Baroness Merron (Lab)

My Lords, I am grateful to noble Lords for their contributions to this debate. Amendment 87, tabled by my noble and learned friend Lord Falconer, the sponsor of the Bill, would clarify the intention of the current Clause 2(2), which is to prevent someone becoming eligible for an assisted death due to an eating disorder. Amendment 87 replaces Clause 2(2). The Bill’s sponsor in the other place indicated that they would look to improve the clarity on who is and who is not eligible in this clause. The noble Lord, Lord Harper, asked about interpretation. I hope those comments will be helpful, because the eligibility of people with eating disorders under the Bill is, of course, a policy decision, not one for government. I am sure that my noble and learned friend heard the noble Lord’s point. This amendment, as is usual practice, has been drafted with the technical support of the Government, within the policy intent of the sponsor and of the other place. The amendment excludes from the definition of “terminally ill” any illness or disease caused by the person not eating or drinking, where not eating or drinking occurs as a result of a mental disorder. It also makes it clear that this expressly covers cases of limited eating or drinking. Given that Amendment 87 replaces Clause 2(2), if noble Lords accept it, a number of the other amendments in this group will, of course, fall away. I turn to detailed comments on amendments that the Government consider have major legal, technical or operational workability concerns. Amendment 89, tabled by the noble Lord, Lord Polak, would lead to a person not being considered terminally ill under the Bill solely as a result of withdrawing medication, hydration or life-sustaining devices. Amendment 91, tabled by the noble Baroness, Lady Finlay, would mean that those whose refusal of nutrition is due to a mental illness would not be considered terminally ill under the Bill. Amendment 92, tabled by my noble friend Lady Debbonaire, would exclude a person from eligibility if their terminal illness was “solely as a result of standard medical treatment being refused or withheld”. This amendment could have the potential undesirable impact of undermining a person’s autonomy and right to make informed choices about their own medical care. The definition of “standard medical treatment” is unclear here: the exclusion from eligibility could apply to a patient who refuses one standard medical treatment in favour of an alternative standard medical treatment. A refusal of standard medical treatment would mean that a person would become ineligible for ever, even where their refusal had no impact on their prognosis. Amendment 101, tabled by the noble Baroness, Lady Parminter, would prevent people with physical effects or complications of a mental disorder being eligible for an assisted death. This may be difficult for clinicians to apply, as “physical effects” is an undefined term. The current drafting also layers a “for the avoidance of doubt” provision on top of another “for the avoidance of doubt” provision, which could lead to ambiguity about how the legislation should be interpreted. I heard the noble Baroness say that she was concerned about the drafting, so I hope those comments will be helpful to her. Amendment 103, tabled by the noble Baroness, Lady Fox, would remove from eligibility people who, because of the effect of a mental disorder, refuse life-saving treatment and develop a terminal condition. Where amendments limit eligibility for specific groups, they could give rise to legal challenge under Articles 2 or 8, with Article 14, of the ECHR if such restrictions are not objectively and reasonably justified. As I have said, it is for noble Lords to consider the amendments in that light, should they wish to.