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 have discussed this with parliamentary counsel and others, and the concern is that a blanket provision of this nature may well be premature at this stage. Until we have finalised and determined the constitutional nature and impact of each clause, putting a blanket provision in place may run counter to that process.”
“I would like to put on the record the Government’s continued commitment to devolution and to working with the devolved Governments. Having taken a neutral position on the Bill and the matter of assisted dying, the Government are still committed to working with the Welsh Government to resolve legal and technical issues and discuss constitutional matters that might arise thoughtfully and amicably. With regard to the phrase “appropriate authority”, the challenge is that in each case throughout the Bill the appropriate authority would be determined by the devolution position of the clause in question—what is the underlying question that the clause seeks to address, and is that a reserved or devolved matter?”
“Amendments 144 to 171, tabled by the right hon. Member for Dwyfor Meirionnydd, relate to the powers and duties vested in the Secretary of State under the Bill. The purpose of the amendments is to change all references throughout the Bill from “Secretary of State” to “appropriate authority”. Amendment 169 defines “appropriate authority” as the Secretary of State in relation to England and as Welsh Ministers in relation to Wales. I note the intent of the promoter of the Bill, my hon. Friend the Member for Spen Valley, that the Bill’s provisions extend and apply to both England and Wales. The amendments would mean that all the powers and duties vested in the Secretary of State are instead shared between the Secretary of State where they relate to England and Welsh Ministers where they relate to Wales.”
“It is, of course, the right hon. Lady’s prerogative to press amendments as and when she sees fit. I am simply flagging that terminology such as “appropriate authority” risks tying the hands of the legislative process in a way that could have perverse outcomes. A clause that should be the lead responsibility of Welsh Ministers could instead end up in the hands of Secretary of State due to the lack of clarity or relative vagueness of the term “appropriate authority”. The Government’s suggestion is to work through each clause and be specific about the lead responsibility in each case—is it the Secretary of State or Welsh Ministers? We are open to discussing whether it is better to do it that way or with the terminology “appropriate authority”; we are simply flagging that there are risks associated with that term.”
“Yes, absolutely, and before Report. Let us ensure that we do that, and that parliamentary counsel is in the room. I am not a constitutional lawyer, so we definitely need people in the room who can speak to these issues. Of course, it also needs to be done in close dialogue with colleagues in the Welsh Government, particularly given what was said earlier about the need for a legislative consent motion.”
“It could create difficulty if the requirement were to apply to NHS providers, as a doctor is unlikely to know the total turnover from providing an assisted dying service. As the Bill’s promoter, my hon. Friend the Member for Spen Valley has said that her intent is to ensure that the assisted dying service is available as an integral part of the NHS. Officials are working on amendments to later clauses to establish the operating model for her consideration.”
“Amendments 360 and 361 introduce requirements on the co-ordinating doctor. Amendment 360 would insert an additional condition into the definition of a co-ordinating doctor and would require a co-ordinating doctor who receives financial payment for providing assisted dying to make an annual statement declaring publicly their total turnover from providing the service, the number of people they have assisted and any other information specified in regulations. The related amendment 361 would require that any regulations specifying the information to be made available must be subject to the affirmative procedure. It is not clear whether the amendments are intended to apply to both private and NHS providers.”
“We are drawing a distinction here with what the tariff could and should be, which we will need to discuss alongside the operating model in later clauses. Moving from being transparent on the tariff to saying, “That doctor over there made this much money from providing this service,” is a whole new ball game.”
“As my hon. Friend the Member for Stroud has just said, the picture is very complex because there are tariffs for services. Doctors receive a tariff for each service across the entire panoply of everything they do, particularly general practitioners who provide a very wide range of services. They are remunerated on the basis of a tariff that is negotiated in the GP contract between the Department of Health and Social Care and, primarily, the BMA. When a doctor operates in that environment, it is difficult to pick out their turnover from a particular service. As my hon. Friend the Member for Stroud said, picking out an individual doctor and saying how much money they have made from a particular service, whether assisted dying or any other service, would put a particular focus on that doctor.”
“Total turnover is one side of this issue; the other, much more salient point is the quantum leap between having transparency on a particular tariff and pointing at a specific doctor and saying, “You over there—you did this much work on that much tariff, and that’s how much money you made for it.” There is a big difference between the two.”
“The challenge in the hon. Gentleman’s amendment is the term “total turnover.” A GP would have to extrapolate from the service provided to a whole range of other costs that may apply—for example, the share of the overhead they pay into their primary care network, the share of admin costs or the rent on their building. The definition of total turnover is the entire cost and entire revenue from the tariffs. As officials have made clear, this additional level of complexity would be an onerous task, although not necessarily impossible.”
“It would of course be deeply regrettable if there were to be threats or risks to doctors, but the evidence from other countries suggests this has not led to some of the deeply unfortunate things we have seen around abortion clinics, for example. It does not seem to have led to that, but of course we as a Government always need to be vigilant in monitoring all our services to ensure that our excellent medical professionals are getting the support they need.”
“If we are specifically talking about the amendments tabled by the hon. Member for East Wiltshire, he is saying that the total turnover from providing this service should be publicly available—it should be published—so I assume he thinks it should be on a website that everybody can see. My hon. Friend the Member for Bradford West is asking about the knowledge that, if someone wishes to seek an assisted death, they can go to a particular practitioner or service. That is baked into the Bill, and clearly those doctors who wish to opt into the service will be doing so with their eyes open—they will know that they are providing that service. We must ensure that doctors feel protected if there is a sense of risk.”
“I agree. Like any other aspect of what doctors and general practitioners do, this service is based on remuneration. They are professionals and should be remunerated as such, so the tariff will be important. It is also important that we do not jump ahead into defining the operating model. As I said, officials are working on this with the Bill’s promoter, and it will be made clear when we get to the relevant clauses.”
“As I have repeatedly said, the Government are neutral on the fundamental question of the Bill, but we are absolutely committed to ensuring it is workable should it receive Royal Assent. The role of the commission will be pivotal in ensuring that the Bill is workable and that all the necessary monitoring and regulation mechanisms are in place.”
“These comments relate to the legal and regulatory side of the Bill, and I hope that my observations are useful to the Committee.”
“(5B) Any other statutory instrument made by the Secretary of State containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.” The amendment would require that any regulations made under those provisions must be laid before, and approved by, a resolution of both Houses of Parliament. This procedure, the draft affirmative procedure, will apply to regulations setting the training, qualifications and experience of both the co-ordinating and the independent doctors, establishing a code of practice and securing arrangements for the provision of assisted dying under the Act. Any other statutory instrument made under powers within the Bill will remain subject to the negative procedure. As I have said, the Government have taken a neutral position on the substantive policy questions.”
“There are provisions throughout the Bill, as it is currently drafted, about the procedure for making regulations. All regulations, except for those made under clause 5(3)(a), clause 8(6)(a), clause 30(3) and clause 32, are required to be made under the negative procedure. Amendment 233 would bring together the various provisions about the procedure for making regulations into a single clause, clause 39, thereby removing repetition in the Bill. The amendment seeks to achieve that by replacing subsections (3) to (5) in clause 39 with the following: “(5A) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) regulations under section 5(3A), 8(6A), 30(3) or 32 unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
“In addition to retaining the existing duties to consult before making regulations in clauses 5, 8 and 19, the new clause requires the Secretary of State to consult before making regulations under clauses 7, 13 and 21, and brings together these requirements under a single duty. The new clause would place an additional requirement on the Secretary of State to consult the Equality and Human Rights Commission, as well as such other persons that the Secretary of State considers appropriate. The latter group must include persons with expertise in matters relating to whether persons have capacity or have been coerced, unless it would not be appropriate to consult such persons. I turn to amendments 233, 188, 192, 215 to 219, 222, 225, 226, 212, 213, 200 and 206.”
“It is a pleasure to serve under your chairship, Mrs Harris. The amendments have been tabled by my hon. Friend the Member for Spen Valley in consultation with the Government. This reflects the Government’s role in ensuring that the Bill is legally robust and workable. The amendments relate to the regulation-making powers and bring together various provisions about procedure and requirements for regulations and consultation. I will address the amendments in two groups, starting with new clause 8 and its consequential amendments 187, 199 and 211. The new clause contains a duty to consult before making regulations; it is intended to consolidate three subsections that contain duties to consult before making regulations, as set out in the original draft of the Bill under clauses 5, 8 and 19.”
“Requiring a person to provide proof that they have been resident in the UK for at least 12 months appears to impose a different residency requirement to other parts of the Bill. Specifically, “being resident” is a looser test than being “ordinarily resident”, in clause 1, and “in the UK” is broader than “in England and Wales”, also in clause 1. In consequence, our assessment is that this amendment may make the Bill less legally coherent.”
“Amendment 419 requires that, before witnessing the first declaration, the co-ordinating doctor must be satisfied that a preliminary discussion has taken place, whether that was conducted by the co-ordinating doctor or another registered medical practitioner. The co-ordinating doctor must also have made or seen a written record of the preliminary discussion. Amendment 291 adds to the requirement around proof of identity when making a first declaration. It requires that one of the forms of ID provided to the co-ordinating doctor and witness be photographic. The person must also provide proof of residence at this stage of the process. I note we would expect this type of issue to be considered by the Secretary of State when making regulations about forms of proof of identity that are acceptable, as already provided for in clause 6(3).”
“This amendment would make it clear that a person must provide two forms of proof of identity before signing the declaration, rather than simply at the same time. That ensures that both the co-ordinating doctor and the witness have received the necessary proof before the declaration is signed. Amendment 191 ensures that the co-ordinating doctor can witness the first declaration only if they are satisfied that the person has provided two forms of proof of identity. The doctor must therefore first be satisfied that the required proof has been given to them and to the witness before proceeding with witnessing the signing of the declaration.”
“This group of amendments refines the requirements related to the first declaration, clarifying the witnessing process, identity verification and regulatory obligations. I will take the amendments in turn. In executing our duties to ensure that the legislation, if passed, is legally robust and workable, in this group the Government have worked with my hon. Friend the Member for Spen Valley on amendments 189 to 191 and 419. Amendment 189 would clarify the requirement for proof of identity when making a first declaration. It would adjust the wording to make it clear that proof of identity must be provided before a person signs a declaration, ensuring no ambiguity about when the requirement applies. As with amendment 189, amendment 190 clarifies the requirement for proof of identity when making a first declaration.”
“Yes, I believe so. Photographic ID would be the standard to which we would aspire. I do not know whether there was anything else under her question? I think the answer is yes.”
“Amendment 293 ensures that regulations on acceptable forms of proof of identify must be approved by both Houses of Parliament before coming into force, by requiring these regulations to follow the affirmative rather than the negative procedure. As I said earlier, the Government’s position is neutral, but I hope my observations—”
“I thank my hon. Friend for that intervention. We have the term “ordinarily resident” in the UK in clause 1. Obviously if the Committee sees fit to accept the amendment it would change to “resident”, which is a looser term. This matter would also be one for the Home Office, as the custodian of our rules and regulations on immigration, but my sense would be that if we stick with “ordinarily resident” then someone who is not ordinarily resident in the United Kingdom would not qualify for assisted dying. As the Bill currently stands, the Secretary of State has the power but not the obligation to set these requirements in regulations. This amendment would remove this discretion and require the Secretary of State to specify what forms of ID must be provided.”
“I thank my hon. Friend for that intervention. She makes a very good point. It is definitely something that needs to be explored, to ensure that people are not being excluded for the reasons she set out. It is a different example, but when voter ID was introduced a special ID card was created by the Government to cater for exactly the situation she set out. We have to find a way of ensuring that people are not excluded because of that technicality. She makes a valid point.”
“This section of the Bill covers the issue of ID and says that proof of ID is required. I am simply responding to the requirements of the Bill. I am more than happy to have a debate about ID cards and all sorts of other issues more broadly—”
“I look forward to having that debate on another day. Unless other colleagues want to intervene, I will now sit down, to the delight of the Chair.”
“Our assessment suggests that in most circumstances, although it would depend on the facts of a particular case, the requirement to do an action as soon as practicable would generally amount to a requirement to do the action sooner than in 10 working days’ time. In terms of the operational effects, having a set timeline may give greater certainty to individuals seeking assistance. However, it may limit doctors’ discretion to set the timeline based around the patient’s wishes. These are matters for the Committee to weigh up and consider.”
“The effect of the amendment may be to lengthen the period between the first declaration and the first assessment, in some cases. Amendments 127 to 141 seek to ensure that the assessments, declarations and statements made throughout the Bill are finalised and recorded within 10 working days of being started. The amendments achieve this by inserting the term “within 10 working days” in place of “as soon as reasonably practicable” in clauses 7, 8, 16, 17, 21 and 22. This would put in place a time-bound limit that the medical practitioner must adhere to when carrying out the first and second assessments, when recording information in medical records at various stages, including the High Court declaration, and when recording other matters in medical records.”
“These amendments introduce requirements on the timing within which the co-ordinating doctor must carry out a first assessment once the first declaration is made by a person. I will turn first to amendment 296. As currently drafted, clause 7(1) requires that the co-ordinating doctor must carry out a first assessment “as soon as reasonably practicable” after a person has made a first declaration. Amendment 296 would require that after the first declaration is made, the co-ordinating doctor must arrange a mutually convenient time and date for the first assessment to take place, but it removes the stipulation that the assessment must be carried out as soon as reasonably practicable. The amendment would also require the date and time agreed not to jeopardise the care of other patients.”
“Amendment 6 would require the assessing doctor to refer all cases where there is doubt about mental capacity for an assessment by a doctor who is an expert in psychiatry. This is a power, as currently drafted, but the amendment would make it a duty. Requiring, rather than permitting, the assessing doctor to make a referral when capacity is in doubt would remove their discretion on whether to refer a person to a doctor who is an expert in psychiatry. Instead, it would be required in all cases where there is doubt about capacity.”
“Amendment 284 would require the co-ordinating and independent doctors to, in all cases, refer the person seeking assisted dying to a psychiatrist for an assessment of their mental capacity. Although that is set out in the explanatory note from my hon. Friend the Member for York Central, the amendment does not specify the type of assessment that is required. Putting aside specification of the type of assessment, the overall intention of the amendment is that, in order to be eligible for assisted dying, a capacity assessment would always be required, irrespective of whether there is a proper reason to doubt that the person has capacity. That would differ from the Mental Capacity Act, under which capacity is presumed unless it is established that the person lacks it.”
“In practice, the amendments would represent a change at the medical assessment stage from requiring two professionals to requiring three. They also represent a departure from usual practice for professionals applying the Mental Capacity Act 2005. The requirement to interview the person and write a report that must, in all cases, address capacity may amount to an assessment of capacity in itself. That would undermine a core principle of the Mental Capacity Act, which is the presumption of capacity. In addition, the test of capacity set out in the amendments is more limited than the test of capacity under the Mental Capacity Act. It covers only capacity to understand information, not capacity to retain, use or weigh it.”
“It could create uncertainty for the co-ordinating doctor in carrying out the first assessment. Amendment 14 would require the co-ordinating doctor, when making the first assessment, to take into account an additional report. The report would be made by a qualified person and would cover duress and/or coercion, communication needs and capacity. It would be informed by an interview between the specialist and the person applying for assistance to end their own life. The specialist must have expertise in psychiatry or other qualifications set out in regulations. There are various exclusions aimed at avoiding conflicts of interest. Amendment 15 would similarly require that the independent doctor, in making the second doctor’s assessment, takes the report into account. Amendments 16 to 19 are consequential to amendment 14.”
“Amendment 347 would change the co-ordinating doctor’s role from ascertaining whether, in their opinion, the criteria in clause 7(2) are met to instead ensuring that steps have been taken to confirm that those criteria are met. Its practical effect would be that the co-ordinating doctor could rely on the assessment of other, non-specified, persons to confirm that the eligibility criteria have been met. Amendment 294 provides that the co-ordinating doctor, in ascertaining whether, in their opinion, the criteria in clause 7(2) are met, would be required to base that assessment on evidence that has been provided. It does not specify who would provide the evidence, what types of evidence would be considered acceptable or whether the co-ordinating doctor could disregard evidence if they consider it appropriate to do so.”
“Thank you so much, Mrs Harris—I will try again. Although it is up to Parliament to pass or reject this Bill, the Government remain committed to ensuring its legal robustness and workability. For that reason, we have worked closely with my hon. Friend the Member for Spen Valley, and we have mutually agreed some amendments, including amendments 370 and 202. This group of amendments relates to the assessment process for determining a person’s ability to make a first declaration. I will take them in turn. As the Bill stands, the co-ordinating doctor is responsible for ascertaining whether, in their opinion, a person applying for assistance to end their own life has met the eligibility criteria in clause 7(2), as part of the first doctor’s assessment.”
“The meaning of other conditions outside of mental disorder is also unclear. For instance, it might include a physical condition, and it is unclear how this would interact with the Bill’s provisions on terminal illness. I hope those observations were helpful for the Committee.”
“The purpose of these amendments is to prevent someone with an impairment of judgment arising from a mental disorder or other condition from being able to access assisted dying. Impairment of judgment is an uncertain legal concept that is far wider than the current test of capacity, which requires that the person must be unable to make a specific decision, and “impairment of judgment” is not defined in the amendment. Under the Mental Capacity Act 2005, the inability to make a decision must be directly caused by “an impairment of, or a disturbance in the functioning of, the mind or brain.” However, under the amendments, the requirement is merely that the inability to decide must arise from such an impairment or disturbance, making the threshold significantly broader.”
“The amendment would add a separate, potentially overlapping requirement on the assessing doctors and the court to assess whether there were no real risk. That could create uncertainty for the assessing doctors as to what is additionally required. I hope those observations were helpful to the Committee.”
“The amendments seek to ensure that an individual requesting assistance to die will not be able to do so if there is a real risk that the eligibility criteria have not been met. The Bill provides in clauses 7, 8, 12, 13 and 18 that where the assessing doctor or court is satisfied that, in their opinion, the eligibility criteria that they are charged with assessing have been satisfied, they must complete the next relevant step required by the Bill. If, however, the assessing doctor or court are not satisfied that the eligibility criteria that they are charged with assessing have been met, they must not take the next steps set out under the Bill. Our assessment is that, as drafted, this group of amendments could create uncertainty as to what the assessing doctors are required to assess.”
“Amendment 21 would require that a registered medical practitioner could act as an independent doctor only if they have undertaken training on identifying domestic abuse. Should this amendment be accepted, it would require setting up training mechanisms to equip registered medical practitioners who want to act as independent doctors with the knowledge and skills needed to identify domestic abuse, including coercive control and financial abuse. I hope those observations were helpful for the Committee.”
“It may be helpful to note again that, regardless of this amendment, under the Welsh Language (Wales) Measure 2011, the NHS in Wales has a statutory duty to deliver its services to the public in both Welsh and English. That legislation gives the Welsh language official status in Wales, and it states that individuals in Wales “should be able to live their lives through the medium of the Welsh language if they choose to do so.” The Welsh Government’s active offer for health is intended to support all staff across NHS Wales to provide a service in Welsh for patients without them having to ask for it. Of course, I will add that we have agreed to have further discussions on these points with the right hon. Member for Dwyfor Meirionnydd, and I look forward to them.”
“The objective of the mental health assessment is to ensure that the person is medically diagnosed as being “of unsound mind” and so comes within the scope of article 5 of the European convention on human rights, the right to liberty. The purpose of amendment 428 is to impose an obligation to take all reasonable steps to ensure that the independent doctor is proficient in the Welsh language, if services or functions in the Bill are to be provided to an individual in Welsh in Wales. This mirrors amendment 427, which we have already debated. The amendment does not make clear who is obliged to ensure that these steps are taken or who will assess and enforce whether “fluent proficiency” is met. This may reduce the pool of registered medical practitioners able to carry out the function of an independent doctor under the Bill.”
“Amendment 198 specifies: “The regulations must include training about…assessing capacity” and “assessing whether a person has been coerced or pressured by any other person.” Under amendment 58, the second independent doctor would have to be an approved medical practitioner under section 12 of the Mental Health Act. A section 12 -approved doctor is “a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder”. Their role is to make a medical recommendation, which is part of the process of determining whether someone is liable to be detained under the Act. Section 12-approved doctors are also eligible to carry out mental health assessments as part of the deprivation of liberty safeguards under the Mental Capacity Act.”
“The amendment intends to make it a requirement that the second assessment is conducted by “a registered medical practitioner who is registered in the specialism of psychiatry”. Operationally, focusing on one medical specialty may have workforce implications that the Government would need to work through, should this Bill pass with that amendment. Amendment 197, along with amendment 198, place “a duty on the Secretary of State to make regulations about the training, qualifications and experience required in order to act as the independent doctor.” The Government have worked with my hon. Friend the Member for Spen Valley on these amendments to ensure that the legislation is robust and workable.”
“Members should be aware that the Mental Health Bill before Parliament, which will soon leave the Lords and come to this place, includes plans to strengthen and clarify the criteria for detention. Amendment 57 would require the independent doctor to undertake the second assessment jointly with the co-ordinating doctor. If they are unable to, they would be required to confer before completing the assessment. In the Bill as currently drafted, the second assessment is intended to be conducted independently of the first. I now turn to the famous amendment 1. As the Bill is currently drafted, the second doctor, known as the independent doctor, must be a “registered medical practitioner” who “has such training, qualifications and experience as the Secretary of State may by regulations specify”.”
“Under amendment 56, the second independent doctor would be required to assess whether the person seeking assisted dying would be liable for detention under the Mental Health Act 1983. If they are liable to be detained, the necessary statement cannot be made for the assisted dying process to continue. Assessment under the Mental Health Act requires consideration of someone’s mental disorder and the risk of harm they present to themselves or others if they are not admitted and/or treated for their mental disorder. Someone can be detained under the Mental Health Act both with and without capacity. Many people could be considered liable to be detained, but would not actually be detained if, for example, they could receive treatment for their mental disorder in the community.”