Paul Kohler's Statement on the Terminally Ill Adults (End of Life) Bill.
Kim Leadbetter’s private member’s bill, the Terminally Ill Adults (End of Life) Bill, passed its Second Reading on Friday 29th November by 330 to 275 votes.
As someone who has always supported the broad principle of assisted dying, I expected to vote in favour of the Bill. However, when I stood for election this July, I made clear to anyone who asked, that I had not made a final decision as to how I would vote as your MP on any legislation that might subsequently be proposed. That was because my vote would always be dependent on the precise terms of any Bill and how effectively it addressed the practical and ethical issues that necessarily arise in giving effect to the principle.
Since my election, and particularly after Kim announced her intention, after coming first in the Private Members’ ballot, to place a bill on assisted dying before Parliament, I have had many valuable conversations with, and emails & letters from, constituents on this subject which I have found extremely helpful. I also held a public meeting in Wimbledon, which was fully subscribed with over 200 in attendance, where I gained a deeper understanding of my constituents’ often contrasting views. At that meeting I gave a solemn undertaking I would not make a final decision on how I would vote at Second Reading until Friday’s debate. I consequently sat in my seat throughout the entire 5 hours, not trying to speak myself, but solemnly listening to every speech from colleagues who had already made up their minds, nearly all of whom were deeply moving and persuasive.
The speeches in favour of the Bill were compelling and the personal stories heart rending. However, as the debate proceeded, I increasingly formed the view that I should vote against the Bill, particularly in light of an early speech from the Mother of the House, Diane Abbot, and a contribution toward the end of the debate by my near neighbour in Vauxhall, Florence Eshalomi. I consequently voted against the Bill and have been gathering my thoughts since then to share with you today.
It was accepted, on all sides, that palliative care and hospice provision in this country is in crisis. A post code lottery exists where, even in areas of excellent provision, the service is patchy due to underfunding and legal uncertainties as to what doctors can and cannot do to alleviate suffering. Those in favour of the Bill rightly made the point this need not be a binary choice, and that excellent palliative care and assisted dying could be provided in tandem by the state. However, all the comparative evidence put forward during the debate, and left largely unchallenged, suggested that funding for palliative care was likely to diminish if assisted dying was made legal. It also emerged, again without challenge, that doctors feel increasingly inhibited in prescribing sufficient painkillers to alleviate pain where that might shorten life, in the wake of the Harold Shipman case.
I consequently took the view, in line with the previous comments of the Secretary of State, Wes Streeting, that legalising assisted dying should not be countenanced until palliative care is properly funded. Whilst it is also imperative that doctors are given unequivocal legislative assurances that they are permitted to give sufficient analgesics to alleviate pain, irrespective of whether that hastens death.
As the day proceeded, I became firmly of the view that to offer terminal patients the choice of assisted dying, where insufficient palliative care is available and doctors are often reluctant to prescribe sufficient painkillers to alleviate pain, is no real choice at all. Many terminal patients in such circumstances will understandably choose death, not because they want to die, but because they know the state is unlikely to do enough to alleviate their future pain.
I also became increasingly troubled by the issue of coercion. Patients with a terminal diagnosis are in an inherently vulnerable position where coercion and self-coercion (the desire not to become a burden to family, friends or the state) is a real possibility. As Diane Abbot pointed out, this might be as a result of what is not, rather than what is, said; yet how is a doctor able to decide, as required under the Bill, whether a patient has been coerced? There is also the issue of whether the doctor’s input as a professional is implicitly coercive; particularly as medical practitioners, under the Bill, are expressly not precluded from raising assisted dying as an option themselves.
Diane, Florence, and other Black & Asian MPs in particular argued, that these forms of implicit coercion are more likely to occur in the case of underprivileged & minority groups and with those lacking agency. A point made to profound effect, in the context of disability, by the City of Durham MP, Mary Kelly Foy, when speaking movingly about her nonverbal daughter who had lived for 27 years despite frequently being told she had only 6 months to live.
As a lawyer I had always been concerned regarding the legal safeguards in the Bill and nothing I heard during the debate assuaged my fears, where Kim had to return to the chamber to correct the record after incorrectly giving the impression the judiciary had formally endorsed her Bill. The procedure in the Bill seems to envisage an inquisitorial approach quite alien to the Common Law and not something in which our judges are trained. The Court’s approval is consequently likely to become a tick box exercise where no High Court judge will have the expertise to second guess doctors’ judgements which will largely have to be taken at face value. I am also concerned the arbitrary 6 month time limit will be subject to human rights challenges on the basis that assisted dying is being denied to those who are in intolerable pain but not in the final stages of a terminal disease – a relaxation that at least one MP called for during the debate and which leading barristers, who addressed MPs in meetings prior to the Second Reading, said they would pursue – meaning that a central pillar limiting the Bill’s reach is arguably unstable, making further expansion of the law’s ambit more likely.
I consequently went into the No Lobby on Friday having reluctantly decided Kim’s Bill did not adequately address the practical and ethical issues that any legalisation on assisted dying must confront. If enacted the Bill will irreversibly alter the relationship between doctor & patient and, in my opinion, lacks effective safeguards to exclude coercion in all its forms.
As everyone in the Chamber appeared to agree, that many more terminally ill patients could achieve a good death provided proper palliative care and analgesic support was available, I was not prepared to vote in favour on this occasion. There was, however, very clear disagreement amongst parliamentarians as to whether those measures alone are sufficient to avoid terminally ill patients suffering in every case. I remain unpersuaded that they are, which is why I am still supportive of the principle and do not rule out voting in support of assisted dying in the future; provided it can be offered without coercion, particularly to those lacking agency.
As the bill passed its Second Reading, its provisions will now be subject to scrutiny and possible amendment in a Bills Committee, the results of which will be conveyed to the Commons at the Report stage. That will be followed by the Third Reading, comprising a vote on the Bill as amended in committee. I pledge to look afresh at the Bill, before deciding how to vote at that stage, in light of the many amendments that will doubtless have been made, along with anything the Government is proposing to do regarding palliative care and the legal uncertainties surrounding the use of analgesics. If the Bill passes at Third Reading, it then moves to the Lords, where it is subject to a similar process of scrutiny and possible amendment. The final text of the Bill is required to successfully complete all its stages, in both the Commons and the Lords, before coming into law on receipt of the Royal Assent which is likely to be a protracted process.
In finishing can I thank all of you for your contributions and the support I have received during what has been the most difficult decision of my life. Whilst the correspondence and emails I have received have been evenly split between those in favour and those opposed to the Bill, I am conscious that according to opinion polls I am likely to have voted against the wishes of the majority of my constituents. Whilst I regret that, I can only repeat what I said at the public meeting, that I am a representative, not a delegate, chosen to exercise my judgement on behalf of my constituents and doing my best to make a reasoned judgement on all the evidence that was available to me.