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 think it reflects the fact that, as the Committee has agreed, we are in uncharted territory on a whole range of issues here. I think it is best to think through the implications of every amendment. If it passes, every clause of the Bill will have to be assessed for its potential impact. I have other questions about amendment 297 in my notes. Does it intend to capture only the consultations between the co-ordinating doctor and the patient, or does it intend also to capture conversations with relevant persons other than the person seeking an assisted death? That is not clear from the amendment. What I am saying is that it poses more questions than it answers.”
“I agree with my hon. Friend on that point. As I stated at the start of my comments, officials have worked with her on new clause 19, which I think goes a long way to clearing up many of the points that have been raised, including hers.”
“As I have set out, officials have looked at amendment 297 and raised a couple of flags or questions about it. One is what we have discussed about the transcript. The other is that it is not clear whether other people should be included in the consultation. I do not think it is so much about departing from common practice as about the questions that the amendment raises. As always, the Government are neutral. The Government trust that if the Committee, in its wisdom, sees fit to pass the amendment, it will be workable, but as things stand it raises a number of questions. That is all I am flagging.”
“Where the medical practitioner is a member of the person’s GP practice, they must make such a record in the person’s medical records as soon as practicable. Where the medical practitioner is not a member of the person’s GP practice, they must, as soon as practicable, provide a written record of the preliminary discussion to a medical practitioner at the person’s GP practice, who will then be required by the new clause to include it in the person’s medical records as soon as practicable. The Committee may wish to note that amendment 424 would add a definition of “preliminary discussion” to the Bill that would make it clear what discussion medical practitioners would be required by law to record. That concludes my remarks on this group. I thank the Committee for its attention.”
“Amendment 302 would require the independent doctor to provide details of the way in which the second assessment was conducted, alongside a written transcript of any consultation to the relevant chief medical officer and the person’s GP. The independent doctor would be required to maintain a copy of that record to provide to the relevant medical examiner. As I have mentioned, in executing our duty to ensure that the Bill, if passed, is legally robust and workable, the Government have worked with my hon. Friend the Member for Spen Valley on new clause 19. The new clause would require a practitioner to include a record of a preliminary discussion having taken place under clause 4. The record of the preliminary discussion must be included in the person’s medical records.”
“The Government have worked with my hon. Friend the Member for Spen Valley on new clause 19. The Government’s view is that if the Committee accepts it, then that new clause will provide the level of robustness and resilience that the system requires. The Government are not convinced that, on its own, the amendment that my hon. Friend the Member for Bradford West is talking about would provide the level of robustness and resilience we would be looking for. As things stand, the choice has been made to work with my hon. Friend the Member for Spen Valley on new clause 19, and we are satisfied that that would provide us with the operational integrity we need.”
“Palliative medicine is a designated speciality of the General Medical Council and a doctor can apply to be entered on to the GMC specialist register for this speciality, provided they have the specialist medical qualification, training or experience. I hope these observations are helpful, and I thank the Committee for its attention.”
“They must also set out palliative medicine options to provide the patient with appropriate end-of-life care, including referring the person to a palliative medicine expert. This amendment removes the duty in clause 4(5) to refer to a practitioner whom the first practitioner believes is willing and able to conduct the preliminary discussion. As with previous amendments, this language could make it more likely for a person seeking assistance to be referred to someone who is unwilling or unable to help. It is not clear what “qualified to undertake such a preliminary discussion” is intended to mean. In addition, the term “palliative care expert” is not a defined term.”
“The effect of this amendment is to remove the obligation in clause 4(5) for the registered medical practitioner to refer the person to another registered medical practitioner whom the first practitioner believes is willing and able to conduct the initial discussion. This amendment would make it more likely for a person seeking assistance to be referred to someone who is unwilling or unable to help. In addition, these amendments could carry an operational impact, as the new service would need to be designed and brought into existence. Amendment 287 would mean that, if the first practitioner is unable or unwilling to conduct the preliminary discussion, they must, upon request, refer the person to a registered medical practitioner who is qualified to undertake the preliminary discussion.”
“The amendment requires the registered medical practitioner who is unwilling or unable to conduct the preliminary discussion with the person to instead ensure that the person is directed to where they can obtain information and have the preliminary discussion. New clause 13 would introduce a requirement for the Secretary of State to create, via regulations, an independent information and referral service for individuals who are, or may be, eligible under the Bill for assisted dying services. The accompanying amendment 338 would require a registered medical practitioner who is unwilling or unable to conduct the preliminary discussion to direct the person, upon that person’s request, to another registered medical practitioner or to the information and referral service, as set out in the new clause.”
“Amendment 412 would remove the duty in clause 4(5) on a registered medical practitioner who is unwilling or unable to conduct the preliminary discussion to, upon request, refer the person to another practitioner whom the first practitioner believes is willing and able to conduct that discussion. Guidance for medical professionals requires that, where a practitioner objects to performing a procedure, they must refer the patient to a practitioner who can meet their needs. Amendment 341 removes the duty on a registered medical practitioner who is unwilling or unable to conduct the preliminary discussion to, upon request, refer the person to another registered medical practitioner whom they believe is willing and able to conduct that discussion.”
“Although the purpose of the amendments is clear, our assessment suggests that the drafting would not achieve the desired effect, because the register would include only those doctors who have not undertaken the specified training or who have opted out of the assisted dying service. Additionally, the suggested timeframe for laying regulations is unworkable, given the need to work with regulators and the proposed duty to consult. There are also significant operability concerns regarding the creation of a new register for a subset of registered medical practitioners. I hope that the Committee has found those observations helpful. I thank Members for their attention.”
“In addition, they would place a duty on the Secretary of State to make regulations that would create the register to sit outside or alongside the current system of registration of medical practitioners and set out the training requirements to be eligible to be listed on the register. Both sets of regulations are to be subject to the affirmative procedure, and the Secretary of State must consult such persons as they consider appropriate before making them. The regulations making provision for the relevant training requirements must be laid within six months of the passing of this Act. The regulations establishing the register must be laid within 12 months of the passing of the Act.”
“As amendments 125 and 126 are consequential on new clause 7, I shall speak to them as a whole and not in turn. The purpose of the amendments appears to be twofold. First, they seek to restrict the role of medical practitioners who can hold an initial discussion to those who have completed training. That training would be specified by the Secretary of State in regulations and would make them eligible to be listed on the register of assisted dying medical practitioners. Secondly, the amendments seek to apply the same principle to the co-ordinating or independent doctor.”
“However, I hope that these observations have been helpful, and thank the Committee for its attention.”
“Regulations made using this power would be subject to the affirmative procedure. It would also give the Secretary of State the power to issue a code of practice in connection with the form of the psychosocial intervention required. If the Committee decides to accept the amendment, further consideration would be needed on Report to ensure that it is operationally deliverable, and my earlier comments about the definition of psychosocial intervention and other comments would have to be clarified. The Government would, of course, stand ready to assist were the amendment to pass. As I said earlier, the Government have taken a neutral position on the substantive policy questions relevant to how the law in this area could be changed—as I have made clear, that is a matter for this Committee and for Parliament as a whole.”
“If a person who would otherwise seek assistance to end their own life under the Bill is unable to, or does not wish to, receive a psychosocial intervention, unless an exemption applies, they may need to delay starting the assisted dying process until at least six months has elapsed from their terminal diagnosis. That could be challenging in circumstances where the terminal diagnosis has a prognosis of six months or less. The amendment would also introduce a requirement for people in certain contexts to undergo an intervention that could undermine a person’s autonomy in making their own treatment decisions. Were the amendment made, it would confer a regulation-making power on the Secretary of State to create exceptions to the proposed provisions on psychosocial intervention.”
“Amendment 271 does not define what is meant by “received a psychosocial intervention” in relation to their diagnosis. The term “intervention” is usually employed in the health service to mean the provision of support or treatment. This is different from, for example, an assessment that a clinician might undertake to assess whether an intervention may be required. While there is not a standard definition of psychosocial intervention, we understand it to mean psychosocial interventions such as cognitive behavioural therapy. The amendment could create uncertainty as to what type of treatment a person will need to undergo to satisfy the requirement.”
“I have made it clear throughout the debate that I am not offering a Government view on the merits of amendments. My remarks are focused much more on the legal and practical impacts of amendments, to assist Members in undertaking line-by-line scrutiny. The amendments were tabled by the right hon. Member for South West Wiltshire. They would create a further eligibility requirement of the person seeking assistance under the Bill. Amendment 271 and 272 would limit those eligible to seek assistance to end their own life, in circumstances where their terminal diagnosis was received less than six months prior to the date on which the person signs the first declaration, to those who have received a psychosocial intervention. This would be subject to any exceptions provided for by the Secretary of State in regulations.”
“Amendment 184 provides that the form of the first declaration must be set out in regulations made by the Secretary of State, as opposed to in schedule 1 as currently drafted. Operationally, using regulations will allow for consultation in relation to the form and content of the declaration. It will also provide flexibility to tailor or update the content of the declaration. The effect of amendment 289 would be to limit those able to act as a second witness to a first declaration to registered clinicians, though that term is not defined in the amendment. In normal usage, “registered clinician” is broader than “registered medical practitioner”, so practically the amendment may lead to a wide range of registered healthcare professionals being able to act as a witness to a first declaration under the Bill.”
“Although it is for Parliament to decide whether to progress the Bill, this Government remain committed to ensuring the legal robustness and workability of all legislation. For that reason, the Government have worked closely with my hon. Friend the Member for Spen Valley, and some amendments have been mutually agreed upon by her and the Government: in this group, those are amendments 184, 418, 420, 195, 209, 220, 421, 203, 204, 207, 208 and 214. This group of amendments replaces the forms set out in the schedules to the Bill, with the requirement for the forms to be set out in regulations by the Secretary of State. The amendments also make provision about the content and form of the first and second declarations, statements and reports.”
“I thank the right hon. Gentleman for that clarification, because I had heard he was withdrawing but I thought perhaps he meant he would not push him amendments to a vote.”
“Amendment proposed : 277, in clause 5, page 3, line 12, at end insert— “(2A) A person may not make a first declaration under subsection (1) until 28 days have elapsed, beginning with the day they received a diagnosis of the terminal illness.”— (Naz Shah.) This amendment would mean a person could not make the first declaration until 28 days from the day they received a diagnosis of the terminal illness. Question put, That the amendment be made.”
“(2B) In subsection (2A)(b)(i) ‘the initial conditions for eligibility’ are that the person making the declaration— (a) is aged 18 or over, (b) is ordinarily resident in England and Wales and has been so resident for at least 12 months, and (c) is registered with a general medical practice in England or Wales.” — (Kim Leadbeater.) This amendment makes provision about the content of regulations under subsection (2)(a), which will set out the form of the first declaration.”
“Amendment made : 418, in clause 5, page 3, line 12, at end insert— “(2A) Regulations under subsection (2)(a) must provide that the first declaration contains— (a) the following information— (i) the person’s full name and address; (ii) the person’s NHS number; (iii) contact details for the person’s GP practice; (b) the following further declarations by the person— (i) a declaration that they meet the initial conditions for eligibility (see subsection (2B)); (ii) a declaration that they have had a preliminary discussion with a registered medical practitioner, that they were aged 18 or over when they had that discussion, and that they understand the information referred to in section 4(4)(a) to (c) that was provided during that discussion; (iii) a declaration that they are content to be assessed, for the purposes of this Act, by medical practitioners; (iv) a declaration that they are making the first declaration voluntarily and have not been coerced or pressured by any other person into making it; (v) a declaration that they understand that they may cancel the first declaration at any time.”
“It requires the form of the first declaration, set out in schedule 1, to capture whether a person seeking assistance to end their life has: informed their family of their wish to be provided with assistance to end their life and taken their family’s opinion into consideration; or decided not to inform their family of their decision; or has no family to inform of their decision. It is not clear how the term “family” would be defined. It is also worth noting that the amendment would conflict with amendment 184, which removes schedule 1 to the Bill. I hope those observations have been helpful to the Committee, and I thank Members for their attention. Amendment 184 agreed to.”
“Amendment 404 would mean that, following court approval, the person seeking assistance must confirm, in a second declaration on the form set out in schedule 4, whether or not they have informed their family of their wish to be provided with assistance to end their own life. From a practical perspective, the amendment does not specify how a family would be defined. This may create uncertainty as to who the person would need to inform or how to determine that they have no family.”
“I will therefore speak to amendment 208, which provides “that the form of a statement by the coordinating doctor following the making of the second declaration is to be set out in regulations” as opposed to the current position, where it is set out in schedule 5 of the Bill. This would have the effect of providing flexibility to update the content of the form of the statement if required later. Amendment 214 provides “that the form of a final statement is to be set out in regulations” as opposed to in schedule 6, on the face of the Bill. This would have the effect of providing flexibility to update the content of the form if required later.”
“Under the Mental Capacity Act, when a capacity assessment is carried out, the assessor must determine the salient information that the person needs to understand, retain and use or weigh based on the circumstances of the case. The amendment would diverge from this approach, both by specifying in statute the information to be understood and by including the requirement only to understand the information, not to retain, use or weigh it. The Committee may wish to consider whether that would in some respects weaken the test. Amendment 50 might create two legally distinct frameworks for decision making that doctors would be expected to use. Again, this may introduce additional complexity for those undertaking these assessments.”
“In court proceedings to determine capacity, the balance of probabilities test applies. When care or treatment is given to someone on the basis that they lack capacity, there is protection from liability if there is a reasonable belief that the person lacks capacity and the intervention is in the person’s best interest. The amendment would diverge from this evidential approach. It would also have implications for the workforce. Requiring doctors who have experience in applying the reasonable belief test to instead apply a balance of probabilities test for assessing capacity would likely make the current established approach more complex and potentially less safe. Amendment 50 seeks to specify certain matters that the person must be assessed as being able to understand in order for a determination to be made that they have capacity.”
“This assessment of capacity, in accordance with the Mental Capacity Act, is separate to the considerations of whether a person holds a clear, settled and informed wish to end their own life, which is also required by the Bill. Amendment 322 would disapply section 1(3) of the Mental Capacity Act, which is the principle that a person would not be treated as lacking capacity unless all practicable steps had been taken to help them to make a decision. This could create challenges for practitioners who have experience using the Mental Capacity Act, as they would need to apply a new approach. Amendment 49 seeks to apply a consistent approach to the burden of proof when assessing a terminally ill person’s capacity for assisted dying. The Mental Capacity Act has two evidential tests.”
“Section 1 of the Act sets out several guiding principles, including that a person must be assumed to have capacity unless it is established that they lack capacity. Section 3 sets out a description of the factors that demonstrate that a person is unable to make a decision for themselves: that the person is unable to understand the information relevant to the decision; unable to retain that information; unable to use or weigh that information as part of the process of making the decision; or unable to communicate their decision. This inability must be because of an impairment or disturbance of the functioning of their mind or brain. Turning to the Bill, at each stage of the process an assessment of capacity would be required.”
“It is a pleasure to serve under your chairship, Mrs Harris. As usual, my remarks will focus on the legal and practical impact of amendments, to assist Members in their consideration. This set of amendments seeks to change the way in which capacity is determined. As drafted, the Bill requires that a terminally ill person must have capacity to make a decision to end their own life before they meet the conditions for accessing assisted dying. Capacity in the Bill is determined in accordance with the Mental Capacity Act 2005, which presumes capacity unless it is established to the contrary. Amendment 322 would reverse the presumption of capacity and, in effect, establish a presumption of incapacity. It may be helpful to the Committee if I set out the Government’s understanding of both the Mental Capacity Act and the implications for the Bill.”
“We are talking about the holistic nature of the engagement between patients and medical specialists. In some cases that is for treatment, and in others it is for the withdrawal of treatment. The answer to the hon. Gentleman’s question is that what we are talking about here—the two distinct legal frameworks— relates both to treatment and the withdrawal of treatment. This Bill fits into that category, in the sense that it is part of the engagement and conversation between a patient and a medical practitioner.”
“It is the view of the Government that this is a new piece of legislation that introduces a new type of engagement between somebody who meets the conditions and criteria set out in clause 1, and medical practitioners and other experts, as set out in the Bill. I am not quite sure what the hon. Gentleman is driving at. I do not know whether he wants to get into a discussion about the definition of the word “treatment”. It is absolutely clear that this Bill introduces changes into the system, including a new part of the conversation that would take place between medical practitioners and patients who have less than six months to live.”
“The Government’s general view is that if we have a legislative base that, in our view, works—namely, the Mental Capacity Act 2005—we should not add more complexity into it.”
“It is the Government’s view that, even though the Bill is introducing something new, introducing new and potentially parallel legal frameworks would not improve its clarity or workability. In essence, the Government’s view is that we bring forward legislation; if that legislation passes, we bring forward regulations; and we then bring forward training and capacity-building to ensure that we ultimately have a system that is operational. The Government do not accept the argument that bringing forward a new parallel framework of legislation at the first step would improve the workability and operationalisation of the Bill. My role as Minister on this Committee is to talk about the fact that the Bill needs to be workable, operational and legally watertight.”
“My hon. Friend makes an important point, and did so more eloquently than I could. The withdrawal of treatment is an important part of this conversation. I would also say that although we totally understand that Members want to address through primary legislation certain risks that they see arising from this legislation, it is important to point out that by doing it through primary legislation we could end up with something that is counterproductive and that could lead to the Bill being less workable and therefore potentially less safe. That is a balanced judgment.”
“What we are talking about today with this Bill—and the job of this Bill Committee is to improve the Bill—is a number of safeguards that ensure that the patient is absolutely consulted and positively and constructively engaged every step of the way. In that sense this is different from the situation my hon. Friend describes. I bow to his expertise as a medical practitioner in this field, and it sounds as though what he has described is not an ideal situation, but certainly this Bill, it would appear, has safeguards that ensure that the situation he describes should never arise.”
“The system is very familiar with it and knows how it works, and that is the best way to minimise the risks that I think all hon. Members are keen to minimise to the greatest extent possible.”
“I thank my hon. Friend for that intervention. Fundamentally, the balance of judgment of risk is based on whether, if we add additional words, phrases and amendments to a piece of legislation, it would have the result of decreasing the risk we are trying to address, or of increasing that risk. The Government’s view is that the Mental Capacity Act is a robust foundation for the decisions and processes set out in the Bill. Hon. Members are, of course, absolutely welcome to say that they do not believe that the Mental Capacity Act does what it should be doing and that that is why they have tabled amendments. However, the Government’s view is that the proposed changes would increase the risk of somehow creating a parallel framework to the Mental Capacity Act, rather than keeping it as the foundation.”
“We then need to ensure that we have a system that is flexible, robust and resilient enough to deliver and to address whatever challenges it faces.”
“What we are saying is that we have the Mental Capacity Act as the legal basis for the questions we are addressing in the Bill. Cleary, on top of that regulations will be brought forward by the Secretary of State to ensure that medical practitioners have adequate training and that capacity-building takes place, so that the system is able to deal with the question before it, and therefore the judgment of the medical practitioner is trusted. I think, in the situation my hon. Friend just outlined, that that would be the same case. Again, this is the process that every Government go through in pretty much every single aspect of policy that they deal with. They have a legislative basis; they bring forward regulations; they deliver training and they build capacity; and the system works on that basis.”
“Establishing a lack of capacity would not be based on an inability to make a decision because of an impairment of, or disturbance in, the functioning of the mind or brain, as in the Mental Capacity Act. Rather, this would allow for the consideration of other factors, such as immaturity. It would also apply a higher standard of proof than the Mental Capacity Act requires for other decisions, including for serious medical treatment, by requiring assessors to establish capacity “beyond reasonable doubt”. This may raise questions about the nature and extent of the evidence required. In summary, the amendment would introduce a new framework for assessing mental capacity specific to assisted dying. This may create operational challenges for practitioners and healthcare professionals who are well experienced in applying the Mental Capacity Act.”
“I see the point that my hon. Friend is making, but the amendments, as the Government understand them, would risk creating a parallel legal framework and increasing levels of uncertainty, and the more that we increase levels of uncertainty, the greater the risk of the system not working properly. Clearly, the situation that he describes is based on particular measures that have been brought forward, but what we are talking about is a legal framework, not a code of practice, in the legislation. Amendment 398 would remove the existing presumption of capacity in the Mental Capacity Act, thus requiring a capacity assessment in every case. The amendment would also establish a different test for assessing capacity with regards to the decision to seek assisted dying.”
“That goes back to what I was saying earlier, which is that this is fundamentally a judgment call: do we make the system more robust, resilient and effective by adding more complexity and bringing in a new and parallel legislative framework, or is it best to work with a legislative framework that is well established and well understood by practitioners, and then to enhance that through regulations and training? It is the Government’s view that the latter is a more effective way of doing this legislation, but I accept that the hon. Members who have tabled this group of amendments clearly would not agree with that analysis.”
“I thank the hon. Member for the last intervention that he will ever make on me. The Government’s analysis of this group of amendments is that, to varying degrees, they would not add clarity; they would add more complexity, partly because they would either create a parallel legal framework or put new elements into the mix that would create operational challenges for practitioners. That is the Government’s fundamental analysis, but it is a finely balanced judgment and I absolutely accept the hon. Member’s argument.”
“I think the right hon. Member has outlined what I was saying, in slightly sketchier terms, about legislation, regulation, training, capacity building and delivery. What he has described falls under what I would broadly refer to as regulations, but within that there are a multitude of interventions, which could include codes of practice, other forms of legislation, other forms of guidance—”
“Indeed: common law, jurisprudence and whatever a professional body might take as a steer for delivery. It is then about the professional judgment of the professional body.”
“The Government are neutral on the Bill—the Government do not take a view on the substantial philosophical, ethical and moral policy considerations—but we do advise, and are advising, the Committee on the implications for the legislative framework of amendments that have been tabled. In a sense, we are not neutral in respect of whether we think that if an amendment were to be made, it would have very significant operational impacts that could potentially affect the workability of the Bill. We are duty-bound to advise the Committee of our position on that.”