Stephen Kinnock
MP for Aberafan Maesteg · Labour · United Kingdom
“I thank the shadow Secretary of State for her kind words and look forward to our exchanges across the Dispatch Box. I am ready to engage with her on getting the maximum benefits for the people of Wales.”
“I thank the right hon. Lady and look forward to working with her. My understanding is that there were challenges around the helicopter capability. Decisions were taken by Natural Resources Wales some time ago to change the way that the tendering for helicopter capability works. We certainly need to look at that.”
“I thank my right hon. Friend for his question. Like him, I pay tribute to all those involved in the collective and heroic response to the wildfires.”
“I thank the right hon. Lady for her question. Many of the ideas coming forward for devolving power right across our United Kingdom, beyond Cardiff Bay and Holyrood, are very exciting, and I look forward to exploring them with her.”
“Just to be clear, this is not about staying out of the issue; it is about respecting the devolution settlement, but being prepared to work constructively where we can in partnership with the Welsh Government. The hon.”
“I know about and welcome the right hon. Gentleman’s strong connections to Wales. I recognise the connectivity benefits that WSMR’s proposal could deliver, particularly for passengers in Wales and the west midlands.”
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“I thank the hon. Member for Boston and Skegness (Richard Tice) for raising GP access, which is a vital matter to many of our constituents. I want to start by paying tribute to Laura Barlow’s family, friends and loved ones and to her husband Michael, who is in the Gallery. It is a terrible tragedy that Laura’s cancer was not caught earlier, and I absolutely agree with the hon. Gentleman that the significant number of people who signed the petition shows real strength of feeling on this heartbreaking case. When people are asked what their top priority for the NHS is, the chances are they will say, “Fix general practice” because GPs are the front door to our national health service. They are the first port of call for millions of people, and they perform a vital service by delivering care in communities across our country.”
“As a result, the amendment may mean that someone who is terminally ill and is residing in, for example, a care home or a hospice could be required to leave that care home or hospice in order to receive assistance under the Bill if the care home or hospice owner did not wish to allow assisted dying on their premises. That could engage a person’s rights under article 8 of the ECHR—the right to respect for private and family life.”
“That schedule enables an employer to specify that having a protected characteristic is a requirement of a job when having that characteristic is crucial to the post and a proportionate means of achieving a legitimate aim. The ability to specify occupational requirements is conferred by schedule 9 of the Equality Act, and reference to it in this amendment would not have any additional effect. The purpose of new clause 22 is to provide that the owners or occupiers of a premises would not be obligated to permit the self-administration of an approved substance on their premises. This right to refuse would not extend to a person who has an interest in the land but who is not occupying or operating on those premises, such as a landlord. It is unclear if the term “premises” would apply to a residential property, care home or hospice.”
“The first aims to ensure that employees cannot participate in the assisted dying process in the course of their employment if their employer has chosen not to participate in assisted dying. The effect of the amendment could be to limit the places where assistance would be provided, and it may result in inconsistent treatment for patients when seeking to access an assisted death. That could engage a person’s rights under article 8 of the ECHR—the right to respect for private and family life. The explanatory notes suggest that the second part of the amendment seeks to ensure that employers require employees to provide or not provide assisted dying under schedule 9 of the Equality Act 2010.”
“The effect of the amendment may be to limit the places where assistance could be provided. It may thereby reduce access to an assisted death for those residing within a care home or hospice, if a care home or hospice did not wish to allow an assisted death to be provided on its premises. The amendment could preclude some people from accessing services under the Bill if they were near the end of life and leaving their usual place of residence was therefore impeded. It may result in inconsistent treatment for patients when seeking to access an assisted death. That could potentially engage a person’s rights under article 8 of the ECHR—the right to respect for private and family life. Amendment 481 has two parts.”
“Amendment 484 is intended to expand the protection from being subject to a detriment by an employer at clause 23(2), to include where a registered medical practitioner or health professional refuses to participate in activity closely related to the provision of assistance. The term, “activity closely related to the provision of assistance”, is not defined, and that could create uncertainty as to what types of activity it is intended to cover. The Bill does not, as currently drafted, specify where the provision of assistance may or may not take place. Amendment 441 would prevent there being any obligation on a care home or hospice regulated by the Care Quality Commission or Care Inspectorate Wales to permit the provision of assistance to be carried out on their premises.”
“It states: “no individual is under any duty…to be involved, directly or indirectly, in the provision of assistance”, in accordance with the Bill. That may, for example, mean that although doctors are required under the Bill to notify a cancellation, they would be allowed to refuse to do things under the Bill, even if they have opted in to providing assisted dying services. It is not clear which provision would take precedence, which could allow the doctor to decline to notify a cancellation, by arguing that they are relying on clause 23(1). Amendment 483 is intended to extend “the range of activities which medical practitioners and other healthcare providers are not under an obligation to provide to include activities closely related to the provision of assistance” under clause 23(1).”
“The amendment also specifies that the ability not to participate in the provision of assisted dying does not override any duty to signpost someone to information about assisted dying; to perform clerical, secretarial or ancillary acts; or to perform life-saving acts or grave injury-saving acts. The amendment would introduce significant legal uncertainty and may mean that a person who had opted in to providing services under the Bill could refuse to continue to do so or could use clause 23 as a justification not to perform their duties as described in the Bill. For example, they may use the amendment as justification for not checking eligibility criteria, discussing prognosis or palliative care options, or performing other requirements under the Bill. Amendment 480 may also conflict with other provisions.”
“It is a pleasure to serve under your chairship this morning, Ms McVey, even though it is a little later than originally planned. Amendment 480 is intended to extend the category of those protected from being obligated to participate in the provision of assisted dying under clause 23 from registered medical practitioners, registered nurses and registered pharmacists or pharmacy technicians to all individuals. The amendment also seeks to clarify what an individual can refuse to do under clause 23(1), by setting out a non-exhaustive list of activities under the Bill that an individual would not be obligated to participate in.”
“As I was saying, the scope of the term “premises” is unclear. Is it residential property, care home, hospice or indeed hospital? That is one of the challenges with the drafting of the amendment: the scope and definition of the term is not clear.”
“Further amendment to the clause will be required on Report to ensure that the opt-out in clause 23(1) and the employment protections in clause 23(2) work effectively alongside the duties imposed on health professionals in other provisions of the Bill as amended in Committee. I hope those observations were helpful.”
“Equally, if a public authority gave funding to care homes or hospice providers in recognition of their agreement to provide or permit assisted dying on their premises, and that provider later decided not to provide or permit the assistance, and spent the funding on other matters, the public authority would not be able to recover the funding if it were given unconditionally. Clause 23 sets out that no registered medical practitioner or other health professional would be under any duty to participate in the provision of assistance in accordance with the Bill. It also sets out that employees cannot be subject to any detriment by their employer for exercising their right to either participate or not participate in the provision of assistance in accordance with the Bill.”
“As a result, a person who is terminally ill and is residing in a care home or hospice could be asked or required to leave that care home or hospice in order to receive assistance under the Bill, if that care home or hospice provider does not wish to allow assisted dying on their premises. In such circumstances, the care home or hospice provider would not be able to be placed in any detriment as a result of any action or decision taken. This could engage a person’s right under article 8 of the ECHR. Further, public authorities would not be able to persuade care homes or hospices to provide or permit assistance to take place on their premises by offering additional funding if they agreed to do so.”
“I agree with the sentiment of the hon. Gentleman’s intervention. The challenge is that the way in which the amendment is drafted could well lead to unintended consequences, because the scope is not clear. If we are not clear what the scope is, it could potentially be exponential. New clause 23 would prevent regulated care homes and hospices from facing any detrimental consequences for not providing or permitting assistance in accordance with the Bill. This also means that their funding must not be conditional on them providing or permitting such assistance to take place on their premises.”
“Proposed new subsection (1A) would create an exception to the exclusion of civil liabilities, providing that civil liabilities can arise in cases when an act is performed dishonestly or otherwise than in good faith, as well as in cases of negligence. Without this amendment, there is the possibility that clause 25(1) could provide blanket immunity to a person from all civil liabilities, even when they may have been negligent in their actions in providing assistance in accordance with the provisions in the Bill.”
“It is a pleasure to serve under your chairship, Mr Dowd. Well done for arriving on time, by the way. These amendments aim to ensure that, if passed, this legislation will be legally and operationally workable. I will offer a technical, factual explanation and rationale for them. Amendments 501, 502 and 503 replace clause 25(1) and instead provide that the provision of assistance in accordance with the Bill will, of itself, not give rise to civil liabilities in certain circumstances. Those circumstances are where an individual provides assistance in accordance with the Bill, where an individual performs any other function under the Bill in accordance with the Bill, and where an individual assists a person seeking to end their life under the Bill, in connection with the doing of anything under the Bill.”
“One possible interpretation is that the amendment may require the approved substances to be licensed by the MHRA specifically for the purpose of assisted dying. That would require additional powers to amend medicines regulations, which are not currently provided for in the Bill. NICE and the All Wales Medicines Strategy Group typically make recommendations only on medicines that have already been proven to be safe and efficacious. They do not approve medicines in the way the amendment implies, and this could infringe upon the role of the MHRA.”
“However, requiring, rather than enabling, the regulations under clause 28 to be made may reduce flexibility in terms of their timing as there is a range of technical issues that may need to be resolved—for example, clinical questions on how an approved substance should be prescribed or dispensed. Amendment 443 would mean that regulations for the prescribing and dispensing of approved substances could be made only in relation to substances that have already been approved by “the Medicines and Healthcare products Regulatory Agency and either the National Institute for Clinical Excellence or the All Wales Medicines Strategy Group”. That may impact the operational delivery of the Bill as the drafting is ambiguous.”
“It is a great pleasure to serve under your chairship today, Mrs Harris. Amendment 442 would require the Secretary of State to make regulations for the prescribing, dispensing, transporting, storage, handling and disposal of approved substances, including the keeping of records relating to those activities. That differs from the Bill’s current approach, which enables the exercise of a power by the Secretary of State to make such regulations. In practice, where the Secretary of State makes regulations specifying substances for the purpose of the Bill under clause 20, they will necessarily also make regulations for the prescribing, dispensing and transporting of said substances under clause 28.”
“My understanding is that the amendment would place the duty on a medical practitioner. I am speaking to the purpose and effect of the amendment, which is not about a regulator; it is about a medical practitioner. Does that answer my hon. Friend’s question?”
“Amendment 445 would require that the Secretary of State make regulations about enforcement, including provision of imposing civil penalties, when making regulations for prescribing, dispensing, transporting, storage, handling and disposal of approved substances, including the keeping of records relating to those activities. That would be a change from the current approach in the Bill, which gives a power to the Secretary of State to make such provisions. In practice, where the Secretary of State makes regulations specifying substances under clause 20, they will necessarily make regulations under clause 28 for the prescribing, dispensing and transporting of said substances, and on enforcement, which would include imposing civil penalties.”
“Gentleman’s question is basically yes, but the right place to debate it and potentially amend the Bill would be in clauses 32 to 39.”
“We will at some point get to clause 32, which is about the way in which the system will work, specifically with the NHS, and the role of regulation will absolutely be debated in that context. My sense is that it would be best to confront that issue when we debate clauses 32 and 39. Officials are currently working with the promoter of the Bill, my hon. Friend the Member for Spen Valley. We know that her policy intent is for the service to be an integral part of the NHS, but with some flexibility in the way it is delivered; we have briefly touched on that in previous debates. As an integral part of the NHS, it will have to be a regulated service, based on the foundations of the way in which the NHS is regulated more broadly. I think the answer to the hon.”
“However, the requirement for active debate in both Houses of Parliament as a result of the amendment would extend the timeline to make or change regulations. Amendment 485 is similar. It would alter the requirement in clause 28 that regulations governing prescribing, dispensing, transporting, storage, handling, disposal and records relating to these activities of approved substances are subject to the affirmative procedure, instead of the negative procedure as drafted. Similar to the change of procedure proposed by amendment 521, the affirmative procedure would extend the timeline to make or change regulations. That is the end of my observations. I hope they were helpful to the Committee.”
“Thank you, Mrs Harris; you have helped me to answer the hon. Gentleman’s question in a far more pithy and direct way than I could have. I think it is best for us to wait for us to discuss clauses 32 and 39, when we can really get into the meat of the precise issue he raised. Amendment 521 would change the requirements in clause 28 so that regulations governing the prescribing, dispensing, transporting, storage, handling, disposal and records relating to these activities of approved substances under the Bill must be laid in draft form and approved by resolution in each House of Parliament. This is a change from the current requirement in the Bill that the regulations are subject to the negative procedure. Both procedures are subject to Parliamentary scrutiny.”
“The amendment has little practical effect, because clause 30(1)(e) already provides a wide power for issuing codes of practice, providing that the Secretary of State may issue codes of practice on “such other matters relating to the operation of this Act as the Secretary of State considers appropriate.” Amendment 523 allows the Secretary of State to issue further codes of practice at his discretion, should they not be covered by the preceding subsection (1) of this clause. The Bill’s promoter has said she is minded to support amendment 447, and the hon. Member for East Wiltshire asks whether, if amendment 447 is incorporated into the Bill, that renders amendment 523 unnecessary or surplus to requirements. I am not entirely sure, so I will quickly check while the Bill’s promoter is making her remarks and come back to him immediately.”
“However, the amendment does not state who or what such a registration would be with, or what would constitute a recognised and appropriate level of qualification. Amendment 534 adds to the list of codes of practice that the Secretary of State may issue. The addition is a code of practice on the acceptable forms of proof of identity when a person makes a first declaration. Clause 6(3) of the Bill already provides a regulation-making power that sets out the acceptable forms of proof of identity. Amendment 534 would give the Secretary of State a power to make codes of practice about how someone can ensure they are compliant with the requirements set out under clause 6(3).”
“I note that under the Equality Act 2010, health providers are already under a duty to make reasonable adjustments in the provision of services, including for persons with a learning disability. That duty includes taking steps to provide information, including on what support services are available. As drafted, clause 30(1)(c) provides that the Secretary of State may issue codes of practice on “the arrangements for ensuring effective communication in connection with the provision of assistance…including the use of interpreters”. Amendment 448 provides that, if the Secretary of State issues codes of practice that include the use of interpreters, those interpreters should be “registered and qualified”. The amendment would limit those who are able to translate to only those who are registered and have a recognised qualification.”
“This group of amendments relates to clause 30 of the Bill and the codes of practice that may be issued by the Secretary of State. As the Bill is drafted, the Secretary of State may issue one or more codes of practice in connection with arrangements pertinent to the assisted dying process. Amendment 447 requires the Secretary of State to issue such codes, substituting “must” for “may”. As such, codes of practice would need to be issued for all matters listed in clause 30(1). Amendment 394 has the effect of broadening to Secretary of State’s power to issue codes of practice, explicitly enabling the Secretary of State to issue guidance in connection with “information and support to persons with learning disabilities who are eligible to request assistance” under the Bill, including information and support about the role of advocates.”
“It is also unclear how a person would be determined to be a qualifying person, as the definition is quite broad and encompasses a wide range of people with varying support and advocacy needs. Finally, although the new clause would enable provisions to be made about payments of independent advocates, it is not clear who would make these payments or how they would be funded. I hope those observations were helpful to the Committee.”
“A qualifying person is defined in the new clause as someone who has a learning disability, a mental disorder as defined under the Mental Health Act 1983, or autism; or who might experience substantial difficulty in understanding the processes or communicating their views, wishes or feelings; or who meets criteria specified by the Secretary of State in regulations. Although the new clause would require the Secretary of State to make regulations about the appointment of independent advocates, there is discretion as to what those regulations should include. The new clause sets out a non-exhaustive list of the things that the regulations may provide. The effect of this is that the new clause leaves open who would be obliged to ensure that an independent advocate is present and the precise nature of the obligations around their appointment.”
“Amendment 517 relates to new clause 25, which I will come to next. The amendment would make provision for the Secretary of State to issue a code of practice regarding arrangements for a qualifying person to receive the support of an independent advocate, as set out under new clause 25. The new clause would require the Secretary of State to make regulations about the appointment of independent advocates. The role of the independent advocate would be to provide support and advocacy to a qualifying person seeking to understand options around end-of-life care, including the possibility of requesting access to assisted dying.”
“I hope those observations are helpful to the Committee.”
“I will speak on amendment 524, in the name of the hon. Member for East Wiltshire. As the Bill stands, a person is required to “have regard to” any codes of practice issued by the Secretary of State when performing a function under the Bill. Amendment 524 would mean that individuals are instead required to “comply with” the codes of practice issued. That could limit someone to doing only what is specified in the code, rather than allowing them to exercise their professional discretion to perform the function in the most appropriate way, having given regard to the code. It is also unclear from the amendment who would monitor or enforce compliance with the codes. Codes of practice are normally detailed practical guidance on how to comply with legal obligations, and are generally not legally binding.”
“On this clause, we intend to support the development of further such technical amendments on Report. Where amendments are required to clarify the obligations in relation to the preparation of guidance, we will work with the promoter to ensure that MPs receive good notice to give them adequate time for consideration. I hope those observations were helpful for the Committee.”
“This could imply that those with learning disabilities would not already be included in one of the categories already listed, namely “persons requesting or considering requesting assistance to end their own lives…next of kin and families of such persons” and “the general public.” Clause 31 sets out a duty on the chief medical officers for England and Wales to publish public-facing guidance relating to the operation of the legislation. It has rightly been a matter for the Committee to determine amendments to the clause, and the Government will respect the will of Parliament. As Members will know, the Government have been working with the Bill’s promoter, my hon. Friend the Member for Spen Valley, on amendments to ensure that, if passed, the legislation will be legally robust and workable.”
“Clause 31(2) provides that, before preparing guidance under the clause, the relevant CMO must consult such persons as they consider appropriate. Amendment 395 would add a duty for the CMO to consult persons with learning disabilities before preparing such guidance. That may call into question why other specific groups are not expressly listed. Amendment 396 would include persons with learning disabilities as an additional category of people to which the CMOs must have regard in relation to preparing practical and accessible information, advice and guidance under clause 31. The effect would be to include persons with learning disabilities as a specific category of people in addition to the listed categories.”
“The effect of this amendment is unclear. As drafted, clause 13(2)(b) sets out that where the person’s death is likely to occur within one month, the period of reflection is then 48 hours. Amendment 316 sets out that the referral to urgent palliative care must be made alongside the co-ordinating doctor making the statement, which is the last step to be completed before the provision of assistance under clause 18. That would mean that in some circumstances, there may be insufficient time to make a referral before the person is provided with assistance to end their life.”
“Friend the Member for Spen Valley on certain amendments to bolster the legal and workability sides of the Bill, and the purpose of amendment 471 is to clarify that the co-ordinating doctor needs to be satisfied that, immediately before witnessing the second declaration, the criteria set out at subsection (4) are met, and not at any time before. That also ensures consistency with the duty on the co-ordinating doctor in respect of the first declaration. Amendment 316 would require that where the co-ordinating doctor reasonably believes that the person seeking assistance has less than one month to live from the court declaration, they must refer that person for urgent specialist palliative care. As the referral must be made whether the patient wants that referral or not, this may result in unwanted referrals.”
“It is a pleasure to serve under your chairship, Ms McVey. The purpose of amendment 457 is to exclude a person who has less than one month to live from being eligible for the shorter second period of reflection of 48 hours if that person has voluntarily stopped eating and drinking. That person would instead be required to comply with a second period of reflection of 14 days under clause 13(2)(a). The amendment could create uncertainty as to the required length of the period of reflection. It is unclear, for example, if “voluntarily” would include where someone’s appetite has naturally declined as they approach the end of life, and therefore whose decision to stop eating or drinking may not be deliberate. As I have said previously, the Government have worked with my hon.”
“I happened to be at a hospice in Stafford yesterday on a ministerial visit and was extremely impressed by the work that the hospice staff were doing on family counselling, and advice and engagement both with the patient and family and loved ones, so the right hon. Gentleman is right that the hospice sector, among others, plays a vital role in that holistic engagement with patients throughout the process. Amendment 374 requires that the co-ordinating doctor must notify the voluntary assisted dying commissioner where they witness a second declaration and where they make or refuse to make the supporting statement under clause 13(5), and that the commissioner must be provided with a copy of the second declaration and any statement. I hope that those observations were helpful to the Committee.”
“The Government have worked with my hon. Friend the Member for Spen Valley on amendments 375 and 376. The amendments require that where the co-ordinating doctor, or any registered practitioner from the person’s GP practice, receives a notification or indication from the person seeking assistance under the Bill that the person wishes to cancel their first or second declaration, the doctor or practitioner must inform the voluntary assisted dying commissioner as soon as practicable. Where a registered practitioner from the person’s GP practice has received a notification or indication from the person to cancel their first or second declaration, they must also inform the co-ordinating doctor. I hope those observations are helpful to the Committee.”
“That is not automatic and means that not all attorneys would be able to meet the eligibility requirement of the amendment. Thirdly, the Mental Capacity Act 2005 enables an attorney to exercise power under an LPA only if and when someone has lost capacity.”
“Amendment 321 would require a proxy to record, when signing the declaration on behalf of the person, the reason why the person they are acting as a proxy for is unable to sign their own name. The recording of the reason may make the use of a proxy more transparent. It may also assist others involved in the scrutiny of the process to understand why a proxy was used. Amendment 431 seeks to restrict who can be a proxy under the Bill to attorneys with a lasting power of attorney, or LPA, for health and welfare decisions—that is, those people who are able to consent to or refuse life-sustaining treatment. The amendment raises significant practical issues. First, not everyone has an LPA. Secondly, where a person has made an LPA, they will have decided whether to give the attorney the authority to refuse or consent to life-sustaining treatment.”
“I am not a lawyer, but thankfully I am sitting next to a very eminent and distinguished one—my hon. and learned Friend the Member for Finchley and Golders Green—who has confirmed that everything the hon. Member for East Wiltshire said was correct from a legal standpoint, so I shall leave it at that. Clause 15(5) of the Bill defines a proxy as “(a) a person who has known the person making the declaration personally for at least 2 years, or (b) a person who is of good standing in the community.” Amendment 473 would remove subsection (b) from the definition of proxy, instead introducing a regulation-making power to specify the persons who may act as proxy. That would avoid any ambiguity around the meaning of a person who is of good standing in the community and retain flexibility to amend the specified list in regulations.”
“I would not want to pre-empt the regulations, because clearly that is the point of the process. If this Bill gets Royal Assent, we then move on to making regulations, and I have confidence in the good offices of parliamentary counsel, legal advice and the drafting process. I absolutely agree with the hon. Gentleman, however, that the purpose of those regulations must be to remove ambiguity, not to increase it. I am confident that the system will produce regulations that address his concern.”
“I note that the cancellation of a declaration is governed by clause 14, and the cancellation may be given orally, via writing, or “in a manner of communication known to be used by the person”. It does not require the signature of the person seeking assistance under the Bill, so a proxy may not be required for some people in relation to revoking a declaration, even if they have been required under clause 15.”
“I am acutely conscious that every word we say in this Committee is on the record. My hon. Friend makes a valid point in that context. The purpose of amendment 253 is to clarify that a person acting as a proxy can both sign and revoke a declaration on behalf of a person seeking assistance under the Bill. This amendment would extend the provisions under clause 15 to a person who is acting as proxy to the person seeking assistance under the Bill, enabling the proxy to act on behalf of the person to cancel their first or second declaration if they are unable to sign their own name by reason of physical impairment, being unable to read or for any other reason.”
“The regulations will have primacy, and will be shaped by a range of inputs, including the conversation we have just had in Committee. The process is that the Bill gets Royal Assent, then the regulations are drawn up based on a range of consultations and inputs—including the Hansard . The regulations then become the basis on which this proxy process is managed, enforced and executed.”
“The Bill, once it becomes an Act, places a legal duty on the Secretary of State to produce those regulations. The Secretary of State would be in breach of the law if he were not to enforce the conclusions of the Act.”