Contribution
My Lords, I have not previously spoken on this Bill, so I hope that noble Lords will understand that I approach the tabling of amendments and speaking to them simply from the point of view of trying to ensure that the Bill is workable. It is of course a Bill which is intended to be provided essentially by the National Health Service, so with these amendments in this group I am entirely saying that we must make this service workable by the National Health Service. If I had to put what I have to say into one sentence it would be: let us have definitions in relation to eligibility by reference to residence that accord with those definitions that are presently used by the National Health Service and let us not try to ask the NHS to become an immigration inspector. I am afraid that there is also the longer version, but I will try to keep it as short as I can.
I have tabled Amendments 11B, 258B, 305A—with my noble friend Lord Howe—306C and 449B. From my point of view, they are not about trying to bring Scots into England and Wales for this purpose; they are about aligning the definitions in the Bill for a service provided by the NHS with the definitions that are used day by day in the provision of NHS services. This is not a bureaucratic issue; it is a practical issue. If the NHS is providing somebody with a service which, in the current circumstances, may be something of a substantial character relating to what develops into palliative or end-of-life care, it should be in a position to provide an assisted dying service, if the person is eligible for that service.
I leave aside the question of whether they come from overseas or Crown dependencies because those persons would not be ordinarily resident in the United Kingdom, and they are probably not registered with a medical practice in England Wales, so they would not be eligible for those reasons. It comes back to the term “ordinarily resident”, which, as the noble Baroness, Lady Finlay, correctly said, is not defined in statute. It is understood in the National Health Service and wherever it is used by the case she referred to, R v Barnet London Borough Council, ex parte Nilish Shah—the Shah case—in which Lord Scarman said that “ordinarily resident” is where a person normally lives
“voluntarily and for settled purposes”,
forming part of the regular pattern of their lives.
It appears in statute, in the sense that the NHS Wales Act requires that services be provided for those persons who, for the time being, are ordinarily resident in Wales, but there is no further definition of “ordinarily resident”. The charging overseas visitors legislation is secondary legislation, but it uses the ordinarily resident test.
What is interesting in this context is that, although “ordinarily resident” is in theory a test of whether one has free access to NHS services or is subject to charging, in practice, when somebody registers with a general practice—no pun intended—they complete form GMS1, which asks those from abroad to identify whether they would be subject to visitor charging outside the practice. But the form also states that:
“Anybody … can register with a GP practice and receive free medical care from that practice”.
So, as far as the NHS is concerned, primary care—essentially community care and everything other than secondary care—is available free to people who are ordinarily resident, and it does not ask or check. From my point of view, the most important thing we should absolutely have in our minds is: are we asking the NHS to change all the practices of its recent history and do something completely different?
I will turn a longer speech into a short speech. My noble friends Lord Moylan and Lady Coffey have tabled some very interesting amendments. My noble friend Lady Coffey’s is interesting, because the question of domicile is a very challenging one in this context. But we would be asking the NHS to become not only immigration inspectors but tax inspectors, since the question of where one is domiciled is a tax issue as well as an immigration issue. I do not think we need to go there at all. All these amendments would do is simply take out all the other amendments, but they also challenge what is in the Bill.
Clause 1 refers to a person who
“is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration”.
In the NHS, I am not aware that anybody tests whether somebody is ordinarily resident in England and Wales. They simply ask whether you are ordinarily resident in the United Kingdom; it is a matter of whether one is charged for NHS services or not. If somebody from Scotland—a later group will examine this in more detail—registers with an English practice, they do not say, “Are you ordinarily resident in England?” They do not ask at all. If they did, they would ask, “Are you ordinarily resident in the United Kingdom”, because that is the only operative test. Further, they do not ask, “Have you been ordinarily resident for 12 months?”, less still, with apologies to the noble Baroness, Lady Grey-Thompson, 60 months, as one of the amendments proposes. They do not ask at all, because it is a matter of fact under common law that one is ordinarily resident “for the time being”.