Lord Shinkwin:

Moved by Lord Shinkwin

193: Clause 5, page 3, line 34, at end insert—“(7) If a registered medical practitioner or other health professional raises the subject of the provision of assistance in accordance with this Act with a person, or if a person raises the subject with a registered medical practitioner or other health professional, it must be considered a preliminary discussion and the discussion must be recorded.”

My Lords, I make it clear at the outset that I do not intend to press my Amendment 193. I also support the other amendments in this group and look forward to learning and listening, as I am sure the noble and learned Lord does, before I wind up at the end of the debate on this group.

The modest and reasonable nature of my Amendment 193 belies its significance. It is crucial to ensuring transparency and thus trust—the trust of the patients, their families, the medical profession in the widest sense, any relevant legal and regulatory bodies, and, of course, the public. In practical terms, the amendment would require:

“If a registered medical practitioner or other health professional raises the subject of the provision of assistance in accordance with this Act with a person, or if a person raises the subject with a registered medical practitioner or other health professional, it must be considered a preliminary discussion and the discussion must be recorded”.

This is therefore very much a “to be or not to be” amendment, because the noble and learned Lord’s response to it will show whether he wants the assisted dying regime that his Bill would create to operate transparently or in the shadows. It will show whether he recognises that transparency is crucial to engendering at least a modicum of trust in the assisted dying process he proposes, or whether he has something to hide and would much rather plough on regardless.

As a lifelong NHS patient who receives a copy of any post-appointment letter sent by my orthopaedic surgeon to my GP as a matter of course, I find it not just positively Neanderthal but pretty sinister that such a pivotal exchange as a preliminary discussion about assisted dying would not be recorded in a way that explicitly involves the patient after the conversation as well as during it—and that it would implicitly not apply beyond a practitioner from the “person’s GP practice”, to quote the Bill. Surely this begs the question of why any registered medical practitioner or other health professional involved—or indeed the patient—would not want there to be a record of what was said and, furthermore, for that to be made available to both the patient and appropriate stakeholders, such as but not only their GP, within the set timeframe, as provided by amendments in this group that other noble Lords will speak to.

We are assured by Kim Leadbeater in the other place that this Bill provides for the safest assisted dying regime in the world. I beg to differ, but it is good to know none the less that she acknowledges the need for the question of its safety to be addressed. This amendment would do exactly that: its sole purpose is to improve safety. At its heart is the recognition that it is vital to have a written record of the preliminary discussion in the way that my amendment provides, because it would act as a legal gateway to the assisted dying process and provide a permanent trail of evidence for a decision that is final and irreversible.

Maintaining a robust written record of the preliminary discussion, and ensuring it is completed and circulated promptly, is therefore a fundamental safeguard required to ensure the transparency, accountability and clinical safety of the assisted dying process. Without such a record, the preliminary discussion will always be regarded as having been conducted properly, making it impossible, in effect, to regulate the process. So it is not good enough for the noble and learned Lord to point to Clauses 7, 9, 10, and 11 as if to say, “What’s the problem?”, not least because Anna Dixon’s amendment in the other place—which explicitly required a doctor to

“record and document the discussion and the information provided” and give a copy of the record directly to the patient—was not included in Kim Leadbeater’s new Clause 7 on recording.

The noble and learned Lord may rely on Clause 44 and say that the Secretary of State would have the power to require this. However, that would not put in the Bill that there should be a record of the preliminary discussion or set a minimum standard format or a required level of detail for its contents. The Secretary of State would have the power to require this, according to the Bill, but I draw noble Members’ attention to the Delegated Powers and Regulatory Reform Committee’s recommendation which signalled that this was inadequate. It recommended, instead, that the Bill should be amended to explicitly clarify

“what type of event or other information must be notified or the principles underlying notification” in primary legislation. That is what this amendment seeks to do.

In closing, I simply highlight that my amendment and the others in this group seek to address what is already, sadly, a known problem in other jurisdictions, including Canada and Australia, resulting in disciplinary action and official findings of non-compliance. Let us learn from them and pay heed to the evidence given to the Bill Select Committee by Dr Michael Mulholland, honorary secretary of the Royal College of General Practitioners. He said:

“If you were having assisted dying conversations, you would want to make sure it was recorded at every point that people were thinking about this on the way through”.

Indeed. Why would you not? I hope the noble and learned Lord will accept my amendment. I beg to move.

My Lords, I commend the important speech of the noble Lord, Lord Shinkwin. Decisions at the end of life are complex, and a single conversation simply is not enough to capture someone’s physical condition, mental state, and personal and family circumstances. Attempting to record such a complex conversation is quite a daunting prospect.

Requiring a preliminary step also adds an unnecessary layer of stress before a proper evaluation can even begin. Both Clauses 5 and 7 add more steps but not more safeguards. The key protections in this Bill—checking capacity, ensuring that decisions are genuinely voluntary and identifying any coercion—can and would be addressed within a multidisciplinary specialist assessment. As it stands, requiring a preliminary discussion and recording it adequately risks duplication while causing unnecessary delay, when time is of the essence. Instead, a specialist multidisciplinary panel would provide a full and balanced assessment from the outset, and of course it would be properly documented.

Noble Lords tabled amendments to earlier clauses proposing panel-based, evidence-led decision-making that draws on the skills of multiple professionals and in-depth assessments. Multidisciplinary panels, as recommended by medical royal colleges, would allow each person to be assessed appropriately and holistically. This is not about adding obstacles; it is about removing unnecessary steps while strengthening safeguards. By going straight to a comprehensive specialist assessment, we make the process more efficient and more responsible. Clause 7 would not then be required.

My Lords, I have 12 amendments in this group, and I am going to speak also to Amendment 241, which is in the next group but which probably fits better in this one, because it is about the time period for recording information.

The words “as soon as possible” appear eight times in this Bill in relation to the recording of information. I believe that that is a little too vague; it feels like a non-binding term without a strict or official definition. It makes me think of the parliamentary term “soon”, often used by Ministers to suggest something may be coming soon—next week, next month or possibly never.

I think about this process in what might be a busy hospital. It is important not only to gather data correctly but to record it accurately and at pace. The lack of a precise timeframe makes it feel as though we are giving busy staff too much flexibility, which might end with it slipping down the list of things that they need to do when there is a lot of call on their time. It is about providing and recording information that can be open to scrutiny, but the phrase could be used to deflect an immediate challenge or an urgent question, and cannot be followed up in an appropriate way.

On my Amendment 214, I expect there to be some pushback and to be told that I am being overly prescriptive. However, it is important to understand why the person wants to enter this process and whether there are other events, family issues or anything else that could possibly impact it, such as a lack of health and social care. I have other amendments on support, which have been discussed in other groups.

Amendment 214A is about having a witness present—someone who can record the conversation. My noble friend Lady Cass in the earlier group talked about the importance of having a person there; someone who can watch facial expressions, take the mood of the room and possibly look out for coercion. That would allow those doing the initial recording to actually listen to what the person is saying, rather than necessarily having to record every part of the conversation. Amendments 217 and 218 are about recording in a timely manner.

Amendments 562, 563 and 564 are about how we record the cancellation of the process. I was interested in the amendment proposed by the noble Lord, Lord Wolfson of Tredegar, which looked at recording the cancellation immediately. That is a better version than the one that I proposed. If someone decides to stop the process, everybody needs to know that straightaway, rather than something getting lost in reporting or a medical practitioner or a doctor assuming that the person still wants assisted dying.

It is also important to record how many times somebody may have entered and dropped out of the process, which is covered in another group. That would check that someone is not being guided by mental health issues, suicide ideation or pressure. These things are important. We need a minimum standard, and doctors and patients need to know what to expect from each other. When the Delegated Powers and Regulatory Reform Committee looked at the Bill, it said that it lacked definition and that there was lots of unknown information being recorded.

We also have to think about non-compliance. I have read the Bill many times, and there is not enough in it about what happens if this information is not reported correctly. In Oregon—which has been mentioned many times—we know that around 70% of information is not recorded in the paperwork, so we do not know if people are having a good death or not. The Delegated Powers and Regulatory Reform Committee recommended that the Bill needed amendment. The timely reporting of information avoids any sanitation of the notes. It is very easy to forget—I do all the time. I scribble notes and come back to them, even just a day later, and cannot necessarily read what I have written. So this is crucial to how the process will work.

Proper recording should also be there to protect the clinician. This is the complication of the Bill. I have 13 amendments that I am talking to. Actually, I am asking for very little change to the Bill, but the Bill has to be amended in so many different ways. This group also fits with the previous group. In Another place, the honourable Member for Batley and Spen, Miss Leadbeater, said:

“I agree that, under the provisions of the Bill, the doctor will have a duty to lay out options available to the patient, if they meet the eligibility criteria—absolutely. That is the whole purpose of the Bill”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 4/3/25; col. 663.]

That is why it is so important that the information is recorded properly.

One of my passholders, Dr David Prosser, is a specialist in forensic psychiatry who works within NHS secure services and His Majesty’s Prison and Probation Service. We have spent a lot of time discussing the Bill: I have been talking to a doctor who could be at the very sharpest end of this. His view is that a doctor has to have very clear criteria against which any assessment is made.

It is also important to achieve operational consistency and quality, because we do not want information being recorded in a different way in different hospitals in different areas. A small business might have to provide more documentation to HMRC than a doctor working in this area. These amendments are not to overcomplicate the process; contemporaneous documentation is really important. This also fits into how the commissioner might oversee compliance with the process if the records are all kept in a different way.

When, in previous groups, we debated face-to-face discussions, the noble and learned Lord, Lord Falconer, said, in that situation:

“It is wrong and dangerous to try to use a phrase such as ‘reasonably practicable’”.—[Official Report, 30/1/26; col. 1214.]

Can the noble and learned Lord therefore explain why it is it okay to use that phrase when we are talking about recording data?

My Lords, I will speak to my amendments in this group. They aim to tighten the recording rules in Clause 7 and would make them even tighter than the seven-day limit proposed by the noble Baroness—to whom I am very grateful for her remarks. I propose that, where the discussion is with a practitioner in the patient’s own GP practice, the record of the relevant discussions and assessment is written and saved online on the same day; and that, in other cases, the practitioner must submit the record to the patient’s medical practice, and the commissioner, within a week. My amendments would also require the practice to include this in the patient’s online records. My amendments would impose similarly tight time limits for the submission of the co-ordinating doctor’s assessment.

Speed in recording discussions is of the essence. My experience as a historian, often working with hundreds of documents over a period of a week or even a day in history, suggests speed is important. These are government documents or the private records of officials and politicians. My work suggests that every hour that passes between a conversation and the recording of it brings a loss in accuracy and nuance. In the matter of deciding to take your own life, it is particularly important that the record is as accurate and precise as possible. The same-day requirement should make for greater accuracy, including details that might otherwise be lost if more time elapses. Even insignificant details can turn out to be important.

By contrast, allowing a period of time—the Bill says “as soon as practicable”—will tend to mean that details can be blurred into a general pattern that a doctor may form as a result of having seen a number of patients seeking an assisted death. The individual nature of the case may be lost. A report written up and submitted on the same day is less likely to be affected by hindsight or a desire to tailor the report to ensure that the practitioner will not be held responsible should a breach occur. These amendments in my name leave the medical practitioner the choice of writing a handwritten note at the time or just after the appointment, or keying it later that day into the computer. Although it may be argued that a doctor needs a longer period to see to the paperwork or that the medical practitioner should be allowed more individual choice about how they handle the recording, the obligation for speed and a formal process is imposed by these amendments and is justified, since a person’s life is at stake.

My Lords, I support the Amendment in the name of my noble friend Lord Shinkwin and the amendments of my other noble friends, and others. “Verba volant, scripta manent” means “Spoken words fly away, written words remain”. There is a reason that other noble Lords have pressed the issue about the collection of data and how specific it should be. I am going to make a broad reference to the experience in other jurisdictions because, without a record, the preliminary discussion will always be regarded as having been conducted properly, making it impossible to regulate the process.

In Australia, we have already seen VAD documentation failures serious enough to trigger disciplinary action and official findings of non-compliance, including unsigned and backdated declarations in Victoria, witnessing errors, late submission of mandatory forms and hundreds of timeliness-related form issues identified in Western Australia. In Victoria specifically, non-compliant cases included witnessing and late-form problems. In the last annual report, Victoria said one case was non-compliant because of an error in witnessing the contact person appointment form. Six more cases were non-compliant because forms were submitted late, including first assessment, consulting assessment and practitioner administration forms. The board also said a data audit had to identify historic cases where first assessment forms had been started but never submitted specifically to improve data integrity and reporting.

The issues and problems are even more significant and egregious in Canada. There was poor documentation. There are reports of,

“incomplete assessments … recurrent and excessive delays in reporting …frequent errors” and “missing information”. There has been a lack of evidence on safeguards, Dr Jaro Kotalik, a Canadian academic, noted that, despite federal regulations mandating data collection, there is

“no publicly accessible evidence that the eligibility criteria and safeguards prescribed by law were respected”.

Refusals were also not being tracked. The Canadian system does not require doctors to formally document their refusals, making it difficult to assess patterns of approval bias or doctor shopping.

Back in Australia, former Attorney-General for Victoria Robert Clark described the oversight structure as

“hear no evil, see no evil, speak no evil”.

He testified that the regulator simply checks whether paperwork is signed rather than auditing actual compliance. In one case where a doctor falsely certified a patient’s signature, the regulator merely asked for the missing signature instead of investigating the breach. I am not saying that that is likely to happen, but it is much less likely to happen—even the noble and learned Lord the sponsor will agree—if we have tight wording in the Bill, which is contained in these amendments. For those reasons, I strongly support the amendment of my noble friend Lord Shinkwin and others.

I just want to comment on some of these earlier amendments, particularly from the noble Lord, Lord Shinkwin. I think the noble Baroness, Lady Finlay—I cannot remember whether it was last week or the week before that—reminded us that people who are terminally ill, or who have discovered that they are very ill and likely to die, have a range of things they want to talk about. Whether they could opt out in some way will almost always go through their head at some stage. Whether it is legal or illegal, that is the way it is, and they will often want to discuss that. But that is not quite what the preliminary discussion for the purposes of the Bill is. It is a rather more formal preliminary discussion, which must cover a number of things—I think there are half a dozen in the Bill. That is not quite the same as the very early recording being proposed for any old discussion that takes place.

Of course, multiple things get covered between a doctor and a nurse, between the nurse and the patient, and between the patient and his doctor about what they are feeling and what they want. However, when it comes to something that is considered sincerely held, it is at that point that the preliminary legal discussion comes in as the first discussion to record.

A lot of these discussions will be recorded in the medical notes. My experience of reading many medical notes is that they do not cover what you would like them to, but on this occasion they often will. Nevertheless, it is not quite the same as what is proposed in the Bill. I urge people to concentrate on what is recorded in the Bill as having to be recorded for that preliminary discussion, because that covers a huge amount more than is being proposed in some of these amendments.

In light of the fact that the noble Baroness said this would be a formal discussion, does she agree that if we are sticking with the principle of choice, autonomy and accurate information, it becomes even more important that the patient is given, as fast as possible, a comprehensive copy of that discussion, and that it is not just left filed in a medical record but should be given to the patient for them to look at and reflect on?

I do not know what the noble Baroness’s discussions with her patients are like, but I remember mine very well. A lot of discussion that goes on between a doctor and a patient does not get formally recorded but is part of the everyday conversation of a consultation. I think we must recognise that we need, as the noble Baroness, Lady Fraser, urged us this morning, to get back to the realistic issues about what patients want and what they talk about.

It is important that we remember what the Bill is about. It is about trying to do something with what we have in normal day-to-day medical practice. It is not about imposing something else on what is ordinary day-to-day practice until such time as people have expressed—probably repeatedly—a settled wish to go down this route and they are terminally ill. Then the proper discussion kicks in and they need all that information. How much of it is provided to them in written form and how much orally is a judgment between the doctor, the nurse and the multidisciplinary medical team looking after them.

My Lords, I thank the noble Baroness. Her points are a helpful segue to the amendments that I will speak to, which are very much about the first formal conversation that takes place between a medical practitioner and a patient who is interested in exploring the potential of an assisted death.

I will speak to Amendments 213 and 216 in my name. Like others, I am grateful for the work that has gone into strengthening the Bill; the decision to record the preliminary discussion is significant and important. That said, there remains, in my opinion, a serious gap. Although records must be made, at the moment the commissioner who is responsible for the oversight of this system does not have access to, or visibility of, these records. I recognise that we are close to the Recess and I do not wish to lead noble Lords’ minds astray to their Tube journey home, but my amendments are an attempt to “mind the gap” that has been created here. I hope, in fact, they go a bit further and maybe fill the gap.

By simply making available to the commissioner these written records of the preliminary discussion, oversight becomes evidence based rather than simply allowing regulators to assume the best. This preliminary discussion is the gateway moment in what will be, for some, their final journey. In that moment, a doctor has first sight of the patient’s capacity. In that consultation, the patient first hears their full range of options. In that encounter, there may be the first warning signs of other problems—for instance, evidence of coercion or distress. Because, rightly, this conversation will go on in private, the doctor’s written record is the only durable account of what is likely to be a determinative discussion. As it stands, that account is not available to the scrutinising body, which is the very mechanism charged with monitoring the system.

This raises two questions. First, I ask my noble and learned friend Lord Falconer of Thoroton: if informed consent is the ethical foundation of this legislation then how is this meaningfully verified by the commissioner if the primary record of what was explained, asked and understood is not available to them? Without that record, it will not be possible for a commissioner to verify consent; rather, they will simply take it on trust. Secondly, my question for my noble friend the Minister is: how do His Majesty’s Government expect the commissioner to investigate concerns, or ensure compliance within the safeguards of this Bill, if they are not entitled to see the contemporaneous written record of the very discussion that initiated the process?

We all agree on the need for safety, and if these services are not sufficiently regulated I fear they may not be sufficiently safe. A regulator who cannot see the record cannot regulate the system. A commissioner who can examine only summaries cannot give the system a complete bill of health. There are wider implications too. If a family raises concerns about coercion, what is the evidential basis for any investigation? If a clinician is accused of misconduct, what information do they have with which to defend themselves? If Parliament or the public wish to understand how this law is operating, where is the underlying data that can provide the detail and confidence they seek?

We have, sadly, seen what happens when regulators do not have sufficient sight of the systems they oversee. Between 2005 to 2009, there were serious failings in Stafford Hospital, including widespread patient harm and avoidable deaths. Despite the presence of multiple regulatory bodies, including the Healthcare Commission, the Mid Staffs’ problems were not identified or acted on in time. Why? It is because the regulators relied on aggregated data targets and self-reporting; lacked access to, and failed to interrogate, evidence; and did not have full visibility of serious warning signs and complaints. The lessons learned from Mid Staffs help us to think about how we might mind and fill the gap in this legislation.

Compliance without visibility is not protection, and this is precisely what we need to guard against. From a practical perspective, these amendments are straightforward. They would not impose a new burden on the doctors; the record is already required. They would ensure that the record is shared with the commissioner, who is already acting as the regulating authority. They would align responsibility with capability, visibility with compliance and safety with oversight.

In all legislation, let alone a Bill as consequential as this one, we want services that can be trusted. For that, we need systems that can be scrutinised. A regulator that cannot scrutinise the record cannot regulate the system. These simple amendments would correct that, and I commend them to the Committee.

My Lords, last Friday we were talking about communication difficulties, whether through hearing, language or something else. In that context, the noble Lord, Lord Rook, has done us a service by proposing his amendments to make it simple and clear. The reason why this is important is that the Bill is basically a series of stages. People at stage 2 need to know what occurred at stage 1 and so on down the line, and to be effective the oversight has to be made available.

I am not a medical person, although I have a family member who is a medical professional, but I have seen at first hand how things can change in a hospital setting where a patient may be in one condition one day and a different condition the next. That is why I think reporting and the availability of records are so important in assessing how safe the process is.

I raise this because, by definition, a person who is in hospital is probably going to be receiving medication or multiple medications, and drug-induced psychosis, delirium or hallucinatory states can happen. These are temporary and reversible conditions, but delirium is a bit like a thief in the night: it creeps up unannounced. It is there one minute and gone the next. Unless people have a consistent record of how the patient has been responding and how that patient is assessed and that record is passed down the line from one stage to another, it is going to be extremely difficult to see whether these things have been occurring. Delirium can be the reaction of an individual to various medications that they are receiving. It is a sudden and temporary state of acute confusion and altered mental function. It can develop in hours and can involve impaired attention, disorientation, hallucinations, rapid shifts between agitation and lethargy, inability to concentrate, emotional swings and distorted thinking.

The noble Baroness, Lady Grey-Thompson, said that perhaps her Amendment 214 is overprescriptive. Let us not argue about the minutiae, but the principle is that the material needs to be available not only to the professionals who are dealing with each stage. As the noble Lord, Lord Rook, has just told us, to be safe, somebody has to have oversight and the information.

Setting aside all the heavy-duty communication issues that we discussed last week, because a patient is in hospital the chances are that they are receiving significant amounts of very strong medication. I have seen with my own eyes that it can induce a situation of delirium just like that, which can then go away. It is temporary, so a person might be in one mood at the initial stage and in a different condition at the next stage. People have to see and know that, and it has to be recorded, because this is not just any old thing: this is a decision to end a life. To have some fundamental safety mechanisms, records have to be kept and they have to be shared. The noble Lord, Lord Rook, gave us an analysis of the Mid Staffs situation and, sadly, there have subsequently been others. They are not an unusual occurrence, so if there is anything we can do to alleviate or minimise that problem, let us do it. I see no reason why not.

I draw the attention of Members to the fact that these conditions occur in a hospital almost by definition, because of the patient’s receipt of very powerful medications. Therefore, we must consider the condition that a person might be in at the initial stage, bearing in mind that one of the conditions is distorted thinking. Let us make it safe, ensure that the records are kept and distributed, and ensure that those who need to see them get to see them.

My Lords, on the same principle of making it safe, I will speak to my Amendment 219, which would open an extra channel of communication. It would require the person’s GP to disclose relevant information about the person’s eligibility for assisted dying. That information would be disclosed, first, to the doctor who conducts the preliminary discussion; secondly, to the co-ordinating doctor making the assessment; and, thirdly, if the GP believes that the person may not be eligible, to the commissioner.

The principle behind the amendment is simple. The doctors and the panel need to be as informed as possible about the applicant in those circumstances. A GP may well have crucial information and, at the moment, the Bill does not give a clear opportunity for that information to be shared. The GP’s only role in the Bill, as has been said previously, is to receive notifications. As my noble and learned friend Lord Falconer put it,

“the GP, in the structure of the Bill, is not somebody who has to be involved … the GP is somebody who is receiving information

This seems to be a missed opportunity. It is not hard to think of cases where a GP might have relevant knowledge. There are instances of fluctuating capacity, where a GP might well know more about the person and their mental capacity than the assessing doctors and the panel. There are cases of coercion, where the assessing doctors might miss the signs. Where there is doubt over the person’s illness and their six-month prognosis, a GP’s input could be essential.

The Bill requires the assessing doctor to make such inquiries of professionals who are providing, or who have recently provided, health or social care to the person, as the assessing doctor considers appropriate, but that is quite a broad provision. Crucially, it is a one-way process. The assessing doctor can make an inquiry with a person’s GP, but the GP is not supposed to offer helpful information unless they are specifically asked for it. That seems an obvious gap.

In a previous group, we discussed amendments that would give a greater role to the GP, but those amendments were criticised as being unrealistic. This amendment, by contrast, would make a small change, which would enhance the protections already in the Bill.

The report of the Demos commission, chaired by my noble and learned friend, said that a key element in the assisted dying regime was

“a doctor who, where possible, knows the person well”.

That doctor could be the patient’s general practitioner. The Bill does not guarantee that, but my amendment would ensure that, if the GP has significant, first-hand knowledge, that knowledge will be taken into account and not overlooked.

My Lords, I will be very brief. I will speak to my Amendments 354A and 432A, which are both about making sure that relevant information from the preliminary discussion is made available to the commissioner and the panel. The reason why I can be brief is that they are similar in what they are trying to achieve to the amendments tabled by the noble Lord, Lord Rook. He set out clearly the rationale for doing so, and I can simply agree with what he said in support of my amendments.

I will comment on the amendments in the names of the noble Lord, Lord Shinkwin, and the noble Baroness, Lady Grey-Thompson. The theme behind all of them is to ensure that there is timeliness in reporting and sufficient clarity about what is recorded to give people confidence that the process has been carried out properly. The noble and learned Lord, Lord Falconer, has been very clear that there is a clear process set out in the Bill, but it is important to give people confidence that it is documented, comprehensively and on a timely basis. There is clearly a debate to be had about being too specific about the timeframe or what is recorded. However, ensuring that there is sufficient detail, and that it is done sufficiently quickly, is important. I commend those other amendments to the Committee.

My Lords, I hope the Committee will forgive my brevity—I will focus on the few amendments I have tabled in this group.

As the Committee has heard, many of the amendments relate to the preliminary discussion or to recording general medical information as the patient progresses through the procedure. However, as indicated by the noble Baroness, Lady Grey-Thompson, to whom I am grateful for her kind words, my amendments focus on a particular, very important issue.

My Amendments 562A, 563A and 564A seek to probe the circumstances in which it would be appropriate for a patient’s decision to cancel their first or second declaration not to be recorded immediately. There is a point of principle here. While I understand that there can be a genuine debate about whether a decision to initiate the procedure should be recorded and, if so, how quickly, I am concerned that a decision to pull out—which is what a decision to cancel is—whether after the first or second declaration, should not be left hanging there. I do not understand why that should be recorded only as soon as practicable and not immediately.

As the noble and learned Lord will be aware, and for the benefit of the Committee, “immediately” in English law generally means forthwith—as quickly as possible. You will not be in breach of the statute if you do not record it within three and a half seconds. The courts will always take circumstances and context into account. However, “immediately” gives that sense of urgency, which is very important. It is particularly important—this is why I tabled these amendments—when somebody is cancelling or pulling out. We must not have any risk whatsoever that another medical practitioner or healthcare professional might think that the person is still in the system, so to speak, when they have in fact cancelled their first or second declaration.

Also, without too much threshing through the undergrowth on a Friday afternoon—although it always is a Friday afternoon for this Bill—this is particularly important in Clause 24(3). Clause 24(2) deals with when

“the notice or indication … is given to a registered medical practitioner with the person’s GP practice”.

“Immediately” is appropriate there, for the reasons I have given. It is all the more important in Clause 24(3), where

“the registered medical practitioner to whom notice or indication of the cancellation is given” is not within the practice. The problem there, as drafted, is that you have two uses of “as soon as practicable”. First, the practice must be notified “as soon as practicable”, and then the practitioner notified must “as soon as practicable” record the declaration. That doubling is problematic as well. “Immediately” in this circumstance ought to be the key test.

Therefore, I invite the noble and learned Lord, Lord Falconer of Thoroton, when he replies, to explain whether he believes, as I do, that the failure to record a declaration cancellation immediately might result in harm coming to a patient, and how, if not by way of my Amendment, we mitigate that risk.

We are repeatedly told by the Ministers at the Dispatch Box that the focus of the Government’s position is whether this is workable or practicable. Have the Government looked at whether immediate recording is practicable? I would be interested in knowing the Minister’s thoughts and the Government’s position on that point.

My Lords, I thank noble Lords for an important and thoughtful debate this afternoon. As I have already made clear, I will limit my comments to amendments about which the Government have major legal, technical or operational workability concerns. I will speak first to Amendments 212, 215, 217, 218, 214, 557 to 559, 562, 563, and 564, tabled by the noble Baroness, Lady Grey-Thompson, which would introduce specified time limits for when duties in the Bill must be undertaken. Similarly, Amendments 212A, 212B, 215A, 217A, 218A, 218B, 320C and 321A, tabled by the noble Baroness, Lady Lawlor, specify a timeframe by which records of a person’s preliminary discussion and first assessment must be recorded in their medical notes.

As drafted, the Bill requires this information to be recorded “as soon as practicable”. As the Government have not developed a service delivery model, I cannot confirm that the timelines proposed in these amendments are workable. Amendments that change the duty to record information from “as soon as practicable” to “within 24 hours”, or that require the co-ordinating doctor to make a report on the same day they see the person, may result in a duty that is difficult or impossible to discharge. As drafted, these amendments may increase the risk of practitioners facing legal or professional action. For example, if they fail to comply with this mandatory duty due to being sick or on leave, the amendments do not afford any discretion or flexibility.

Amendment 219, tabled by my noble friend Lady Keeley, says:

“The registered medical practitioner with the person’s GP practice must disclose to the medical practitioner conducting the preliminary discussion any information in their possession that may affect the individual’s eligibility for assisted dying and such information must be taken into account by the co-ordinating doctor” when undertaking the first assessment. Proposed new subsection (5) would require a registered medical practitioner with the person’s GP practice to notify the commissioner if they have

“reasonable grounds to believe that an individual does not meet the eligibility” requirements for an assisted death.

The amendment is not clear on a number of key details, such as who in the GP practice is subject to these obligations, when the information must be sent, how the information is to get to the co-ordinating doctor for the first assessment, whether it is a continuing or a one-off obligation, and how the duty is intended to operate with Clause 31. This duty may also mandate information sharing with the commissioner in relation to people who are considered by a registered medical practitioner within a GP practice to not be suitable for an assisted death, even if the person in question is not actively seeking an assisted death under the Bill. My noble friend Lord Rook’s question about whether the powers in the Bill are sufficient for the commissioner, or whether further powers should be granted, is one for Parliament to decide in the eventuality.

Lastly, Amendment 561, tabled by the noble Baroness, Lady Grey-Thompson, would amend Clause 24 to require any preliminary discussion, first discussion and second declaration to be recorded in a person’s medical records, including the reason for not continuing to the next stage. It is not clear who must undertake these duties or what would happen if the person seeking assistance did not give a reason for why they did not wish to proceed. Where legislation seeks to impose a duty, it must specify who that duty is placed on. That is particularly important, given that an intentional or reckless failure to comply with the duty under Clause 24 is a criminal offence. The amendment would require further policy and legal work to clarify the intent and ensure that the drafting was workable.

To respond to the noble Lord, Lord Wolfson, Amendments 562A, 563A and 564A would not have major workability concerns. Noble Lords will be aware that other amendments in this group have not had technical drafting support from officials. The issues raised by the other amendments are rightly a matter for noble Lords to consider and decide, but I note that the way they are currently drafted means that they may not be fully workable, effective or enforceable.

My Lords, these amendments concern the preliminary discussion and the timing of the recording not just of that discussion but of cancellations. They would raise obligations on GPs to provide information, and would provide the need to give the commissioner material so that he can properly perform his functions as, in effect, a regulator of the process.

I want to adopt what the noble Baroness, Lady Murphy, said. There needs to be some degree of understanding about Clause 5: it is a requirement that has to be gone through before one can have an assisted death. The effect of the clause is that there has to be a preliminary discussion. That discussion requires a doctor to go through with the patient their diagnosis and prognosis, any treatment available and its likely effect, and all appropriate palliative hospice or other care, including symptom management and psychological support, and to offer to refer them to a palliative care person, so that the patient has a balanced view about what their options are before they embark on the process of an assisted death. That means going through the safeguards. What is more, the Bill currently requires that that conversation is recorded as soon as practicable by the person with whom the patient has had that conversation.

That is the framework within which one looks at the amendments. The first proposal is from the noble Lord, Lord Shinkwin, who proposes that any conversation that a patient has with any doctor, whether the doctor raises an assisted death or the patient does so, should be treated as a preliminary discussion of the sort that I have just described, and that discussion must be recorded. I understand why the noble Lord has put that in but I do not think it is either appropriate or practical. There is the preliminary discussion requirement and the requirement that preliminary discussions be recorded because that is a safeguard. It should not stop any patient having a conversation, formal or informal, with their doctor in which they raise issues about their care. For example, they might want to say, “Tell me what you know about assisted dying”, or, “Have you ever seen one?” If you have that conversation, I think it should be recorded, but that does not make it a preliminary discussion. It can be before the process has started. So, although I understand why the noble Lord, Lord Shinkwin, has tabled the Amendment, I am not minded to accept it because I do not think it is necessary, appropriate or practical.

The noble Baronesses, Lady Grey-Thompson and Lady Lawlor, wish—in relation primarily to the preliminary discussion but also to other areas—to reduce the words

“as soon as reasonably practicable” to either immediately, within 24 hours, straight away, within seven days, and so on. Subject to the question of cancellation, where I think there is a different case, I am not in favour of changing the words

“as soon as reasonably practicable”.

That seems to be the appropriate test when you are recording something. It has to be looked at against the framework. It just does not seem appropriate to change that when we are dealing with doctors who will have other pressures on them, but I underline the importance of there being a record; hence the requirement for it be done

“as soon as reasonably practicable”.

The amendment from the noble Baroness, Lady Keeley, suggests that a GP has to give information to one or other of the assessing doctors. I assume it would apply right across the board, not just to the preliminary doctor but to the assessing doctor. As the noble Baroness, Lady Keeley, knows, there is a requirement in Clause 12 on both the independent and co-ordinating doctor to examine the person and their records, and to

“make such enquiries of professionals who are providing or have recently provided health or social care to the person as the assessing doctor considers appropriate”.

I have also tabled an amendment that reflects discussions we had earlier, which suggest that both those doctors should also talk to the multidisciplinary team responsible for the care of the patient to ensure they get the full amount of information available. I completely accept the underlying principle behind the amendment from the noble Baroness, Lady Keeley, but the steps which are mandated are probably enough.

The noble Lords, Lord Rook and Lord Harper, both want there to be a specific requirement for the preliminary discussion record to be given to the commissioner. Noble Lords will know that Clause 44 allows the Secretary of State to make regulations requiring any doctor involved to notify the commissioner of any part that they play and of any information. Noble Lords will know that, under Clause 49, the commissioner is under an obligation to

“monitor the operation of the Act”,

and that the obligations of confidence do not apply when providing information to the commissioner. I think those provisions are sufficient. I do not think the proposals that the noble Lords, Lord Harper and Lord Rook, have made are necessarily unreasonable, but it may be that the right approach for the commissioner to take is to decide which documentation he wants to have on a habitual basis. I completely accept what the noble Lords are saying, which is that the commissioner has to be in a position to perform his regulatory function, but it is probably for him to decide what documentation should come to him habitually. I do not think it is appropriate to amend the Bill in that respect.

Finally, I turn to the point made by the noble Lord, Lord Wolfson, and the noble Baroness, Lady Grey-Thompson. I note that the Minister said that there are no workability issues. I am struck by the argument that they both made, which was that this is obviously so important that if you give a cancellation then, to avoid any problem, it should be immediately notified. The noble Lord, Lord Wolfson, made a good point that there is a two-stage process before you get to it. I think I should consider that; it is an important amendment.

My Lords, I remind the Committee that the noble Lord, Lord Shinkwin, is taking part remotely. I invite the noble Lord to reply to the debate.

My Lords, I am mindful that noble Lords will be counting down the minutes to the start of a well-earned Easter Recess, so I will keep my remarks as short as I can. I hope I will be forgiven if I do not refer to individual contributions, but I was struck by the strong consensus that record keeping, as would be provided by the amendments in this group, is crucial—not just to engendering trust in the system but for providing for patient safety, especially as conditions towards the end of life will fluctuate, particularly in the case of delirium. I thank noble Lords for their contributions.

Although I disagree with the noble and learned Lord that it is not appropriate to report any discussions about assisted dying, I believe that keeping records on assisted dying is vital. I feel I must thank him, as something he said on 20 March—the 12th day in Committee—made the case for my Amendment 193 and the other amendments in this group perfectly.

Noble Lords may recall that the noble and learned Lord caused the House to be convulsed in laughter by a quip he made when my noble friend Lord Frost appeared in the Chamber after my noble friend Lord Gove had addressed the amendments in the name of the noble Lord, Lord Frost, in his unavoidable absence. According to parliamentlive.tv and the transcript that goes with it, at approximately 4.10 pm on 20 March, on seeing the noble Lord, Lord Frost, return to the Chamber, the noble and learned Lord quipped, “Sorry. Perhaps he shouldn’t have bothered”.

It was brilliant for a number of reasons: its timing, its spontaneity and, in particular, its piercing, if inadvertent, honesty. At a stroke, the noble and learned Lord exposed brilliantly—in the true sense of the word, of shining a light on something—his overall approach to dealing with 14 days of dismissing amendment after amendment and allowing Dignity in Dying and other supporters of the Bill to denigrate noble Lords’ carefully considered and well-intentioned attempts to mitigate the worst dangers posed by the Bill.

Noble Lords would to be forgiven for asking why this is relevant to today’s consideration of this group of amendments. The reason is this: the amendments we are discussing highlight the need for rigorous record-keeping at the preliminary discussion phase and, indeed, beyond, throughout the assisted dying process. Yet noble Lords may be interested to know that, despite it being clearly captured on parliamentlive.tv, both on screen and in the accompanying transcript, as I have already mentioned, there is no record of the noble and learned Lord’s quip in Hansard.

I mean no criticism of our wonderful Hansard team, but I find it rather odd that the official record should be inaccurate in this specific respect. I therefore hope it helps the House, and the noble and learned Lord, that his significant remarks to my noble friend Lord Frost—“Sorry. Perhaps he shouldn’t have bothered”—are now on the record in Hansard. The fact that they were omitted surely provides compelling evidence in support of rigorous record-keeping, as provided for in Amendment 193 and the other amendments in this group. I hope that we can all accept that there is no such thing as too much transparency when it comes to the matters of life and death that we are discussing in relation to the Bill.

In closing, I entirely endorse, as my noble friend Lady Fraser of Craigmaddie, did, the remarks of the noble and learned Baroness, Lady Scotland—that we all like each other a lot, and wish all noble Members a very happy Easter. I beg leave to withdraw the amendment.

Amendment 193 withdrawn.

Amendments 194 to 200 not moved.

Amendment 200A had been withdrawn from the Marshalled List.

Clause 5 agreed.

Amendment 200B not moved.

Clause 6: No health professional shall raise assisted dying with a person under 18

Amendments 200C to 202 not moved.

Amendment 203 had been withdrawn from the Marshalled List.

Amendments 204 and 205 not moved.

Amendment 206 had been withdrawn from the Marshalled List.

Amendments 207 to 211 not moved.

Clause 6 agreed.

Clause 7: Recording of preliminary discussion

Amendments 212 to 220 not moved.

Clause 7 agreed.

Amendments 221 to 223C not moved.

My Lords, before I adjourn the House, I wish all noble Lords, clerks and doorkeepers a wonderful Recess.

House resumed.

House adjourned at 2.48 pm.