Lord Falconer of Thoroton (Lab)

My Lords, I will respond to the sensible invitation of the noble Baroness, Lady Coffey, to give a brief indication as to what my amendments here do. The noble Baroness, Lady Finlay of Llandaff, earlier referred to the Delegated Powers Committee, which made a number of criticisms of the previous Clause 22, in particular that it did not specify the circumstances in which it was mandatory to have an independent advocate and that it left too much to regulations. We introduced two new clauses to deal with that. The first proposed new clause is found in Amendment 548A. It first requires that anybody carrying out a relevant activity under the Act has to consider whether the person seeking an assisted death requires an independent advocate. The person carrying out the relevant activity is broadly either the first doctor, the second doctor, the provider of assistance to the patient or a member of the panel. If the relevant person decides that the person does need an independent advocate, the person performing the activity under the Act must give the person seeking the assistance “information about representation and support provided by independent advocates, and … an explanation of the effect of subsection (3)”, which is that if you need support you are entitled to have an independent advocate, but if you do not want the support you can say no to it. Where the person performing the relevant activity is a doctor, as opposed to the panel, they have to tell the commissioner for assisted dying that this person has been given the information about an independent advocate. The people who qualify for an independent advocate are not everybody applying for an assisted death, only either “a person with a mental disorder” or “a person who (in the absence of support) would experience substantial difficulty in doing one or more of the following … understanding relevant information … retaining that information … using or weighing that information as part of the process of making relevant decisions, or … communicating their views, wishes or feelings (whether by talking, using sign language or any other means)”, as we discussed previously. If an independent advocate is engaged, their job is to “represent and support” somebody seeking assistance in “understanding the options available … as regards end of life care, or … anything done under this Act, by or in relation to” the patient. The job is to help to understand, not to be an advocate for any particular cause. In Amendment 549A there is an additional proposed new clause, which is collateral to the new clause, saying: “The Secretary of State must by regulations make provision about independent advocates”. Those regulations basically have to specify the training required for independent advocates, identify who gives them instructions in individual cases and make arrangements for who appoints them. So one now has —this is the point that the Delegated Powers Committee was making—clear circumstances for identifying when an independent advocate should be appointed and on whom the duty arises to make sure it happens.