or registered pharmacy technician is under any duty to participate in the supply of an approved substance”.

These are wide protections but they are not empty; they have the support of the full panoply of Schedule 3 to the Employment Rights Act 1996. Although the noble Baroness, Lady Fox, has fluctuated between saying that there are too many protections and too few protections in the Bill, the absolute maximum number of legal protections is provided to anybody who, because they will not do an assisted death or participate in it—or even will participate in it—is entitled to all the protections against discrimination that are given to all the protected characteristics.

This clause is wider than the Abortion Act, for all the reasons that the noble Lord, Lord Pannick, gave. I noticed that the noble Baroness, Lady Berridge, and the noble Lord, Lord Goodman, have put their name down to incorporating into the Bill the same provision as the one in the Abortion Act. It is narrower because you have to establish a conscientious objection in relation to abortion, whereas here, if you say no for any reason whatever, that no has to be respected and the law is not interested in whether your objection is conscientious. It can of course be conscientious if you want but there is no problem about trying to establish that.

Given that I had raised the concern and the noble and learned Lord took care and trouble in responding to it, I listened very carefully to what he said. The problem is that what he said about no one being forced to participate in the steps set out in Clause 26 and all the other provisions would not cover—to pick the example from the noble Baroness, Lady Fox—the porter who is being asked to take the patient to the room in which they were to be assisted in ending their life. If that porter were to say, “I don’t wish to do that because I don’t wish to help this person end their life”, nothing in what the noble and learned Lord said would provide them with any protection, which is why many of us do not think this provision is wide enough.

The unfortunate thing is that it probably provides quite a lot of protection to the more senior people in this process—the doctor and the medical professionals—but it fails to provide protection to the more junior people involved in this process. Those without medical qualifications, such as the porters, the administrative staff, the cleaners and the other people who work in a healthcare setting, do not appear to be protected at all.

In relation to a porter, for example, a porter cannot be required to be in the room or helping in—I said Clause 26 but I meant Clause 25, which is in relation to the provision of assistance; I apologise for that. The noble Lord has given an example of a cleaner. There are many other examples of administrative staff in a hospital, for example. The sponsors of the Bill have taken the view that there should not be a conscience clause in relation to, for example, a cleaner or somebody doing ordinary administrative tasks, because you have to make these institutions run properly. What there should be an absolute bar on is either being a doctor participating in the process or being actually involved in the process of providing the lethal drugs under Clause 25. We have drawn the line there, and it is for the House to decide whether it thinks the line is in the right place.

My Lords—

Can I go on for a bit? I will come back at the end if there is time, but let us keep going.

Next, on the register, I think Amendment 189 from the noble Baroness, Lady Fraser, is trying to do two things. First, it is trying to have some sort of opt-in process, because it says:

“Registered medical professionals who are unwilling or unable to conduct preliminary discussion are not required to join the register under subsection (6)”.

That is her proposed new subsection (8). That is not really an opt-in; you are “not required to join”. My conversations, in particular with the BMA, make it clear that it wants the words “you’ve got to opt in”, so I am not sure that that bit on opt-in or opt-out quite gets it.

On the other point about a register, it might be that in time there should be a register. I am very strongly not in favour of putting a register in the Bill. Let the Secretary of State and the medical profession say if that is an appropriate thing to do. I do not think it goes to the fundaments of the Bill. Although I am struck by the robustness of the noble Lord, Lord Moore, on behalf of doctors, I do not think, without further consultation after the implementation period has gone through and without a bit more knowledge about what the effect might be, that one should willy-nilly put on to a public register, in the public domain, the names of people who are willing, and therefore people who are not willing, to do assisted dying.

In Amendment 189, the lead amendment in this group, my noble friend is looking for who one goes to in order to provide the necessary assistance to a person if the original conversation is not something the doctor wants to pursue. All doctors are supposed to have training, and they opt in to the training, but how do we know who they are if we do not have a register?

The precise knowledge of who does it, where the list is kept, who registers with whom—for example, whether they register with the commissioner—is about detailed implementation, and I am strongly of the view that we should not try to get into the nitty-gritty in relation to that in the Bill. I recognise why the noble Baroness, Lady Fraser, proposes putting this into the Bill, but I hope she will understand why, first, in relation to opt-in, I am not sure it quite gets there, and, secondly, in relation to a register, I am not in favour of it at the moment.

I am genuinely trying to help the noble and learned Lord for this reason: I am concerned about the person who wishes to avail themselves of this Bill. I do not understand how you do that effectively unless you can look at a list and get the person you want. I am concerned that those of us who want real protection must not overcomplicate the Bill, even if we are against it. That is why I am genuinely saying to the noble and learned Lord that if there is no list, I do not understand how somebody can, with ease and confidence, take part in something that I do not like but that, if it were the law, would be available. That is what I am concerned about. If there is no list, there is a great deal of obfuscation. It seems to me that it should be part of the policy of those presenting the Bill to expect a list.

I am very grateful to the noble Lord for his assistance in relation to this matter. As far as I am concerned, precisely how one identifies who is available to do it should be worked out in the implementation because it goes to publicity and to what is the most convenient way of doing it, and I do not think that normally or sensibly this should be in the Bill.

The noble Baroness, Lady Cass, is proposing that in the course of the conversation, which is referred to in Clause 12, the person should say that this is their own choice. I think that is not necessary or appropriate where one of the things that the two doctors and the panel have to be satisfied of is the fact that this is the clear, settled and sustained view of the person. I do not think that putting words in, as it were, is appropriate.

I understand why the noble Baroness says that you should have the two doctors together, and they should refer to what is, in effect, the written record of the multidisciplinary team. If that is available, they should definitely do that, but I do not think it will be available in every case. One hopes that it will be, but I cannot be sure that it will, and that should not be a bar to doing it. I see the force of saying that the two doctors should do it together, but my anxiety is that, if you are looking for genuine safeguards, you have to have a position where the two doctors who have reached a view that the conditions are satisfied have done so independently of each other. I can see the convenience of doing it together, but I think it has to be done separately instead.

I have had the benefit of discussing with the noble Baroness, Lady Cass, many of the ideas that she has put forward; I have found that incredibly helpful. One of her helpful insights is that, in reality, this will in effect have to be some sort of specialist service. If you want somebody to help you in relation to this, it has to be somebody who has expertise in doing it. But that insight does not mean that it has to be completely separate from all the other care you are being provided with. Frequently, when someone is dying, they have a variety of specialists helping them as part of a team. If assisted dying is what the patient wants, I do not think that the specialist should feel that they have to be completely separated from the rest of the team looking after the patient.

May I respond to that? I have not said that they cannot be part of the team. It is likely that the person who is covering a particular area or locality will be known to the team and to the palliative care services. They may or may not be as familiar as other specialists—I hope not, by virtue of the fact that we are anticipating smaller numbers—but they would be a separate individual who comes in, like a cardiologist.

I am sorry; I stand corrected. What I was getting at was that they should not feel that they have to separate themselves. If I wanted an assisted death, at home, I would like to think that the people caring for me would still be available to me up until it happened. I suspect that that would matter to me quite a lot.

They would; that is the point of it. Your co-ordinating professional, as I described them, would be with you throughout, as would the specialist assisted dying doctor, from the time you started engaging with them. You might want to check in with one or the other, depending on whether you wanted your symptoms addressed or another discussion about what the process of having an assisted death would be like.

May I check something regarding my Amendment 664? Given that the noble and learned Lord insists that no person will be under any duty to perform or provide for an act under this measure, will that apply to participation in training, since training is not a duty to do something?

You have to opt in to training in consequence of my Amendment. Therefore, there can be no duty to participate. I do not think it is necessary to say that in the Bill.

The noble Lord, Lord McCrea, who is not in his place, raised the point about care homes, hospices and other institutions. Along with the sponsor of the Bill in the Commons, I have had considerable conversations with Hospice UK. Its anxiety is that if it says “no”, institutionally, to assisted dying, that could affect in various ways its entitlement to funding, particularly from the state. I am alive to that concern, and we should deal with it in the Bill; I have been working on trying to do that. I should make it clear that this is limited to hospices only. We are looking at that area, and once we have done so, it may be limited to private—not NHS—hospices. It requires work, but the point made has validity in relation to hospices but not care homes.

This will be my last Intervention, I promise. I just want to press the noble and learned Lord on this issue. In the exchange we had earlier, he confirmed that in Clause 31 the right to not participate is “in the provision of assistance”. I was unclear about the definition of “provision of assistance” and he confirmed that it meant the steps set out in Clause 25 —he corrected himself—which is titled “Provision of assistance” and is about the endpoint of the process: the provision of the poisons that will end someone’s life. I think that he confirmed, but I want to make sure that I am absolutely clear so that I do not misrepresent him, that that means it would not be open to, for example, the porter who did not want to take the person to the room in which the substances would be administered to say that they had an objection to this process and would not carry it out. They would not be able to use the provisions under the Act, they would not have the protections, and I do not think that that is right.

If the noble and learned Baroness, Lady Scotland, correctly identified the mood of the Committee—that we think people should have those options and have to opt in—that should apply to everybody, not just those at the top of the tree. It should apply to everyone involved in the process, including more junior members of staff who will find it harder to enforce their rights.

Clause 31(1) states that “No person”—it is not restricted to doctors—

“is under any duty to participate in the provision of assistance”,

as defined in Clause 25. Subsection (2) states that “No registered medical practitioner” has to become a “coordinating doctor” or an “independent doctor”. Subsection (3) states:

“No registered medical practitioner, other than the coordinating doctor or the independent doctor, is under any duty to perform any function under or in connection with this Act”.

I have set out my position on that, including in relation to the porter example. I do not think I should go further than that.

My Lords, I hesitated but I want to come in on that, because I am not clear what the position is for care assistants and people who are involved in the intimate care of patients. In Australia in particular, there have been problems where staff such as care assistants, who are not qualified nurses, feel that they are providing the patient with their last bath and last meal and that it feels as if they are having to, in effect, prepare somebody for their execution—the end of their life. That might sound shocking in the way that it is expressed, but that is how it was relayed to me. Similarly, staff who are preparing a meal that turns out to be a person’s last meal can find that very distressing.

If I have heard the noble and learned Lord correctly, those staff will have no ability to have any conscience objection whatsoever. In effect, they are being treated as people who just have to operate in their job, like it or leave it. Is that correct?

Not in that language, not at all. But if, suppose, you are a care assistant giving somebody a bath before the provision of assistance, there is no conscience Clause in relation to that. I am not sure whether the noble Baroness is suggesting that if you are caring for somebody who you know is subsequently going to have an assisted death, there is some point at which you, as a care assistant, should be entitled to say, “I’m not going to provide assistance to that person because I find the issue of providing assistance contrary to my conscience”. But as far as the Bill is concerned, every person, doctor or not—that includes care assistants—is under no duty to participate in the provision of assistance in relation to the provision of the substance under Clause 25. Working back from that, the person does not have the protection.

So, to clarify, the noble and learned Lord is not allowing a provision here to say that if you have strong feelings, for instance, you will be able to ask not to be rostered to work on that shift, or on that day, or in that situation, and instead be able to be moved to Another place. One of the solutions in some places has been that when an assisted death is scheduled, the members of staff who do not want to work that day have a right to be rostered off, so as to be able to assert their conscience.

If the position is that if you are on the roster, there is a risk that you will be in the room and assisting in relation to the provision of assisted dying, of course it would be sensible not to be rostered on that day. That is the sort of solution that I hope that people would be looking for.

The noble and learned Lord’s Amendment 669A refers to Sections 8(7), 11(9) and 26(2), but that is only for medical practitioners, it is not for other medical professionals. It is for that reason I tabled my Amendment 664, so that anybody had to opt in to training for this, not just the medical practitioners, which I am very glad to see the noble and learned Lord’s amendment accepts. It is the others.

The noble Baroness is right that the opt-in provision that I have introduced is in relation only to the doctors. That is because it is the doctors who are given the particular role under the Bill. This says that you need to be trained before you can do particular functions under the Bill. That is why there needs to be an opt-in.

Equally, in relation to others, there is a no-detriment Clause if you say you will not participate; and depending on who you are, you can participate if you are any person not in the provision of the assistance. As you go wider, you have wider protections if you are, for example, a doctor or a healthcare professional.

Somebody who is employed by an agency, or an agency nurse, may not have the whole provision of the text in front of them, and they may not be encouraged to look into the exemptions for conscientious or other reasons about which we have heard. It is for that reason, if it is on the face of the Bill, that anybody involved in the medical or social care of frail people should know that they are entitled under law to opt out of such training.

I think we know the differences between us. I have set out what my position is. I am grateful to the noble Baroness for setting out hers again.

In relation to what the noble and learned Lord said in response to the noble Baroness, Lady Finlay, about not being rostered being a sensible solution, that is a different language from having a legally enforceable right to say to your employer, “I do not want to be rostered on that day”. Is that the correct position, as I understand it? Will the noble and learned Lord concede that these problems arise from the fundamental pillar of the Bill, which is that you can base this on the notion of autonomy, which is based on choice, but conscience is a different concept from that, and that is why we are in these difficulties?

I honestly do not think that these are difficulties. There is absolute clarity in the Bill as to what the legal position is, and it is a very wide exception. It is more than sufficient to give protection to people who do not want to participate in the provision of assistance under the Bill. Pushing it wider and wider simply gives rise to uncertainty. The key thing is that there should be certainty and sufficient width, and I believe that is what Clause 31 has done.

I do not think that the noble and learned Lord spoke to his Amendments 422, 423 and 888. It is possible that he could do that in another group at a later date, but I wanted to clarify whether he would make sure that he does that.

Amendments 422 and 423 are to create a regulatory power to allow co-ordinating doctors or independent doctors when they step down in certain circumstances not to have to give notice; for example, if they are too ill. It is a practical drafting change.

My Lords, in addressing the noble Lord, Lord McCrea, I think the noble and learned Lord was actually answering one of my questions on Amendment 679. I think the noble and learned Lord suggested that there might be a differentiation between NHS and private providers in the hospice sector. Does he see a scenario where people may feel reluctant or frightened to enter into an NHS hospice because it may be provided there? Will this not put more pressure on private providers?

The noble and learned Lord has rejected many of our amendments, arguing that they are not necessary because there should be totally equal access to the process. But is this not going to create a two-tier system where those who do not want to discuss assisted suicide and might be able to afford a private provider will be able to stay away from any discussions, whereas someone with less money will be forced to go into NHS provision?

No, I do not think it will because the nature of the safeguards in relation to everybody is such that the idea that an assisted death will be forced on people is wrong.

There is one last thing I would like clarification on. When the noble and learned Lord spoke about hospices, he said in a slightly confusing way that that did not necessarily refer to care homes. I am concerned about care homes that are run by organisations for which this is unacceptable. Are they going to be protected and be able to say that from the beginning, so that anybody going into a care home of that kind knows precisely the terms under which that care home is run?

The only organisational exceptions that I am contemplating—the exceptions in Clause 31 are for individuals—are in relation to hospices, not care homes.

I think the noble and learned Lord has just made a very important point. To clarify: he is saying that Clause 31(8)(b) would not apply in hospices; in other words, as drafted, the Bill would prevent a hospice as an employer from restricting doctors who were working for that hospice from also participating in assisted dying. If the hospice wanted, as a matter of philosophy or ethos, to say, “We do not want to be part of that”, is the noble and learned Lord saying that it would have an opt-out from Clause 31(8)(b)?

I am not sure I have understood the question. If the question is, “Can a hospice opt out from the opt-out?”, the answer is no. Can the hospice have a separate opt-out? That may be the position, but I need to consider how to deal with that.

To clarify, I think Clause 31(8)(b) prevents a hospice as an employer restricting its employees from participating in assisted dying if they do it somewhere else. Is the noble and learned Lord saying that he is willing to change that?

What I am thinking about is a provision that says if, as a hospice, you say you do not want to provide it, you should not suffer various sorts of institutional detriment. That is what I am interested in. I am not saying anything about Clause 31, because I am not understanding the noble Lord’s question, but that is what I am thinking about, to be clear.

I think what follows from that is that the noble and learned Lord is accepting the position that hospices will not be in a position to restrict their employees from participating in assisted dying, if they are doing that somewhere other than in the hospice.

That is correct.

My Lords, I thank all noble Lords for this extremely interesting and long debate. I do not think I can possibly sum up in any better way than the noble and learned Baroness, Lady Scotland, did. I felt that she summed up brilliantly the issues that have been raised over the last three and a half hours.

I will come back to the noble and learned Lord, the sponsor. He posed four responses. First, we all seem to be coalescing around the idea that the Bill should contain an opt-in, and he has given us Amendment 669A as his response. The mood of the Committee, if I may say so, is that that is not sufficient, and the mood of the royal colleges seems to be the same.

The second point was: is it wide enough? The resounding answer seems to be no. I am sorry, I always come back to practicalities in this Bill; although it is fine to refer to the clauses, it is about what is actually going to happen—how are people going to take these words and implement them? How would you say no? I am thinking about a busy ward where an assisted dying request is in process but someone does not want to participate. They might fear that speaking up at that point might be seen as obstructive or harm their chances of promotion. They might not have the confidence to speak up to their superiors, which would not be a healthy work dynamic. There is nothing in the Bill that allows that person to say, “I didn’t opt in to this”. An opt-in system would make it all agreed. Things would be known about before there was a crisis, people would have the right to change their minds and there would be a mechanism to do so. I am afraid that is where Amendment 669A fails, because how can you opt out later? Where is the provision for that?

The third point was about the register. I thank the noble Lord, Lord Moore, for his fantastic support. Where does someone go if the participating doctor does not want to participate? How do we know where they could go? The noble and learned Lord suggested that there might be a register at some point in the future, so I am going to take that small chink as, “That is not a bad idea”.

This point really bothers me: if we are not going to have a register because it might be public, what are we saying about the services in the Bill? If the public are going to throw brickbats at people for delivering this service then, as I think my noble friend Lord Harper said, there are other criminal places to come back at them. There are lots of things that medical professionals have registers for. The noble Lord, Lord Carlile, spoke about registers of specialists. Every single registered professional can be looked up publicly. It bothers me if we are not going to do something just because we are concerned about the response to the public.

The noble and learned Lord’s last point was on workability. I pay huge tribute to the noble Baroness, Lady Cass, for bringing us back to the patient’s journey. It has been a real flaw of the 13 days of our debate that this is possibly the first time we have actually walked through the patient’s journey through this process. I have no idea how a co-ordinating professional would fit in legally but it is a lovely idea. Understanding the patient’s ability to go through this process is important.

It strikes me that the people asking for clearer protections, clearer opt-ins and clearer understanding of what we should do are not the lawyers, who are all pointing to employment law—that is fine, but it takes us to tribunals, settlements and people having to choose between their career and their conscience—but the health, care and medical professionals, hospital porters and such people who will actually have to deliver the service. There is broad support for tightening the conscience clauses, and I urge the noble and learned Lord, if he is thinking about hospices, to think about some of these too. Please will he tighten it up? I beg leave to withdraw the amendment.

Amendment 189 withdrawn.

Amendments 190 to 192 not moved.

The noble Lord, Lord Shinkwin, will be taking part remotely. I invite the noble Lord to move his Amendment 193.