Contribution
My Lords, this is a very interesting group of amendments, because it seems to me that two separate things are going on. We have the neutral adviser of the noble Lord, Lord Frost, who, unfortunately, arrived too late to be able to speak to his own amendments—though they have been spoken to—and the other is the independent advocates. I share some of the concerns about the amendments tabled by my noble friend Lady Grey-Thompson, but I also have some about the amendments that the noble and learned Lord, the Bill’s sponsor, has already spoken to, whereas those proposed by the noble Lord, Lord Goodman, certainly seem to fulfil an important role and have a narrower scope.
If I might talk briefly about the neutral advisers, that role seems compatible with the scheme that I outlined last week at the beginning of proceedings. Those amendments have been very well introduced, particularly by the noble Lord, Lord Gove, who spoke about that role and the importance of neutral advice.
I turn to the independent advocates. The intention is obviously that disabled people and those with learning difficulties are supported through a very challenging process and time in their life. However, there is a risk that these independent advocates become enablers who function a little like the sweepers in curling: sweeping away blocks and smoothing people’s passage towards an assisted death. The advocates must be advocates for the patients, not advocates for assisted suicide. Given the way that the amendments are written by the noble and learned Lord, Lord Falconer, I fear that the advocates’ behaviour could be influential, as opposed to independent, because the role does not appear to be independent of the wider voluntary assisted dying service. If I have understood correctly, they would be managerially and professionally answerable to the service, but I may have misunderstood that. The way that they are appointed, who they are answerable to and who employs them is important. It would therefore be very helpful if that could be clarified.
There certainly seems to be a gap that the proposals are designed to fill; they are in response in the reply that the noble and learned Lord gave to the Delegated Powers and Regulatory Reform Committee in paragraphs 13 to 18 of the report. He certainly tried to address the issues raised and we have now seen these amendments. Perhaps the noble and learned Lord, Lord Falconer, can clarify whether the role that he drew on was based on the role of independent mental capacity advocates, but with their role extended because having capacity is obviously an essential qualifying criterion under this Bill. The independent mental capacity advocates also have a safeguarding role, which is very important. Conversely, the independent mental health advocates, who were created through the Mental Health Act, act for individuals detained under mental health legislation, regardless of their capacity.
It would be helpful to understand how his amendments were formulated because of some of the criteria in the wording of his amendment that relate to how mental capacity is assessed. Given the difficulties of capacity assessment and the current Clause 3, which I have previously argued is unsatisfactory, it seems important that these people fulfil the role adequately and should have a specified minimum training in end-of-life law, disability rights, expertise in capacity assessment itself, coercion detection, palliative care and ethics.
In the other place, the Minister raised issues that need to be resolved and I ask the noble and learned Lord, Lord Falconer, how his amendments will address these. Basically, who would be obliged to ensure that the independent advocate is present and the precise nature of obligations around their appointment? Is the advocate entitled to be, or do they have to be, present in the room during all discussions? How will a person be determined to be a “qualifying person” as the definition seems quite broad and to encompass a wide range of people with varying support and advocacy needs? Who will pay the advocates and how will they be funded? Most importantly, what assurance is there that the independent advocate could not take on the character of someone hired specifically to support vulnerable people to seek assisted suicide rather than simply support them in their decision-making as they explore the option?
We are here to make this legislation safer. While the Bill is before Parliament, it would seem irresponsible to leave such lacunae open or completely unplugged. There is the same concern over regulations being left to an unknown Secretary of State in the future.