Kit Malthouse
MP for North West Hampshire · Conservative · United Kingdom
“We have heard time and time again that the situation that thousands of our constituents live with every single day is so horrific and appalling that even the best palliative care cannot alleviate their pain. I urge colleagues to consider what their vote may mean today.”
“I will not. Some of those Members had just a few months before been specifically rejected by the electorate and replaced in this House by others, and I am afraid that they cannot be trusted not to do the same thing again. I grant my right hon.”
“The Health and Social Care Committee of the House of Lords found that in territories that have assisted dying, palliative care generally improves, because people become less afraid of talking about death.”
“One of the most affecting people I have met over the last 11 years of campaigning on this issue is Warwick Jackson, who came to our party conference a couple of years ago. Warwick’s wife, Ann, was diagnosed with terminal peritoneal cancer. She basically knew that she was going to die a slow, suffocating death at the end.”
“I respect my right hon. and learned Friend’s expertise in this matter, but, as he has already heard on the Floor of the House, it is perfectly possible for this House to suggest amendments, negotiate them with the promoters of the Bill, place them against the legislation in the House of Lords and then have them come back to this House for…”
“As co-sponsor of the Bill once again, I am acutely conscious that there is more at stake today than merely the fate of those who are facing their end, because the conduct of the other place means that our democracy is also on trial today.”
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“It is perfectly possible for this to evolve as we get to Report and Third Reading in the light of evidence that arrives. That is the normal process through which all legislation goes.”
“Further to those points of order, Ms McVey. First of all, it is worth saying that the amendments tabled by the Bill’s promoter, the hon. Member for Spen Valley, are in response to evidence that has been heard by this Committee—oral and written. Certainly the Bill Committees that I have been on have had repeated information coming in as the Bill has evolved. That is an actual process. It is worth also pointing out to Members that the Bill Committee is not the end of the process, and written evidence that will arrive throughout will be pertinent on Report, when the whole House will have that information available. Then members of the Committee can lead the debate and reflect on information or written evidence that has emerged even after Committee stage, once the completed Bill from that process is seen.”
“I have to confess that I am a little confused by the evidence to which my hon. Friend refers. Can he confirm that it is perfectly possible for me to be diagnosed with a terminal disease and make an advance directive, which may apply in three months’ time, that in those circumstances I would decline treatment and would wish to die at that point? The Mental Capacity Act is used to assess me in making that advance directive, having had my terminal diagnosis. If it is good for that decision, I struggle to understand why it would not be good for a similar decision to end my life in similar circumstances.”
“In both circumstances I am requesting that a doctor do something to hasten my death, because I do not wish to continue living in the circumstances presented to me.”
“My hon. Friend will recall the evidence from Professor Hoyano, who said she could not legally see the distinction between a doctor handing the pills to somebody to take themselves and the doctor pulling the plug out of the wall to turn off the ventilator or whatever machine might be keeping the person alive. Both of them are an act by a doctor at the request of the patient to foreshorten their death and avoid whatever they contemplate at the end. I realise we are dealing with semantics here. We might have an irreconcilable difference about such an act, but I have to say that from the point of view of a patient—the person approaching their death—those two acts seem to be broadly the same.”
“Forgive me, but surely the whole point of what we are trying to do here is to give people the opportunity to avoid the natural death that is presented to them. We hear again and again, and we heard it from the families who gave evidence, that people profoundly wished to avoid their natural end because it was going to be degrading, unpleasant and profoundly painful on every level. That is the whole purpose of the act. To say that we should avoid that issue seems to me to negate our whole reason for being here.”
“We will be debating later in Committee the information that is given to a person to form that decision, but I do not think it is quite the case that the psychiatrist said that it could not be or was not fit for purpose. Actually, they said that it may well be sufficient if we equate those two decisions—and many of us do.”
“I want to clarify what the Royal College of Psychiatrists actually said, because I realise that the hon. Member is relying a lot on that evidence. In an exchange with me in their oral evidence, the doctor from the royal college said that if I were to equate the decision to refuse treatment with the decision to request a hastening of my death in extremis as qualitatively the same, and of the same seriousness and outcome, then the Mental Capacity Act may well be appropriate for the decision. The difference was information. We would be relying on the notion of informed consent, and therefore on the information that the person was being given about the consequences of that decision.”
“She seemed to be implying that somehow the entire practice of psychiatry in the UK was on unstable ground—and I do not think anybody is claiming that.”
“If the hon. Lady goes to column 277 of Hansard from that oral evidence session, Dr Price said: “You are equating a refusal of treatment, in capacity terms, to hastening death by assisted dying. If those two things are equated, in terms of the gravity and the quality of the decision, the Mental Capacity Act may well be sufficient, but there are differences. There are differences in the information that the person would need and what they would need to understand.” –– [ Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 277, Q361.] It is clear what Dr Price said. To be honest, the question was partly prompted as we had become a little confused, because the whole practice of psychiatry in the UK is founded on the Act at the moment.”
“It is a very wide definition, which covers a large number of people, some of whom would not necessarily be classified as vulnerable and may well be assessed as perfectly capable and have the capacity to make this decision. So my first point is that there is a definitional problem with the broad terms that my hon. Friend has chosen.”
“There are many people who may well find themselves in extremis while they are in prison and are likely to be released at some point, after a short sentence or because of the nature of their sentence, who would therefore have their ability to access assisted dying foreshortened. Similarly, when my hon. Friend speaks of homeless people and uses the definition in the Housing Act 1996, I think he actually means rough sleepers. The definition of homelessness that he referred to includes people who are staying with friends, people who are moving between homes and people who are likely to become homeless at some point in the future.”
“Would he seek to deny assisted dying to prisoners on remand who have yet to be found guilty of a crime but are being held in advance of the criminal justice process? Would he deny assisted dying—which will be available to everybody else if the Bill passes—to people who are held in prison for not paying their council tax, for example, or for contempt of court? There is a variety of vulnerability in the criminal justice system, and prisoners are inside for different lengths of time and in different institutions. Quite a lot of white-collar criminals go to open prisons, for example. Would he seek to deny them? To me, if my hon. Friend’s objective is to protect vulnerable prisoners, the definition that he is using is far too wide.”
“I should start by recognising that my hon. Friend the Member for East Wiltshire, who is my constituency neighbour, has devoted much of his adult life to public service. He should know that I have always admired him for that, and particularly for his work with the vulnerable and underprivileged in prisons. As he knows, I have spent much of my time in politics working with a similar population, so, like him, I understand their particular vulnerabilities. However, I oppose his amendments, and I hope he will bear with me while I enumerate why. I believe that there are some definitional problems with the amendments, as well as some quite serious moral and ethical problems, and they compound into a practical difficulty. The first definitional one is who exactly my hon. Friend means by “prisoners”. As he knows, not all prisoners are the same.”
“I was about to come on to the fact that those questions would indeed be asked through the assessment that takes place. As my hon. Friend knows—we have had a long discussion about it—the Mental Capacity Act relies to a certain extent on context to assess capacity. Turning to my hon. Friend’s point on prisoners, this may come as a surprise to him, but some people who are held on remand are found innocent and are released from prison. During their period on remand, which could be quite lengthy, they would be denied access to something they would not otherwise be denied access to.”
“We do not deny medical services to prisoners because they are prisoners. We believe it is a sign of a civilised society that they access the same healthcare as everybody else through our national health service. The same is true of those homeless groups. That includes allowing them to make the kind of decisions that we have talked about in the previous debate: decisions about life-threatening surgery and about the continuation of their life. It is certainly the case, as my hon. Friend will know from his work in prisons, that a number of prisons have developed hospice facilities within the prison to deal with end-of-life issues. Indeed those that do not have hospice care work closely with NHS palliative care outside and very often bring in specialists to deal with end-of-life issues in the prison.”
“I understand my hon. Friend’s point, but we are talking about people who do not have much time. We have to remember throughout this debate that we are talking about people who have limited time; they have been diagnosed, and their prognosis is six months or less. In fact, the experience from overseas is that quite a lot of people come to assisted dying beyond six months. We are operating on the basis that suddenly everybody at six months decides they are going to apply for it. Quite a lot apply with just days or weeks to go; time is therefore important to them, and so it should be to us. I am concerned that the definitions interfere with that. Secondly, there is a distinct moral issue about the denial of services, particularly medical services, to groups of individuals based on their circumstances. We do not currently do that.”
“Given that they have only got six months under this Bill, we should not interfere with that and say, “Well, you are in; you are out.” This may seem like a narrow example, but imagine that somebody diagnosed with a progressive disease were to commit a criminal act and end up going to prison, and during their time in prison, they reach the six-month period. Are they to be denied assisted dying if it is available to everybody else in the population? To me, that would not seem morally right, particularly given that we have a duty to deliver, and we do deliver, end-of-life services to them in the prison to help them cope with those circumstances. As my hon. Friend will know, there are charities which provide end-of-life care in prison as well.”
“I would certainly concede that; absolutely, I agree. The whole purpose of the safeguards in the Bill is to protect those who would be vulnerable, to ensure they have the capacity to make the decisions they want to make, and to ensure that they are making them for the right reasons. However, I think a lot of people would find it unfair and immoral that they were excluded not because of their own sense of themselves and their ability and capacity but simply because of their circumstances. As I am trying to point out, those who are homeless or prisoners in the widest definition of those words can find their circumstances changing quite significantly within the timeframe of six months.”
“I am very pleased my hon. Friend raised that issue, because I was about to come to the practical difficulties that this presents, for exactly that reason. As he rightly pointed out, for a large number of prisoners, subject to assessment of the safety of the public, if they contract a terminal disease in prison, as they reach the end of their life, they qualify for compassionate early release. Often, that is within weeks of their death—naturally, as one would expect. It is carefully reviewed by prison governors and, I think, has to be signed off by the Secretary of State, as a final control. The problem with denying them the services while they are in prison is that if they are eventually compassionately released, they may have only a matter of weeks or days to go through what will be quite an onerous process to avoid a horrible death.”
“They are assessed as having capacity, if that is not the case, and in certain circumstances they are force fed, if it is seen that they do not have the capacity to take that decision themselves. In fact, the reason why prisons have created hospices within prisons is to deal with exactly such end of life decisions. If we are doing it for non-assisted dying, why would we deny people the choice and autonomy, having been assessed as capable of making the decision, to do it in prison? Worse than that, if we are going to release them on compassionate grounds, why would we give them a shorter period to access the service than anybody else?”
“The hon. Lady is feeling towards the point I was trying to make, perhaps slightly incoherently. The point is that in my view, whether or not those people have access to this service, it should be based on an assessment of them as themselves, including their mental capacity, particular characteristics and their settled will, just as it would be for everyone else under the Bill. The fact that they are, at that point, a prisoner impacts on the context in which their capacity is assessed, which must be the critical factor. Having a blanket ban on all prisoners, capable or otherwise, seems cruel, if I am honest. We know that prisons have to assess capacity in difficult circumstances. There are prisoners who decide to decline food and water and starve themselves to death.”
“We should be applying to prisoners exactly the same criteria of assessment—around capacity, vulnerability and settled will—at the time they are diagnosed with a terminal disease as we do to everybody else, because if we are not going to differentiate among prisoners, in many ways we are dehumanising the entire population. We are saying, “You are all vulnerable—no question—and we are excluding you completely on that basis.” As the hon. Member for Harrogate and Knaresborough said, that is in many ways a fundamental denial of a basic human right.”
“I am grateful to the hon. Lady for allowing me to intervene again. Can she not see that by supporting the hon. Gentleman’s amendment she is basically defining all prisoners as de facto vulnerable? It is not the case. Although many are vulnerable, both my hon. Friend the Member for East Wiltshire and I have met a lot of criminals and prisoners in our time, and quite a lot of them are smart, capable people who made a stupid decision. They are not vulnerable; they deeply regret what they did and go on to live perfectly functional lives.”
“Member may be interested to know that there is quite a lot of on-street mental health assessment taking place for people. People who are living on the street develop all sorts of disorders—indeed, there are often people with quite significant mental health problems on the street—and they are dealt with as closely as possible to the front end. Therefore, it would not be beyond the capability of the state to make assessments about individuals that are appropriate to the context. I am trying to stress the point that we need to see the person as an individual, as well as within their context. With a blanket ban on particular groups, the human right that I was referring to is denied—it denies them the right to be seen as an individual and assessed as an individual, which is what we do in every other service that we provide to them.”
“I was not necessarily saying what the hon. Member said that I said—that all homeless people are the same. However, it is the case that, for rough sleepers in particular, a number of charities, such as St Mungo’s, have had to develop on-street palliative care services for the rough sleepers who sadly do contract terminal diseases or are reaching the end of their lives. Very often, part of that service is to try to encourage them to come into some kind of institutional environment, such as a hospital, where their healthcare can be better served. It is a particular difficulty with that group, and there is a high incidence of mental health problems among the street homeless—not homeless people generally, but the street homeless—but that, in my view, would be caught by the general assessment that takes place. In fact, the hon.”
“I am grateful for my hon. Friend’s kind words, but he will know that the foundation of our beliefs stretches from Magna Carta through to Mill and is based on a legal notion that I am to a certain extent my own island—that I have autonomy over myself. From habeas corpus to making decisions about my own medical treatment, I should have rights. That is not to say that my decision-making capacity should not be assessed within the context in which I live. What I was trying to communicate to my hon. Friend and his supporters in respect of this amendment is that I think it profoundly wrong to paint all prisoners with the same brush and see them as a homogeneous whole, rather than seeing them for the individuals they are, specifically when they are taking a very individual, personal and private decision about their own life and death.”
“My view is that those declarations, as well as the assessment that the doctor has to go through to confirm that the person has a settled wish to do this, are enough to show that the person demonstrably wants to access the service for themselves. I am concerned that amendment 109, like other amendments that we will debate later, would insert into the Bill a series of individual words that will unnecessarily complicate its contemplation by doctors. We heard in evidence that for the Bill to work, it needs to be simple and understandable by everybody who is dealing with it. The more we can minimise the number of words that may be open to interpretation by lawyers —and we certainly have plenty of lawyers in the room— the better. From that point of view, I will oppose the amendment. I understand what the hon.”
“I understand what the hon. Member for Broxtowe is trying to achieve, but I believe that her amendments are unnecessary. “Demonstrably” is a word that is commonly used in British law, effectively to emphasise that something is important, but also to ensure that something is proven. She will have seen that I have tabled amendments to the Bill to require two declarations to be produced: one by the patient, to say that they have had the conversation about all their options, understand their options and understand what their prognosis is likely to be; and one by the co-ordinating doctor, to say that they have had the conversation and that the patient is in full possession of all the facts they need and understands what has been communicated to them.”
“I am afraid that that is not actually correct. If my hon. Friend is willing to look at my amendments—I appreciate that he might not have got to them yet—he will see that one of them would require the doctor to produce a report on their assessment of the patient. Obviously a two-way declaration would also be required that the conversation pursuant to clause 4(4) has taken place and that in the doctor’s view the person is in possession of all the facts that they need in order to make the judgment that we are asking them to make. That detail and documentation will be inserted into the Bill if my amendment is agreed to.”
“First, are Arabs, and Palestinians in particular, entitled to the same protections under international law as everybody else? Secondly, do we still affirm our support for UN Security Council resolution 3236, which guarantees the Palestinians’ safety, security and sovereignty in their own land? If so, when will she stop just talking about it and actually take action to enforce these matters in law?”
“Does the Minister accept that we got here after 16 months of weakness and vacillation by both this Government and the previous Government? As we contemplate the hundreds of thousands of people who are returning to their homes to dig out their relatives from under the rubble, the welcome return of the hostages, and the 40,000-odd orphans—and even more amputees—does she recognise that the hot air we have heard from both Governments, frankly, got us to a situation in which the Israelis are demolishing buildings in Jenin with people still inside and in which the President of the United States is openly contemplating the forcible transfer of Palestinians? If the right hon. Lady accepts that vacillation, will she confirm a couple of things for the avoidance of doubt?”
“What a shame the Minister has chosen to substitute aggression for what should be regret for what is, whichever way he paints it, obviously a terrible failure of negotiation. I chair the all-party parliamentary group for life sciences, and I can tell the House that this is a terrible blow not just for Speke and Liverpool—the city of my birth—but for our vaccination development environment generally. The lack of this production facility means that there will be no pull for vaccination development in the UK and the various technologies that come with it. What will he do to replace that?”
“We believe that it is working really well in practice. We would be concerned about gagging those conversations, as that would ensure that a patient is not receiving the full information about their end-of-life choices.”
“It is an extremely confronting thing to be told that you have a terminal illness, to be told that you have six months to live or to be told, if you have advanced bowel cancer, for example, that your end of life will look like you are going to be choking on your own faeces. In New South Wales, we decided that it is important that that person, who has been told that they have a terminal illness, is able to have a full conversation with their doctor about all their options—one of those options being that they could have a better death than their illness would otherwise provide them with. We decided that being able to really talk through with your doctor all your options—from access to palliative care, to social supports, to what the process of voluntary assisted dying looks like—was so important.”
“Q I want to go back to the issue of gag clause/doctor initiation. Alex, could you quickly talk to us about the thought processes? Can you say why some states introduced it and why you did not? How in legislation have you circumscribed the way doctors should approach this with patients? Perhaps our two medical guests could talk about how, in territories where there is not a gag clause, doctors are obliged not to lean towards a particular recommendation, as they might do with other courses of treatment. Alex Greenwich: Our experience in New South Wales was based on evidence from doctors and people with the lived experience of a terminal illness.”
“Q But how did you approach that in the legislation? Is it silent as to what doctors should do, or does it have a prescription? Alex Greenwich: Yes. In our legislation we make it clear that the doctor has to make sure that the patient is aware of their palliative care options, and we have referral pathways for psychosocial support as well. All that is prescribed in the legislation. Obviously, in the training for voluntary assisted dying a lot of that stuff is covered. In the legislation, we also define the things we want to have in that training.”
“I know that you do not want that kind of situation, but I believe that this legislation has to be completely even-handed for it to work and for the system to acquire public respect.”
“If anyone has concerns about the probity and thoroughness of the preliminary stages, or thinks that the High Court judge sitting in the Court of Protection has made an error of law or has failed to follow the procedures, that needs to be reviewed by the Court of Appeal. We need an even-handed approach. I can understand the motivation of not wanting busybody people, as happened in one case in Canada in which a wife had a religious objection to assisted dying, and yet there was no doubt that the husband had satisfied all the criteria. She went all the way to the Nova Scotia Court of Appeal because of her religious objections; it turned out that religion was a source of great dissension in the marriage anyway, but her church was egging her on.”
“In the criminal division, which is where I am primarily practising now, the court can hear expert evidence de bene esse in order to determine whether it should send a case back for a retrial on the basis of newly discovered evidence that was not originally available, but that evidence will be called by the defence. The defence will be putting the evidence in, the Crown will cross-examine and the court will ask any additional questions it wants to, but to have an original jurisdiction —in effect, what we call a trial de novo: a trial all over again—in the Court of Appeal is wholly inappropriate to an appellate jurisdiction. That needs to be completely rethought. There is also a difficulty in that the right to appeal is very lopsided: only a patient can appeal a denial, not anyone else.”
“Exactly what has to happen needs to be set out. It strikes me that the intention may be for the court to, in effect, certify that all the procedures have been correctly followed at the preliminary stages. What is not entirely clear is whether the court itself is required to investigate whether the criteria are satisfied. It reads like that, but I am not sure whether it is supposed to be a review function or a primary decision-making function. This becomes even more difficult because of the way in which the Court of Appeal’s functions are ascribed. The Court of Appeal does not have power to summon witnesses; the Court of Appeal does not have power to question witnesses.”
“I point out that Lord Justice Munby himself—Sir James Munby, as he now is—represented the Official Solicitor in the seminal case on termination of life support, the Tony Bland case. We have a lot of experience in that area, in dealing with end-of-life decision making with the Official Solicitor, but I think that that role needs to be built into the legislation with very specific tasks set out, including an investigatory function. The other current difficulty is that it is not clear at all what the procedure would be. With great respect to the drafters of the Bill, I have never before seen such a delegation of the most essential procedural structures entirely to rules of court in terms of practice directions or rules of practice; we do not do it in the family division and we do not do it in the Court of Protection.”
“I do not think that it is feasible at all, in our current system, to have the court call witnesses or question them directly until they have been examined and cross-examined, if appropriate; the court can then put in questions and ask for clarification, as would happen normally now. If we are to have a judicial oversight function as opposed to a panel of experts—to be honest, I think we already have the panel of experts: the doctors who are already involved in the different stages leading up to the final stage—the easiest approach would be for the investigatory function to be assigned to the office of the Official Solicitor, preferably with an individual who has expertise in this field and will be able to get experience by dealing with these cases.”
“There are a number of unusual functions, if I can express it that way, being attributed to the court. I need first of all to stress that the High Court’s family division, and the Court of Protection, regularly engage with life and death matters, but they are doing so in the context of an adversarial and not an inquisitorial system. However, since the 19th century we have had the invaluable institution of the Official Solicitor, who has investigatory powers or functions and who serves in court as an amicus curiae—a friend of the court—to assist the court in understanding where the issues lie and in calling witnesses.”
“Q Professor Hoyano, I am interested to explore your views on the third layer. I understand your view about the Court of Protection, but we have heard in previous evidence, not least from eminent members of your profession, that the Spanish model of a panel of experts might be an option worth examining. In those circumstances, what is your view of the investigatory processes, either for that or for the Court of Protection, or the type of evidence that might need to be adduced? What could be specified in the legislation as a requirement on those people involved in the process? Professor Hoyano: I have to say that I have real concerns, as a practising barrister, about how the provisions as currently drafted could work in terms of judicial oversight.”
“Q My question is to Dr Richards. Obviously health service medics are dealing with end-of-life situations at the moment—they are withdrawing treatment or declining to give treatment if they think it is futile. In those circumstances there are a set of safeguards. How do those safeguards compare with the safeguards in the Bill? From your research, do you think there is any adjustment required to the safeguards we have at the moment? Dr Richards: Assisted dying is quite categorically different from the end-of-life scenarios you are talking about there, so you would expect a very different set of safeguards. It is a misunderstanding to think that assisted dying is of a piece with other life-ending decisions. It is really something quite different and requires a different framework.”
“The two suicides in my family were outwith the law, and the third death I was going to talk about was a natural death—we would call it a natural death—so I am sorry but I cannot make a comparison. Liz Reed: The system in Australia is, as I said, quite similar to what is being proposed here. It felt like throughout that process for my brother, Rob, it was really caring and respectful. He was able to change his mind, which he did, in terms of dates and when it would happen. His views and the views of his family were also taken into account and, through the process, he was treated like a person with autonomy whose choices were being respected.”
“Q Thanks very much, Mrs Harris, and welcome, everyone. Liz, you and I have met before. I am very conscious that during the last couple of days of evidence, we have heard from all sorts of people but not actually from anybody with a terminal illness or somebody who has been through the experience that you have been through—so, welcome. Over the last two or three days, we have heard quite a lot about the complexity of the issue that we are dealing with, but we also heard right at the start that we have to balance that with simplicity, access and speed. From your experience of the two methods in Australia and Switzerland, do you think that there is something to be learned from those systems about that balance? Pat Malone: I am not familiar with the situation in Australia.”
“If you do not want to get involved, leave it to somebody who does because there are plenty of people who will”, and if that could be quantified somehow by a code of conduct—perhaps among the doctors, rather than in the Bill—that would be very useful.”
“Try Gaviscon.” Even when he went to his GP, in the light of his understanding of my father’s death, to say, “I think I’ve got pancreatic cancer,” his GP said, “No, it’s not—it’s just indigestion,” and so forth. It would not have mattered; an early diagnosis would have made no difference at all. But the GP was not very helpful and did not want to get involved. When my brother died, my sister-in-law called the GP and the GP called the police. Before my brother was cold, the investigation started. If there was some way you could say to doctors, “This is what you can do, and this is what you can’t do.”