Baroness O’Loan (CB)

I have put my name to Amendments 300, 538 to 540, 541 to 543 and 544B in this group because of the importance of independent advocates and the definition of who they may—or should—be made available to. As has already been alluded to, the fact that the Bill provides for somebody with a disability is compounded by the fact that people with a learning disability in particular can want to please those whom they perceive to be in authority over or looking after them. They can think that people will act in their best interests, and they will very often comply with what is proposed to them. That is one of the things that make this issue profoundly important. What is so lacking in Clause 22 is the specificity that would enable one to articulate what an independent advocate is. In a minute, I will come to the amendments proposing a new Clause 22. Amendment 300, tabled by the noble Baroness, Lady Grey-Thompson, proposes a new clause requiring the appointment of special independent advocates for disabled people as defined by the Equality Act. That is a wider definition of those for whom independent advocates should be provided. However, it recognises that, in those moments of considering a choice between life and death, a person needs to be cared for, so that the stresses that they will inevitably experience do not prevent them making an informed decision under the Bill. It is very important for such advocates to be trained specifically in disability rights and the identification of coercion. Amendment 300 is specific in identifying the range of support and advice that must be made available. Amendment 539 similarly requires specific communication training, which is essential for someone to act for a person with a profound disability, as we heard in an earlier group today. Amendment 541 in the name of the noble Lord, Lord Sandhurst, specifies conflicts of interest that would preclude someone from acting as an independent advocate, and I agree that it is important that these be spelled out in the Bill. Amendment 542 states what the independent advocate cannot do. In particular, they should not be there to support a person to have capacity to end their own life; nor should they advocate for someone, as under the MCA arrangements. Rather, they should ensure that the person seeking to end their own life understands what is being offered to them and understands the consequences of complying with the suggestions, thereby enabling them to respond to the options made available to them. Amendment 548 seeks to amend Clause 22(4)(b) by making more specific the difficulties that may be faced by a qualifying person. In responding to the DPRRC report, the noble and learned Lord, Lord Falconer, has tabled the amendments to which he has already spoken. However, I have concerns. The changes proposed by the noble and learned Lord no longer provide an obligation on persons performing functions under the Act to ensure the presence of an independent advocate for a qualifying person. Subsection (9) of the proposed new clause in Amendment 548A says that someone “‘has’ an independent advocate if an independent advocate is instructed to represent and support them”— it is not that they need to be present or involved; they merely have to be instructed. At this point, it is important to remember why the independent advocate is there in the first place: to provide support to someone who has difficulty understanding and who may very quickly forget, after the conversation, anything that has been said to them. That is why the independent advocate must be present. Can the noble and learned Lord tell us why he removed that requirement? Does he think that an independent advocate could support someone if they are not present for the discussions and consultations? More chillingly, subsection (3)(c) of the proposed new clause in Amendment 548A says that a “preliminary discussion” can proceed even where “the person seeking assistance informs the relevant person that they are content for the preliminary discussion to be conducted without them having an independent advocate”. It is not difficult to imagine a situation in which a registered medical practitioner asks, “Are you happy to go ahead without an independent advocate?”, and the qualifying person, possibly wanting not to annoy or even to please, says yes—and so the preliminary discussion goes ahead. Subsection (3)(b) of the proposed new clause provides that the disabled person can say that they do not want an advocate, but how can we be sure that the person understands what an independent advocate is—we are having quite a discussion ourselves this afternoon about that—and what they might bring to them? Is it possible that a tendency towards needing privacy, and perhaps a tendency to not engage with strangers, might lead someone in this situation to decline an independent advocate without really knowing what they are doing? It would be helpful if the noble and learned Lord could explain how he intends to prevent this happening or to safeguard the person. It would, of course, save quite a lot of money if the IA were declined. The noble Baroness, Lady Grey-Thompson, has referred to the £2,333 per case. I have a notion that it might be more, because some of these assisted dying cases are going to take quite a long time as they go through all the processes, particularly the process in the house, the hospital or wherever it is that the lethal drugs are to be administered. Assisted dying could take some time. If a disabled person says they do not want an independent advocate, things could move more quickly. There is significant risk here and the noble and learned Lord needs to help us understand the safeguards. Subsection (8) of the proposed new clause provides a really important definition of an independent advocate, by saying that it is someone who represents and supports a qualifying person “in connection with … anything done under this Act, by or in relation to the qualifying person”. My questions for the noble and learned Lord are: what support is envisaged here and what is meant by that phrase? What support is the independent advocate going to provide when the doctor is providing the lethal drug under Clause 25(8)(b)? Is it assisting the person to ingest or otherwise self-administer the lethal drug? What is “support” in this context and that place? Is it possible that the person seeking to die might expect their independent advocate to hold the cup for them or press the syringe with them? Is the clause clear that support cannot include any active role? That would be vital. Surely this could open the door to an interpretation by those who perhaps have malign intent—I am thinking about coercion here—that the independent advocate can do more than listen, explain and communicate. I wonder what is meant by Clause 25(8)(b) in any event. How far can the doctor go in helping the “person to ingest or otherwise self-administer” a lethal drug? We will get to that later, but what does it actually mean? There is a massive difference between helping with communication and support and being present when someone takes lethal drugs to end their own life, or is assisted to do so by a doctor, and supporting that process. Amendment 549A does not add the kind of clarity required, but it does allow the independent advocate to access the person’s medical records or require information from those records. That seems to suggest that this independent advocate would require some kind of medical expertise, which has not been previously suggested. I do not know what the actual purpose of subsection (3)(d) of the proposed new clause in Amendment 549A is. It would be helpful if the noble and learned Lord could explain it to me. There is a massive danger inherent in the terribly loose drafting of both Clause 22 and the noble and learned Lord’s proposed new clause in Amendment 548A, and some of the additional material contained in Amendment 549A. Can the noble and learned Lord explain why he has drafted an amended clause which seems even more deficient than the original Clause 22? Needless to say, I also support Amendment 549C, in the name of the noble Baroness, Lady Coffey, which would apply if Amendment 549A were passed.