Contribution
The hon. Gentleman makes a fair point. I think we can expect that the psychiatrist on the panel will subject the requirement on mental capacity, in particular, to some considerable professional scrutiny, but nobody on the panel, whatever their professional competence may be, is capable of doing the job properly if they do not have access to the necessary evidence, so we must make sure they do.
The fact that the panel may sit in public is not a sufficient answer to the problem that I am raising. First, that is because there will be many panels considering many cases, and we cannot expect those who have evidence of coercion, for example, to watch the lists in case the person they know happens to appear in them—when, of course, they have no expectation that they will.
Secondly, the panel will not sit in public in every case. Paragraph 6 of schedule 2 says:
“Panels are to determine referrals in public”.
That is the clear presumption, and it is welcome, but paragraph 6(2) says:
“The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private.”
I can see nothing in the Bill about any grounds on which the panel chair may refuse such a request, so it will occasionally, or perhaps often, be the case that the panel will sit in private, and no one will know what it is doing.
The next issue is the way a panel will go about making the judgments it needs to make, which brings me to amendment 48. As we all know, most judicial and quasi-judicial hearings in this country are conducted on an adversarial basis. That is, by the way, a reference not to the tone of proceedings but to the presentation of both sides of an argument so that the tribunal can reach the right conclusion. That is what our judges and lawyers are used to. That matters here because this quasi-judicial stage in the process of seeking assistance to die is being offered as important reassurance that things will be done safely, but that reassurance cannot be offered if panels are asked to adopt a process for which they are ill-equipped. That is not a criticism of those who will sit on the panels.
I accept that, under the Bill as it stands, a panel may hear from and question any other person beyond the person seeking the certificate and the relevant doctors, but as I have sought to address in amendment 47, as things stand those other persons will in all likelihood not know about the panel’s proceedings and therefore will not come forward of their own initiative with the evidence. The panel would have to go out and find them, and how exactly is it to do that? How does the panel know who may have relevant evidence to give, and with what resources will it seek them out?
The position on what resources will be available more generally for the process under the Bill remains unclear, but the impact assessment suggests that panels will be expected to deal with two cases a day. That suggests that they will spend somewhere between three and four hours on each. That is not much latitude for further investigation.
Amendment 48 proposes that the commissioner should notify a designated authority—the Secretary of State can choose the appropriate one—of an application for a certificate. That authority would then supply to the panel an advocate with the responsibility to raise arguments against the grant of the certificate, which the panel would not otherwise hear. I think that is important, because it would ensure that there was another participant in the panel process who could at least help the panel by prompting consideration of concerns, reservations or grounds for further inquiry before decisions were made.
My amendment 49 is about what happens once a panel has reached its conclusion. Clause 16 provides for a person seeking a certificate to be able to ask for reconsideration of a panel’s refusal to grant one, but of course the Bill currently provides no equivalent right to challenge the decision to someone who believes that a panel should not have granted a certificate. Anyone in that position would need to resort to judicial review, which is complex and expensive.