Baroness Coffey (Con)

I am grateful to the noble Lords, Lord Harper and Lord Empey, for signing this amendment. I will also speak to my Amendment 65 and consider an amendment put forward by the shadow Front Bench. It is disappointing that the Justice Minister is not in her place on the Front Bench today, because in discussing these amendments I want to consider the important issue of assessing whether someone has capacity. The MoJ is responsible for that, and for several of the other matters I wish to speak on. We are only at Clause 1(3), but this is a key element to consider carefully: where do all these issues have to happen, and do they have to happen face to face? As the Bill reads currently, it suggests that only the initial request for assistance, the first declaration, the doctor’s assessment and the second doctor’s assessment, and then the second declaration, have to happen while the person making all these requests is in the country. No other part of the Bill, including preliminary discussions and the act itself—all these other things—has to happen in this country; the person does not have to be here. I think I have made it clear in a series of amendments that I have brought to the Committee that my concern is how this becomes something that is decided not just on paper. There should be real interaction, and I am trying to understand how the Bill will work in practice. That is why I have asked a series of questions on whether or not the terminally ill person making the request has to be in the country. We should get into other aspects, such as whether the panel has to be here. We had a debate earlier in Committee, during which I made a clumsy attempt to make sure people had to be in this country. As I said, you can be ordinarily resident in more than one country at the same time. I want to continue to focus on this being a person-based process—I do not like using the term “patient-based process”, as I do not consider this to be a health treatment—and a lot of that is about where somebody is and whether there is a face-to-face link. Recently, in a different policy, the Government rightly want to accelerate and increase substantially the number of face-to-face assessments for consideration of eligibility for sickness benefits. A lot of that was changed during Covid because, frankly, it was not practical to undertake that process. It has been gradually brought back and needs to be accelerated. The thinking alongside that policy is critical to the application of this Bill. I have interpreted Clause 1(3)(b) as meaning that only “steps under sections 10 and 11” have to be done by persons in England and Wales, and that is the initial assessment. I put it to the Committee that a lot more of this should be done face to face. As the late James Munby pointed out, it is absolutely right that the panel should be considering this process and looking into this. I am conscious there will be medics here who have perhaps an even greater understanding than I of how the variety of assessments should be done face to face. What happens when people are making a declaration? Are we sure that somebody is not in the room, giving them the eyes so that they will give the right answers? How are we to understand whether coercion can happen or not? In a documentary undertaken by ITV, the Bill’s promoter, Kim Leadbeater, expressed concerns about what happens in Oregon, where a lot of this is done by video link. I believe she was uncomfortable and would consider adding an amendment to make it clear that consultations with doctors could not be done by video call and should be done in person. That has not been done so far, and no explanation has been given. That is why I have tabled these amendments. They would be a very important way of making sure there are safeguards so that, as we go through this novel process to us— I appreciate it is not novel to the world—we have every confidence that a lot of the safeguards which people are concerned about are going to be appropriately applied. Last week, a discussion on a group brought forward by the noble Lord, Lord Birt, gave us a picture of how this could look. Indeed, the amendments tabled by the noble and learned Lord, Lord Falconer, have started to touch on aspects of this, such as how a commission can happen. But I can see that, very quickly, especially bearing in mind some of the amendments last week—though I appreciate that the noble and learned Lord did not accept them—a panel could be meeting every day. Right now, it could involve somebody on holiday in Tenerife and somebody else elsewhere meeting on Zoom or Teams or whatever. That could quickly become a routine tick-box exercise. That is the very reason the late Sir James Munby pointed out that this should not be given to judges—what is the point of having a judge if it will be just a tick-box exercise? We need to be careful that we do not end up in that situation. In Amendment 65, I have suggested specifically what needs to be done face to face: the preliminary discussion, the request—as is in the Bill—and the witness. The witness should be there and it should be face to face. That seems sensible. We have the first and second assessment already there, but I think we could go further. What about the interaction with the independent advocate? Is that going to be done down the phone? These are the serious things which we need to consider. Should the panel meet face to face with the person applying? I appreciate that, in Amendment 320A, the assumption is that it should be face to face, but perhaps with exceptions by a video link. Again, when I initially started observing this at the other end, I thought that this would happen. What seems to have evolved is that a lot of this will be done remotely. The only thing I have not included in Amendment 65 is the actual doctor being there and the assessment happening in this country—although that is not specified in the Bill. Clause 25(3) says that the co-ordinating doctor has to be there in person, although under the following clause that can all be delegated to somebody else. I do not want to overly labour the point in consideration, but I hope noble Lords will give some thought to how they want to see the Bill work in practice. It may be that people are happy for this all to happen via video and are wondering why we are getting in the way, given that this is about autonomy. However, these would be sensible amendments to consider to make sure that, while no Minister yet has said this is a safe Bill, it is as safe as possible. We need to look at the operation of it. It is certainly the case in other parts of the health system that a lot of this would not be acceptable and would have to be done face to face. It is not a case of overengineering the Bill or leaving it to regulations. We should be clear in Parliament that this is what we are going to do. I am conscious of Amendment 320A, and I appreciate that my noble friend Lord Evans of Rainow, in Amendment 376, has particularly singled out “in person” for parts of Clause 12. I get that some people may be so terminally ill that perhaps a video link might be used, but that should be exceptional, if we are going to go down that route at all. I look forward to hearing my noble friend explain why that is the case and how it can be administered. With that, I beg to move.