Contribution
My Lords, I am grateful for the contributions on eligibility and definition of terminal illness. Once again, I will keep detailed comments limited to amendments on which the Government have major legal, technical or operational workability concerns.
First, I will give a reassurance to your Lordships’ House in response to the observations of the noble Lord, Lord Harper, and the noble Baroness, Lady Grey-Thompson, about the modern service framework on palliative care and end-of-life care. We acknowledge that there has been a drafting error, which the noble Lord and the noble Baroness picked up on. The drafting error is in the national cancer plan. I reassure your Lordships’ House that, as has been stated previously, the interim update will be published this spring and the full modern service framework will follow in the autumn. That issue was purely down to a drafting error.
I turn now to the amendments. Amendments 71, 77 and 79 were tabled by the noble Lady, Baroness Finlay, and Amendments 83A, 104 and 105 were tabled by the noble Lord, Lord Polak, my noble friend Lord Hunt of Kings Heath and the noble Baroness, Lady Grey-Thompson. Noble Lords may wish to note the Government’s workability concern with this set of amendments. Key terms and concepts in the amendments are undefined, which may introduce uncertainty when determining who is eligible under the Bill and, particularly under Amendments 71, 77 and 79, what it means to slow a disease. There is a risk that unclear eligibility criteria could result in ambiguity for those applying the legislation, which may give rise to legal challenges to decisions made under it.
Amendment 105 could also give rise to legal challenge on the basis that excluding people with particular conditions from assisted dying may not be justified under Article 2 or Article 8 of the ECHR and may amount to unjustified discrimination under Article 14. Any differential treatment would need to be objectively and reasonably justified in order to comply with ECHR obligations.
Amendments 74 and 94, tabled by the noble Lord, Lord Taylor of Holbeach, would exclude from the definition of “terminal illness” any individual whose condition can be meaningfully halted or controlled by available treatment. Clinically, it may be difficult to determine whether an illness or disease can be “meaningfully halted, or controlled” by treatment, and it is possible that an illness or disease could have a short halt before deterioration starts again. This will make it difficult for clinicians to decide whether a person is “terminally ill” and eligible for assisted dying and is likely to lead to challenges to decisions. These amendments may result in a person becoming ineligible, irrespective of whether they choose to take the available treatment.
Amendment 75, tabled by the noble Baroness, Lady Finlay, would amend the definition of “terminally ill” by removing the test of death being reasonably expected in six months, and replacing it with a requirement that the rate of progress of the disease, with treatment in line with NICE guidelines, indicates that death can be expected within six months. Introducing the concept of treatment in accordance with NICE guidelines may create difficulties, as the amendment would require clinicians to assess the patient’s prognosis as if they were treated in accordance with NICE guidelines. This may result in a person becoming ineligible, irrespective of whether they chose to have treatment in accordance with NICE guidelines. This amendment therefore requires clinicians to make a judgment on a potentially hypothetical basis.
Amendment 80, tabled by the noble Baroness, Lady Lawlor, would provide that a person is “terminally ill” where their death has an 80% likelihood of occurring within six months, according to the written opinion of two specialist, consultant-level hospital doctors. These doctors must be knowledgeable about and have experience of treating patients with the progressive illness in question. This amendment would create significant operational workability concerns. It would require the clinician making a determination about the person’s prognosis to meet a high threshold of certainty. The criteria could be especially difficult to meet for a person who has a rare progressive illness or disease, about which there may not be widespread clinical knowledge or experience.
Amendment 82, tabled by the noble Lord, Lord Polak, would require two consultants to provide a view on an individual’s life expectancy, and for them to determine that their death can be “highly probable” within six months, rather than the current drafting of, can be “reasonably expected”. Several terms are not defined in the amendment and are likely to lead to ambiguity, including operational issues, around which doctors are to assess life expectancy and to what standard.