Health and Social Care Committee

Can I welcome the Cabinet Secretary to the meeting this morning? I thank you for your time. Would you like to formally introduce yourself and your colleague?

Jeremy Miles, Cabinet Secretary for Health and Social Care.

Morning all. I'm Ben Brown. I'm deputy director for quality, safety and clinical conditions in the health group at the Welsh Government.

Great. Thank you so much. Thanks for making yourself available for such an important and, we know, emotive topic. We're pleased to be able to have an hour and a half, I think, with you this morning. I doubt that will be enough for us to cover everything that Members will want to discuss, but we will try. All Members are here in person today, so that is great. We'll kick off with some questions, if we may. I'll start, and it's really seeking some real clarity around powers to implement assisted dying in Wales. We'd like to really understand what the Government's position is on the Bill, and whether the Bill, as currently drafted, would give Welsh Ministers power over when or whether the law is enacted in Wales.

Thank you, Chair. In relation to the Government's position on the Bill, the Government's position has been, and continues to be, one of neutrality. In relation to powers to enact the legislation, there's a distinction to be drawn, Chair, between enacting the legislation and the implementation of the legislation. In terms of the enactment of it, the commencement of it, that is a power in the hands of the Secretary of State, because the Bill, as you will know, operates effectively by way of amendment to the Suicide Act 1961, which is entirely reserved. So, the commencement is in the hands of the Secretary of State. But in relation to the provision of voluntary assisted dying services in Wales or not, clause 42 of the Bill, as it's currently drafted, provides that those services could only be introduced in devolved areas following regulations laid by the Welsh Ministers in the Senedd and subject to an affirmative Senedd vote. So, for anything that is in devolved competence, there will need to be regulations passed by the Senedd before the services could be provided. So, I think that distinction between enacting legislation and implementing it in Wales is a key distinction.

Thank you for that. We also would like to understand if you are clear about—and I think you are very clear—who is responsible for enacting, and you just touched on it, and regulating the assisted dying services in Wales—Welsh Ministers or the Secretary of State. I think there still needs to be some further clarity around the roles there. Can Welsh Ministers, for instance, refuse to implement aspects of the Bill, even if Westminster do press ahead?

The powers to make the regulations I referred to just now are discretionary powers. In order for those regulations to be laid, which would be necessary in order for, for example, the NHS to provide this service in Wales, then a Welsh Government—which, given where we are in the timing of the legislation and the Senedd term, would effectively be a Government in the new Senedd—would need to make a policy decision to be open to introducing the service, then to lay the regulations, and for the Senedd to approve those. That's in relation to services provided in the public sector, if you like, by the NHS, because that's within devolved competence.

Obviously, the Bill operates by way of amendment to the Suicide Act, so there would be options in England and Wales for services to be provided other than in the public sector, as it is in other parts of the world, obviously. In those areas, the Welsh Government already has regulatory powers in relation to some independent healthcare provision. The precise mix of regulatory powers for non-public provision in Wales would depend upon who is providing it and what they are providing. But we are confident that the Bill provides appropriate regulatory powers, whether it's provided in the public sector or in the independent sector.

Would the Government have the power to refuse—? Because you've got those regulatory controls already in certain areas, you could refuse to implement elements of the Bill.

In devolved competence, certainly, yes. And even if the Government wanted to, and the Senedd didn't want to approve it, the Senedd would have that ability as well.

Yes, okay. Mabon.

Just on that point, you mentioned in terms of introducing this that the Government would need to make regulations. Do you think that the process of introducing this through regulations is sufficient, or is it the Senedd that should have that power, rather than Government regulations?

Yes, that is sufficient. The Government would introduce the regulations and the Senedd would have to vote in favour of them to introduce them. That is suitable, I think—that there is a decision on behalf of the Government to introduce these and then a decision on behalf of the Senedd to approve or not. In my view, that provides assurance to the Senedd. If there is no agreement in the Senedd to introduce these regulations, to introduce these services in the public sector, there's an opportunity for the Senedd to stop that.

Thank you. James.

Just on this point of introducing regulations from the Government, obviously, it's an awful lot of work to bring those regulations forward on behalf of the Government. I'm just interested in terms of Government capacity. Do you think there's capacity within the Welsh NHS executive currently and within the Welsh Government to bring those regulations forward to the Senedd?

You are right to say that it's a very significant change. The implementation provisions in the Bill, as currently before Parliament, provide for services to be implemented no later than, I think, October 2029. So, there's a substantial period of time, but there are a number of things that, both in Wales and England, would need to be settled in advance of that, obviously—so, who's providing the service, where, what the workforce implications of that are, what the operational interdependencies of that kind of service and healthcare provision more broadly are. So, there's a very significant level of work that would need to follow from the decision by a Government that they are open to introducing this service. That's certainly true.

I don't have particular concerns about the capacity of the Government to be able to introduce those regulations. I think there is a huge system change that goes with it, which is a larger question, and clearly that would be very significant. I think that's probably where more of the concern would lie. But I think, at this point, frankly, before the point in time when an operating model has been established, and that hasn't yet been established, either in Wales or England for obvious reasons, the exact dimensions of that wouldn't be clear at this point, but you can imagine it's a complex piece of work.

Can I have some further clarity, Cabinet Secretary, on regulations? If they are not made by the Welsh Government and consequently approved by the Senedd, the NHS in Wales will not be able to provide assisted dying services. Would that be the case?

That is correct.

Thanks for that clarity. Obviously, we had a clear Senedd vote against assisted dying in October last year. In light of that, how does the Welsh Government justify accepting the LCM process for this Bill? Has the Welsh Government done further consultation with the Welsh public on this? What's helped you get to that stage?

It's not really a matter in the hands of the Government, Chair. There are requirements in the Standing Orders of the Senedd. Whether the Government supports legislation or whether the Senedd has indicated a policy preference in that space or not, the legislation, in the form that it is in, contains provisions that are devolved to Wales. Therefore, the Standing Orders, in my view absolutely correctly, require that an LCM be brought forward. So, we've laid an LCM, we've laid a supplementary LCM. There's been a huge amount of work, actually, between my officials and the sponsor of the Bill and her team in Parliament to strengthen the interests of Wales, if I could put it in that sense, in the Bill, and specifically in relation to powers of Welsh Ministers and powers of the Senedd. I think it's moved forward quite significantly in that space, which is why we've laid a supplementary LCM. I would also make the argument, for what it is worth, that the Senedd debated a matter of principle previously, and this obviously is a very specific LCM on particular legislation.

Yes, okay. Are you looking to come in, James?

Just very briefly, Cabinet Secretary, this is a huge change to the way we deliver end-of-life care within the United Kingdom, and a huge change to the health service as well. This is a backbench piece of legislation. There's obviously a will within the UK Parliament to deliver this. Is it a concern of the Welsh Government that it is still backbench legislation and hasn't been picked up by the Government to formulate it properly, so they can put a Government guise on it with the full resources of the Government to deliver this piece of legislation, if there is a will within the UK Parliament to do so?

It's a conceptual question on one level, isn't it? But I think there are moral choices and moral considerations in this legislation. This is a very personal view. The Government is neutral in this, so you are asking me my view on it, I think, in effect. It isn't surprising to me that a legislative initiative of this sort is coming from a private Member rather than from Government, because it's a moral issue, and that, often, is how, in the past, these things have been legislated. In that sense, I think it's not surprising. I'll turn to Ben in a moment on this. I think it is fair to say that there's been a need to find new ways of working between the Government here and the sponsor of the Bill, because in this case the sponsor of the Bill is not a UK Government department.

We have, obviously, well-established ways of working between the Welsh Government and Government departments. They generally work well, not always, but there is at least a mechanism and it is very established. I think it's fair to say that, at the start of this process, there was a bit of a feeling of the way, because that isn't the model for this legislation being brought forward in Parliament. My personal reflection as a Minister is that the level of engagement has been collaborative and co-operative, which is a very good thing. But I might just ask Ben about how that's worked at an official level.

It's a particularly unique piece of legislation, in that it is a private Member's Bill and both Governments have remained neutral, which is particularly rare. So, as the Cabinet Secretary said, we spent a lot of the initial parts—. Well, we still are very much dealing with just technical pieces of legislative competence and devolved matters. So, we've very much stayed in the technical space. I think the position from the Department of Health and Social Care at the moment is that they remain neutral. Policy work will be for after the point that this receives Royal Assent, or is finally approved in the House of Commons. It is possibly one of the reasons why there is a lot of time for implementation. It has passed already to Lord Faulkner as opposed to—. Well, they are leading it together—with Kim Leadbeater. And then at the point of Royal Assent, it will pass to a policy team for further development, but I think they have written some of that time into the process.

Chair, just two reflections on that, just to be hopefully helpful to the committee. It seems to me that it's particularly complex legislation to be brought forward by private Member legislation. It's complex in any event, but it's doubly complex when you look at the devolution settlement and the interrelationship between what is essentially reserved legislation and the implementation of that, which in a very real sense, obviously, is going to be largely devolved. So, that's quite complex, I think. So, I think that's worth bearing in mind as well.

Yes, but that neutrality of Governments to enable it to come forward creates a messy arrangement, really, which hasn't been perhaps thought out as much as it would be if it was something that was conceived by the Government. But I take your point about it having come from a moral position, so it's important that the amendments really do shape it properly.

Yes, and we were keen to make sure, because of the complexity, that we strengthened, in the way that we have—joined together, if you like—the Bill to give us here in Wales as much ability to tailor it to our circumstances here, which I think is where we have ended up.

I think it's also worth saying, to be fair to the UK Government in this space, that even though they've remained neutral, which again is not surprising, Governments, even in the context of private Members' legislation—and that applies in Parliament as it does in the Senedd—have a separate obligation, whether or not they support the legislation specifically, to make sure that legislation passing through the legislature—Parliament in this case—is workable and effective, even if the Government doesn't support it. That is an obligation that, if it were legislation passing through the Senedd, we would have as a Government as well. And there are many, many examples of private Members' legislation that have been brought forward, which the Government in Wales has not taken a decision to actively support, or not yet taken a decision, but has worked with backbench Members to refine the legislation, so that if it were to be passed, it would be capable of being enforced and administered.

So, you will see the impact assessment that the UK Government has introduced, even though it's not sponsoring or proactively supporting the Bill in that sense. Clearly, it's done the work of, I guess at this stage, a preliminary impact assessment, an equalities impact assessment, a human rights assessment, because that all is material that Parliament needs, as it legislates in this space, and it would be the same for us if we were doing it here.

Yes, thank you for that. John, can I hand over to you?

Yes, diolch yn fawr, Gadeirydd. I'm going to ask some questions, Cabinet Secretary, on the delivery of voluntary assisted dying services. Before I do that, I just wonder, in terms of the—. We've had, as you say, the vote in the Senedd on the principle that's involved; we now have specific legislation that's currently before Parliament. It may change again, we don't know, which obviously changes the equation, because Members here would be considering the specifics of the legislation and what they would do if implemented, and what the issues around that are. And, of course, if assisted dying does become available in England, then it's a different equation again for Wales, isn't it, in considering the specifics of the Bill, plus the fact that they will apply in England.

Will the preparatory work that you are doing include looking at that scenario, that if this did become law in England, and Wales, the Senedd, wasn't minded to follow suit as far as Wales is concerned, what the implications would be for the NHS in Wales?

Yes, I mean, I suppose it's at the heart of the devolution question, isn't it? Fundamentally, my view is that Ministers in the Senedd ought to be making the decisions about how this service is delivered in Wales, and indeed whether it's delivered in Wales. That's my clear view on it. But in the scenario that you describe, where—and it may be a matter of timing, as opposed to a matter of principle, obviously—there is a service that is operating in England, but it is not or is not yet operating in Wales, the sorts of things that we'd be thinking about in that context, I guess, are: people crossing the border for services, distances to services, equality of experience. I think it depends on why a decision either hasn't been taken, or hasn't yet been taken, to implement the service. There are quite familiar cross-border questions that I think we'd be thinking of—or the Government in the new Senedd would need to be thinking of.

Yes, okay. I know it's all very hypothetical at this stage, isn't it?

Yes, it's challenging, because there isn't a model established anywhere yet, so it's a bit of a challenge.

Yes.

Following on from that, what's the constitutional situation if the Senedd opposes this LCM? Where would that leave us then?

The constitutional position is one that's established. The Sewel convention operates in relation to this legislation as for any legislation. So, I'd expect the same principles to be relevant to this LCM. I would say, on a personal level, that if the Bill progressed in Westminster, despite the fact that this Senedd had not voted in favour of the LCM, my personal view is the fact that the Senedd has a voice, I would argue, that is more influential on the implementation of this legislation in Wales, which comes before any decision on behalf of the Government to implement the service, creates further assurance for the Senedd that the Senedd has suitable powers in terms of the practical implementation of this Act in Wales. So, my personal view is that that provides us with more comfort as an organisation, but people can reach their own view on that.

Okay.

James.

Yes. John talked about the cross-border implications. My constituency, and others around the room represented here as well, sits right on the border. Say the Senedd decided—this is hypothetical—not to implement this legislation via regulation-making powers, if this Bill was to become law, but then I have constituents who start registering with English GPs to access the service, but they're Welsh residents, how does that start working in a legal context? Because they're basically a Welsh resident accessing assisted dying in England. I'm just not clear in my head how that works in a legal context. The Senedd says 'no', but then I'm going into England to do it anyway, if I register in England.

I don't think that's known yet, is the truth of it. Because the model hasn't been established on either side of the border, and the Bill isn't yet settled.

Is there a legal context there? It amends the Suicide Act 1961. If Wales says 'no', but they're a Welsh resident, could they be subject to legal proceedings, because in Wales we have said 'no' to something, even if in England they said 'yes'? I'm just trying to get that clear that in my head. I can see a context of that happening.

So, that is clearer, which is to say we're going back to the start of the discussion today about the distinction between enactment and implementation. So, the enactment of the legislation, the bringing forward of a commencement Order that makes this Bill, when it's passed, a law—which is properly in the hands of the Secretary of State, because it's reserved—would effectively bring into force in Wales the changes to the Suicide Act in the same way as they are in England. So, that's the reserved part of the legislation, which is most of it, obviously. So, the legal changes to the Suicide Act that this Bill, if it becomes law, would be making are not things that the Welsh Government has a choice over implementing, because they aren't devolved. So, the broader legal context that you're describing would be brought into effect by the Secretary of State's commencement Order, rather than the decision of a Welsh Minister. Is that helpful? It's quite complex, obviously.

It is complex. It's going to be very confusing for people who live in my constituency, for example, who could register—. And some are registered with English GPs, so they could access that service, if it came into law, but then somebody who lived in Pembrokeshire, for example, wouldn't be able to. So, there's almost a two-tiered system, then, of where people could access this, or couldn't, depending on the vote of the Senedd. I don't think I'm getting confused myself, but I think it's just an area that needs to be ironed out and highlighted, really.

I think that's the point: these are areas to be tested and challenged as we move forward.

As I say, the model isn't established in any part of the UK yet, so the kinds of things that a future Welsh Government would, I imagine, want to be able to work through in consultation are exactly these kinds of issues.

Yes, exactly. John.

Going back to delivering the voluntary services, Cabinet Secretary, stakeholders agree that it's appropriate for Welsh Ministers to have powers to implement these services in Wales, but were concerned about a potential inconsistency in approach between Wales and England in terms of how the services might operate, but also the time of implementation, as you touched upon earlier. Is work being done to understand whether there are likely to be differences between Wales and England in terms of how the services are delivered, and whether there will be a different time? Are you preparing for those sorts of scenarios?

Well, this is a familiar challenge, isn't it? Stakeholders saying, 'Well, if there are different regulations in Wales and England, won't that be confusing?' I've always thought that was more of a concern about the Government of Wales Act 2006 than any particular policy consideration. It's inherent in devolution that choices will be made by a devolved institution that reflect the country that it serves. I'm myself very comfortable with that. I do recognise though that there are questions that arise that can be confusing to people. I was comforted that that seemed to be a minority view in terms of the evidence the committee has heard, which I think is encouraging. But, again, the sorts of questions that you're asking there are the things that would need to be ascertained in consultation and policy development when the legislation is passed.

Just to say, there are probably two stages of work that need to be done in this space. The Bill is unlikely to be in a settled form until the very end of this year—I think, maybe, even the start of next year. So, the exact legal underpinning of it and the dimensions of it won't be clear until then. The practicality of it means that there'll be a four-year implementation period. It seems to me the most likely scenario is that a Government of the new Senedd would need to make a decision about whether, in principle, it's looking to introduce these services, and then that would kick off a wide range of consultation, operational planning, workforce planning, policy development. I think that some of that will need to be done in advance, so that that Government has some options. So, probably from the autumn of this year, there'll be some preliminary work in that space. But I think the kind of questions that we're exploring now—completely proper questions, ones of significant concern—would need to be things that Government works through, really, when the models are clearer.

When would we get to training and workforce implications of having assisted dying services here in Wales? Because, obviously, there would have to be a lead-up time, wouldn't there, to make sure all of that's in place?

There's some preliminary assessment of the scale of it, if I can put it like that. So, the committee will have seen the impact assessment that the UK Government has written, and has some broad approaches to workforce planning. We think—and this is a quite a rough-and-ready calculation at this point; obviously, this will become refined as and when, if the legislation goes forward—that just under 50,000 NHS and social care professionals would be eligible for what's being described as tier 1 training in Wales, which is the general awareness training for GPs, for nurses, for pharmacists. Then we've got tier 2 training, which is the more in-depth training for specialists, and it builds on that.

So, that's the sort of scale in terms of the numbers of people who we would need to be training to get to that base level of provision. We've got some estimated training costs for Wales. So, in the first year, which is a half year in practice, because October is the first year of that implementation, it's anything between £80,000 and £750,000, which is obviously a very broad range, and then that goes up, or, actually, it comes down to £641,000 a year at the top end in year 10. So, you'd expect that to tail off as you've got more and more people trained in the system. But those, at this point, are just very broad brush.

Can I bring Mabon in, please?

To go back to that point, if I may, on the situation and the difference between Wales and England, do you accept what Professor Emyr Lewis suggested in a recent podcast, or in his evidence, which was that there's already a basis for this, whatever the differences between England and Wales? COVID, for example, showed that we can have different policies in Wales to the policies to England. So, there's not much concern in that regard in terms of implementing two different policies.

It's something that's very common. My personal view is that it's not controversial at all. I think there are ways of working that we have that are established. It is practical. I accept, as is quite often said, if you live on the border, perhaps there's more uncertainty, but, as you say, we have been through a period when the law was clear and different on either side of the border and we have found ways of implementing that that are effective.

Yes. With something as important to people as this, you would hope there would be a consensus approach to make sure that we didn't fall into some of the problems you've highlighted, James, on the boundaries and things like that. And I'm sure all Governments would be mindful of trying to find the smoothest way to implement this, if it was to happen, I hope anyway. John, did you want to—?

Yes. Just on opt-outs, and moving on, Cabinet Secretary, clinicians will have the ability to opt out of taking part in the provision of these voluntary assisted dying services if the Bill proceeds as currently framed. So, will work be done in Wales to understand the likely level of opt-out? And do you believe the Bill has sufficient protection for all relevant professionals who might wish to opt out?

So, do I think the Bill has relevant protections? I do. I think the Bill is very broadly drafted and it extends beyond healthcare professionals, to any person at all. So, the Bill provides, effectively, that anybody who chooses—any person—who chooses not to participate is protected from either criminal or civil liability provided they act in accordance with the Bill, obviously, and that nobody—and that includes medical practitioners, but much more broadly than that—is to be regarded as under any duty to participate in the provision of the service.

So, effectively, the legislation is saying that, for any individual, you know, engaging in a service, being part of its provision, it is entirely voluntary. And there is an explicit provision, which I welcome, that any employee who exercises the right not to be involved should not be subject to discrimination or disadvantage in the employment space, in the usual way. So, I'm confident that the Bill is well drafted in relation to that.

I think the question of opt-outs is an important question in terms of the practical impact of that. The impact assessment has provisions that tell us that, having engaged with the royal colleges and professional bodies, the UK Government is saying that the level of opt-out could range from 35 per cent to 76 per cent for specific groups of staff. I think our view is that if you look at staff engaged in palliative care, who I think you would expect to be a particularly relevant workforce in the context of this legislation, the opt-outs could even be as high as 90 per cent. Again, I'm unsurprised by that, but you can imagine that could create practical challenges. So, you know, a Government seeking to introduce a service in Wales would need to have a level of confidence that there was a sufficient workforce that had both the skills required in the skills mix and who were not opting out, both to deliver that service today and also to deliver that service in five years or 10 years. That's obviously going to be challenging. Clearly, it's capable of being worked out, but it's clearly challenging as well. Colleagues will be familiar with what we describe as ‘fragile services’ in healthcare, where there aren't sufficient staff to deliver in a resilient way, and one would need to test this to make sure this wasn't going to become a fragile service if a Government was looking to introduce it. But, clearly, it is possible to plan for that. I'm not suggesting that. But it's quite a significant question, I think.

Can I bring Joyce in, and then I'll come to Lesley?

In terms of staff and if they choose to opt out, and their protection against dismissal or any other form of potential retribution, will it be wrapped up in this legislation, or will it be within employment legislation? And I ask this question for a reason, because if you had a change of Government who changed employment legislation, it could be at risk, that form of protection for those individuals. I think this is a crucial question that needs answering.

Yes. The technical mechanism for delivering that outcome is that this Bill, or Schedules to the Bill at the back, will have tables saying what impact this Bill has on other legislation, which we'll be familiar with. So, this legislation has the effect of amending employment rights legislation. That's the technical mechanism. I think that's actually a very standard mechanism, but that's the answer to your question.

Well, it sort of does. So, it would sit within the employment legislation, which could then be amended separately to this. So, there is a risk there.

If that legislation was amended to change the parcel of rights that the workforce has, there would certainly be a risk. Just to say, that isn't a set of choices that the Welsh Government would have, or the Senedd. Those are, as you would expect, reserved, and therefore that would be for Parliament or the UK Government, ultimately.

Okay.

Lesley.

Thank you. Just listening to this area of questioning and the challenges of a porous border, for me, it's called devolution, and therefore you're absolutely right, in the stance you're taking. But again, around staffing and the opting out, and it could be too early, but are there lessons to be learned from the Human Transplantation (Wales) Act 2013? I remember, when I was sitting in your seat, when we brought that legislation through, there were huge challenges because it was different in England. I was just wondering if there'd been any discussions. As I say, it might be a bit too early, but I certainly think there are lessons to learn there.

I might turn to Ben on that.

I think probably it's something we'd have to look into more. The 'opt in, opt out' part of that Act was very different—what people were opting in and out of compared to this. But there may be something to do with process that's helpful. It's certainly something we can take away.

And I think also about the staffing, the people that worked in that area. And I absolutely agree with you around palliative care staff. But I think it's so complex, it needs—.

And it does go to the questions that you've rightly been asking us about equity of access, geographic provision. If you're talking about a small staffing base, which the current estimate suggests—but, again, that requires a lot more work—then the smaller the staff base, the more challenging those other principles become, clearly.

So, on that, I can see that practical dilemma we could have if there's a huge amount of opt-out, and then we can't, if it was to go ahead, apply the service in Wales. Will there be opportunity to work across border with professionals, if there's surplus capacity in England, to enable Wales, so that there's parity of service? These are operational issues that are hypothetical at the moment.

Clearly, that works, to some extent, at the moment, Chair. I think we're having a level of in-principle discussion at the moment, aren't we, because it's impossible to know the detail, given where the legislation is. But I would think both Governments will be highly incentivised to have open discussions about some of these questions. What I would say—and we've been focusing on some of the challenges in the staffing space—just to put the counter view, if you like, is that the number of people that the service has estimated to be making applications under the legislation are also quite small for Wales. So, from the impact assessment, it suggests the number of applicants in year 1 at between 17 and 66, and the number of assisted deaths in year 1 at between 10 and 40, but, obviously, that increases over time. So, the level of demand on the service, as currently envisaged, is also small. So, that’s just to give a balanced view, if I can.

Yes, that's important context. Thank you for that. Mabon.

Thank you. And as we’re talking about opt-out and clinical staff, you may be aware of what’s called the 'Montgomery ruling'. People have come to me with their concerns with regard to this, because, back in 2015, you had the Montgomery v. Lanarkshire Health Board case, which led to a shift, where, previously, clinical staff were able to decide what was best for the patient, and, perhaps, they held back some of that information. However, following that ruling in 2015, there was an expectation for clinical staff to provide all the options to the patient, so that the patient was the one who was empowered to make a decision. That suggests that the concern, therefore, is that there will be an expectation for clinical staff to provide assisted dying as one of the options for patients they see, and that some of those clinical staff will decide that they don’t want to provide that. Do you feel that the Montgomery ruling will need to be respected in this legislation, or that that won’t need to be looked at?

I don't know the specific answer in light of that court judgment.

I don't know, Ben, if you have any reflections on that.

In terms of principle, I think what this Act is trying to do is provide the broadest possible level of right for the person who is implementing the system in general to not have to, so to speak, give advice or have training, or involve themselves in any way with the service. So, that’s what I think is the intention of the legislation. I’m happy to keep the committee updated in terms of further discussions on that specifically.

That would be useful. Thank you.

Thank you. John, do you want to continue?

Yes. Cabinet Secretary, on the role of non-NHS providers—the independent, voluntary charitable centres—is there anything you would say about the role that they would have, and the oversights that would be necessary, as far as that’s concerned?

Chair, just to say, Ben has actually found an answer to that last question, so I don't know if you would like to hear that before I answer John.

Yes, that would be helpful. Thank you.

So, not in specific reference to the Montgomery ruling, but I think the concerns from clinicians about the requirement to provide information, or be involved in referrals, is what the opt-out provisions are specifically there to defend against. So, the sponsor, from our understanding, is particularly interested in protecting people’s option to opt out. I don’t know if they’ve considered Montgomery specifically, but that is what they’ve been trying to address.

Thank you.

So, to your question, because the Bill operates by changing the Suicide Act, it does allow for there to be non-public provision in Wales, without Welsh Government regulation. So, that’s the premise of the legislation. That’s just by virtue of the fact that it’s largely a reserved area.

So, on your question about regulation, as you will know, the Welsh Government and the Senedd already has powers to regulate some independent healthcare provision in Wales. So, there’ll be a suite of powers that could be available—it depends on what the service is and who’s providing it, which, obviously, at this point, we don’t know. But there’s a body of regulatory powers there, which lie in our hands. But there are also powers in this legislation that are in the hands of the Secretary of State, because that’s a reserved space, which provide what we think are an appropriate range of powers to regulate provision. So, whether it’s regulation from Wales or whether it’s regulation from Parliament will depend on who the provider is and the mix of things they are providing. But we are confident that the range of scenarios will be covered by appropriate regulatory powers.

It could get a bit complicated there, couldn't it, I think.

Well, it could do, certainly, but I think that's because we're talking about hypotheticals at this point. As we get to a place where the model is clearer, I actually think that we're likely to find that the regulatory landscape is clearer as well.

Okay, thank you. Joyce.

Yes, thank you. That being the case, what strikes me as being of paramount importance is the transparency of those providers, should they not be in the public sector, just so that a whole raft of questions that will surround that don't arise, or that people feel adequately informed about who that provider is or might be, and how they feel protected from any possible nuance within a profit element or any other element by those providers. So, in this Bill, is there an emphasis that, should services be provided in the private sector, there is absolute transparency in terms of who those providers are and how they operate?

Well, there is provision in the legislation for guidance to be given about how services are to be delivered, and that guidance power is a broad guidance power. So, the Bill does provide for that, for the kinds of things that you're talking about. Does it do that on the face of the Bill? I don't think it does, but I wouldn't expect that level of detail to be on the face of the Bill. But it certainly provides those regulatory powers.

I think it's just worth us, just for a second—. None of these options are settled yet, for obvious reasons—there is no legislative basis for any of them at this point—but the options would be, in principle, provision within the NHS in the public sector, provision outside the NHS in the public sector, provision in the independent or private sector, and then I guess a commissioning model where the NHS in England is commissioned to provide a service. Those are the sorts of options that any Government would be facing.

Given the level of demand on the service that is currently projected, my personal view is that it seems quite a challenging scenario to imagine that that would be appealing for a private sector provider. If you're looking at 10 applications to 60 applications in the first year, that doesn't feel to me like a large number of people that would attract private provision. I mean, that's just entirely my personal view of it. So, I think it's worth just that broad context around it, but I'm not undermining for a second the points you're making—they're all absolutely legitimate—but I think there's a question of likelihood as well, I think, to bear in mind.

Okay. James.

Yes, just quickly on this point, and it's about equitable access to a service, then. So, if the Senedd said 'no' to having the Welsh NHS delivering this service, which it's within its rights to do, a private provider could come into Wales—as far as I'm concerned, and taking advice from people—who decide that they could provide that service in Wales. We've got a similar situation now, where people can go to Dignitas if they want, who can afford to pay to do it. So, you could have a situation in Wales where those who could afford to pay for assisted dying could access it, and those who cannot afford it would not be able to access it. Is that a consideration that the Government would need to take into account in terms of equality of access to the service as well?

Yes.

Yes. I just wanted to get that on the record. Thank you.

I mean, can I just say, Chair? I just want—. There is a slight risk that the public debate goes ahead of where Governments are in terms of some of the choices, and I would not want to see speculative press headlines about plans, because it's quite a sensitive area. So, I hope—. You know, I'm being candid with you. You're giving me a hypothetical, which you're perfectly entitled to give, obviously. So, I think I'm answering as a matter of principle. There are lots of choices that any Government would need to make in terms of how such a service was developed and delivered.

But it is an active concern.

Well, it would need to be at that point, certainly.

Yes.

I think the nature of this is so big and so emotive, I think a lot of us want to explore it wider than where you may be, and that's natural, I think. But thank you for reminding us of that.

John, I think you've got a final question, perhaps.

Yes. Just finally, is there anything else you would say, Cabinet Secretary, about further work that would be needed before voluntary assisted dying services could be introduced in Wales—you know, the impact assessment, the planning, the consultation—and the timescales involved?

Yes. So, it's obviously very early days, and the level of engagement at this stage has been good, but it has been technical, in order to make sure that the devolved powers of the Senedd and Ministers are protected in the Bill, and enhanced, as they have been, and also that there's a workability to the proposal. So, that's the level of engagement at this stage, which is what you would expect it to be.

As we move now towards—. If the Bill proceeds, as it seems to be doing, it's likely that Royal Assent would be at the end of this year or early next year, so that's obviously when we'd know what the legislation is. And there's a four-year—. Well, 2029 is the backstop date for introducing the services in England, and there's obviously a mechanism we've discussed already here in Wales, so a lot of work would need to happen really, planning for that. So, the sorts of things we've been discussing today: what might the models be, what are the pros and cons of each of them; what are the workforce implications—we've talked about that—what of the equality of access, the geographic questions. So, all of that would need detailed consultation with stakeholders, between the Governments, between parts of the NHS in Wales, so there's a significant amount of work that would need to be done. I think given the timing, practically speaking, most of that will end up being in the hands of the Government in the new Senedd. But there will be some work that needs to happen, probably from the autumn onwards this year, as the shape of the legislation becomes more settled, to give that Government of the new Senedd some of the options it would need to take that work forward. So, that's the sort of time frame, roughly, I think.

Yes, okay. Diolch yn fawr.

Okay, thank you. Lesley, can I ask you—?

Thanks very much. Looking at guidance, obviously very robust guidance will be needed for the way this legislation will be operated. It would be for Wales's chief medical officer to prepare and publish the guidance as we currently stand. As a committee, we've written out to stakeholders on their views about it, and I think everybody, every stakeholder that we approached—so, hospices, the Royal College of Psychiatrists, the older people's commissioner—think that they should be consulted by the CMO before that guidance is brought forward. Have you got any views about the provisions of that guidance, and whether you've had discussions with the chief medical officer, whether she's had discussions with her counterpart in England et cetera?

So, there are a number of guidance provisions in the legislation. The most broadly based ones are ones that are in the hands of Welsh Ministers themselves, and they are required to consult with a wide range of people, as you would expect, including the CMO, but also including people representing people with learning disabilities, protected characteristics, palliative care, hospice provision, and then there's a broad provision that is around 'and anybody else who Ministers feel is appropriate'. My own view is that that is a good way of proceeding. It’s a broad expectation; it's specific on the sorts of groups of people that are most likely to have a strong interest or an informed view.

I know you've had some evidence from stakeholders who've said, 'Well we want—.' I think the older people's commissioner said, 'We want older people referred specifically.' I myself wouldn't be able to make a case for that. If you look at the impact assessment, the equalities impact assessment that the UK Government has undertaken, I think, in almost all of the protected characteristics, they identify particular risks, or particular interests, if you like. So, they talk about the interests of women as caregivers, they talk about the interests of LGBT groups as having particular exposure to mental health. So, there are characteristics of each protected characteristic that seem to me to mean that you would have to have a broadly based approach. So, identifying one group of those and saying, 'Well, this group needs particular consultation', I don't feel is the right approach. So, I think that the balance is well struck in the clause as it's drafted now.

What about reviewing the guidance? You mentioned the backstop around the provision of services by 2029. This is something that will, I think, need reviewing. Do you think there should be provisions in the Bill for that to be done?

I think it's implicit, isn't it, in the legislative requirements to issue guidance, that that is subject to review. I think particularly, though, and there's some provision already in the impact assessment, from memory, in relation to this, the UK Government are working through what some of the monitoring and evaluation of services, when they are established and implemented, looks like. We would want to do the same, obviously, in Wales—or we'd want to do monitoring and evaluation; whether it ends up being the same, obviously, is a choice for us, I think. I can imagine, unsurprisingly, that, as that monitoring and evaluation starts to take place, you can see the need to adjust guidance, possibly quite regularly. It's a new service, it's a new kind of service, so I would imagine there would need to be a very keen oversight of that guidance, in particular in early years, certainly.

Thank you, Lesley. Joyce, will you lead us on palliative care?

Yes, the impact on palliative and end-of-life care. The stakeholders are all agreed that, regardless of any law on assisted dying, palliative care is in urgent need of improvement. So, that said, what commitments can you give about protecting and strengthening palliative care? Now, I know this is outside the legislation, but it's a serious question from those groups, and you've heard it already.

Delivering high-quality palliative and end-of-life care is, obviously, a clear commitment and a priority for the Government. The committee will probably remember that, before we debated the in-principle motion, some months ago at this point, I think in advance of that we issued a written statement updating the Senedd on what we were doing in the palliative care policy area. I accept the point that it's separate, but it's clearly in the minds of many people, and it obviously is a relevant consideration and factor.

So, we're investing more than £16 million a year at the moment in delivering equitable access to palliative and end-of-life care, or increasing the equity of access. There's also a body of work going on separate to that. So, we are working with hospices, with the national palliative and end-of-life care programme board, and the joint commissioning committee, which commissions palliative care in the NHS,FootnoteLink on a number of the challenges that colleagues will obviously know that hospices in particular are facing. Alongside that, there is work under way to develop a specification and a commissioning framework for hospices specifically, which relates to both adult and children's hospices. Ben, I can't remember the time frame for that, maybe you can help the committee with that.

Yes, the intention is for it to be live in April 2026.

Okay. Running, of course, alongside this, the Royal College of Psychiatrists have suggested that access to psychological care as part of palliative care needs has to be improved before there's any confidence that people are able to make an informed choice about assisting dying. What's your response to that comment?

Well, confidence, I think, is something we should be cautious about in this space generally. But, on the specific point in relation to psychological care, I absolutely agree that access to psychological care as part of that broader palliative care, end-of-life range of care options, quite separate from the Bill, really, but clearly relevant as well, is crucially important. The quality statement for palliative and end-of-life care has a lot to say about expectations in relation to delivering it, but I absolutely agree it's critical.

The equality impact assessment, there are several parts to that, but particularly keeping our psychiatric ability to make choices, is there a specific—? I know you talked about not giving specific focus to specific people, but one of the areas I think would require some focus is neurodivergent individuals, whether they are neurodivergent before being ill or post an illness, and the access to trained staff, because many neurodivergent individuals will not be able to express their will—it will have to be interpreted on their behalf, and there's a big issue of safety around this aspect.

So, the Bill already mandates that medical practitioners who would be involved in delivering voluntary assisted dying services have to undergo specific training, and that includes safeguards for autistic individuals. So, there's provision in terms of the staff training dimension already. You mentioned it from an equalities impact perspective—I think one of the reasons why I think the requirement to consult in relation to the issue of guidance is broader than simply identifying protected characteristics is that there are other cohorts of people who have particular risk factors or have particular needs or interests in the context of this kind of service, so those with the neurodevelopmental conditions. But also, more broadly than that, there are questions of socioeconomic impact as well, and I think there is a set of considerations that any Government bringing forward guidance would need to take into account, which isn't an Equality Act factor, it's a broader factor than that. So, I think that's why having that broader expectation in terms of who you consult on the guidance is actually really important.

Can I bring Mabon in, please?

Just a few issues to follow on from that, and on that final point, with regard to socioeconomic circumstances, a number of people have contacted me with concerns with regard to the effect on people from the most disadvantaged communities, for example, and particularly the concern about coercion, that someone from a poor background, who perhaps couldn't afford care in a care home and the costs related to that, or someone who couldn't afford the palliative care due to the distance of travelling, would maybe feel pressure to opt to end their own life. Do you believe that the Bill, as it currently stands, gives an answer to those concerns?

Yes. My expectation with this sort of Bill is that it creates a framework, if you like, that this sort of thing can be considered fully. I think, in the way that we've just discussed and in our context here in Wales, that clause 42 of the Bill, namely the one where regulations come forward, and then—. I've forgotten which clause relates to the guidelines, but it'll be in your information, I'm sure.

The combination of those two things, I think, creates the sort of framework that I would expect to see. How that operates at a grass-roots level, of course, is something that any Government would want and have to consider. And I acknowledge the points you've made, and I would also say, in terms of health inequalities, equal access to services, in terms of the costs of providing documents, and other dimensions comes into it as well. So, I'd expect that any Government that intends to introduce this sort of service would have to consider all of that in creating the framework, in designing what sort of service it is, and all of those things.

If I may, therefore, continue with the same sort of questioning, and you may feel that you've already answered on this, but I just want some clarity. In terms of palliative care, we know, for example, that in rural Wales, it's very difficult for people to get access to palliative and hospice care at the end of their lives, and there are some specific communities in Wales, for whatever reasons, who don't have that access to services—communities from the south of Asia, for example, who have less access to palliative and end-of-life care. So, there are groups that are currently not getting the necessary care, and they may perhaps also choose—it's the wrong wording, sorry—they perhaps would feel pressure to opt for end-of-life care. So, there's a need to ensure that palliative care is in place before people can opt for that other option. Are you confident that that provision is available across Wales, and that there is equality in that provision, before this kind of legislation comes into force?

My personal view is—. I understand the link that you're making, and I don't disagree that there is a link, but I think it's important that we look at palliative care and end-of-life care as a policy area that deserves investment and development that's independent of the Bill's developments too. Of course I understand the link, but I think it's also important that we see that need independent of the Bill as well. So, the sort of thing that we've been discussing now is how do we increase the provision so that it's equal for all. That's exactly the sort of thing that we're trying to do through the quality statement and through the commissioning framework and so forth. That's exactly part of the intention of that work.

Okay.

James.

I've visited quite a few hospices, actually, in the last couple of months, and one thing that keeps coming forward is the funding of palliative care. There is a concern with this Bill, because it's all end-of-life care, that actually the funding for a new assisted dying service would take away perhaps funding that we have in the palliative care space. Has the Welsh Government done any analysis of the funding models around this, of how much this could cost the Government to implement, and how it would have to re-rationalise money across departments to make sure that it's actually funded properly? It is a concern that the sector do have.

To be clear, I would make no case whatsoever for diversion of funding from palliative care into voluntary assisted dying services. I think it's a separate and new service, if it were to be provided, and I think it would be the wrong thing to do to make the transfer that you've talked about. I would find it very difficult to see a Government wanting to do that, candidly—although I understand the concern.

We have estimated costs, currently on an England-and-Wales basis, which are set out in the impact assessment. They deal with training, staff costs, the commissioner's costs, as well as initial education and awareness raising. That's all available in the impact assessment, but it's currently on an England-and-Wales basis. We would need, obviously, to refine that if a choice were to be made to bring forward regulations.

Mabon, to come back in.

Can I follow up on that question, please? The evidence that I've received from the sector suggests that, when legislation of this type has been introduced in other countries, we've seen less investment in palliative and end-of-life care. If you look at Canada, Australia, New Zealand, Spain—countries that have introduced this kind of legislation—they've gone from being very high in terms of their funding of end-of-life care to a relatively lower level. That's a real danger. You may be right that your principles as a Minister are quite clear that you would not wish to see money being moved from one to the other, but who knows what would happen in the future. So, how can we ensure that that money is earmarked for end-of-life and palliative care, and that it isn't cut off to provide services of that kind?

Just to be completely clear, I wouldn't welcome that at all, and I wouldn't agree with that happening at all. But if the question is, 'What is the means of providing a guarantee that that doesn't happen?'—on the whole, as you know, the budgets of health boards, in this context, aren't things that are earmarked or ring-fenced. As far as I know, perhaps it would be possible to ring-fence a part of the budget for healthcare and palliative and end-of-life care if this was a risk. This is happening already in terms of mental health, as you know. It's not a common occurrence, for reasons that will be obvious to the committee, but, technically, as far as I know, it would be possible in terms of palliative and end-of-life care in the future.

Okay, thank you for that. Just moving on, then, Cabinet Secretary, there has been a proposal for a voluntary assisted dying commissioner. Is that somebody you believe would create independence and oversight over the independence of assisted dying in Wales? Is it something that you support?

Well, I think the proposals in the Bill do provide that level of independence and oversight that you described. I think it's a senior person appointed by the Prime Minister monitoring the compliance functions that are all there. There is a requirement, as you will know, for the commissioner to submit an annual report to the Welsh Ministers, which should be laid in the Senedd. So, those are all elements that—. That latter element has been strengthened in the progress of the Bill to where it is now, which is a good thing to see, and the mechanism has moved from the chief medical officer to the commissioner, which I think is also probably the right place for it to be. So, I think where it is now has improved in the passage of the journey of the Bill, and I think it's pretty robust.

And that person could operate over Wales?

Yes, that's the intention, which is why they would report separately to Welsh Ministers on the operation of the Act in Wales.

And Welsh Ministers will be happy to accept that situation?

Well, I think, because we're talking about a range of reserved and devolved services, it does make sense for that to be the mechanism. But we were keen to make sure that the experience of Wales specifically was identified, because there will be conceivable differences in how a service is provided and impact and so on, and so having that separate lens I think is important.

Great, thank you. Mabon, can I ask you to take section 6?

In terms of the Bill and ensuring that there is provision for the Welsh language, as a starting point, are you content that the Bill, as it currently stands, is going to provide the Welsh language provision for those who need it in their mother tongue?

The Bill has been strengthened in discussions between my officials and the person who's introduced the Bill to ensure, for example, that the review panel that looks at people's applications take every step possible to provide that through the medium of Welsh. There have been examples of that as the Bill has progressed, and also that the person who requires Welsh language services receives them—that reasonable steps are taken to provide those services in Welsh. So, that is on the face of the Bill, and that is appropriate, I think. But implementing that at grass-roots level is going to be a different question, and perhaps you intend to ask about that. Ensuring the availability of staff who can provide services through the medium of Welsh and staff who haven't used the opt-out—you could see that the combination of those two things is going to be challenging. But, of course, it's not impossible.

That was exactly the second question I had, and you've partially answered it already. If you consider the panel, you need a judge, you need a psychiatrist and you need a social worker. There are two elements of that workforce that are outside of your responsibility. But are there models that have been drawn up by the Government, or by Kim Leadbeater, in this case, to see whether that capability is available in Wales to ensure that there are enough judges, enough social workers and psychiatrists that can work through the medium of Welsh to provide this service?

No modelling has happened so far. There will be a need to do that if things progress. I accept the challenge that you've set out. At the end of the day, I think, in this area, it's specifically important that people feel that they can have access to advice and communicate with people in the language that they want, for obvious reasons. The whole situation concerns vulnerable people making the most significant decision. So, the need for provision through the medium of Welsh—not the demand, but the need for provision through the medium of Welsh—is completely crucial. The ability to do that will depend on a number of other things, as you've said. So, modelling will need to be done to see what the practical impact of this is, but on the level of the provision in the Bill, what the requirements are, what the expectations are, I think that that is in the right place.

And in the same way—and again, I'm sure that you'll provide the same answer—in terms of the clinical side that will have to provide this service, if you consider that up to 90 per cent of the workforce in the palliative care sector are going to decide that they do not want to take part, that is going to be even harder, isn't it, to provide a service through the medium of Welsh?

That is just a mathematical fact, isn't it? If you have 90 per cent—and who knows what the true figure will be, let us be clear, but you are right, that figure has been aired—if you're talking about the majority of the workforce in that element of the workforce refusing to provide the service, then the pool of people that you have left, and how many of those are Welsh speakers, clearly is going to be smaller. Again, what I would say is that it appears in terms of the modelling that the demand for the service is comparatively low. So, you need to look at both in context, but in principle, what you are saying is right.

If I may ask just one final question following on from that, I was talking last week with a family that came to Wales from India to work in the health and care sector, and one of them has had a nasty accident and needs end-of-life care. That poor family. Their first language is not Welsh or English, so what assurance is there or what consideration has been given in terms of provision for those who do not have Welsh or English as a first language?

Well, the same consideration has been given, both in terms of palliative and end-of-life care. As part of the competence framework and the specification these elements have been considered, and work is under way at the moment in the context of 'More than just words' to ensure that these aspects align. So, there are a number of languages, and there's also people's ability to communicate without any language.

BSL and so on.

Yes. So, all of these things are being considered as part of that broader work. The Bill itself has a requirement that doctors undertaking the assessments make the necessary adjustments for someone who wants access to the service in terms of language, literacy and also using people who can provide simultaneous translation services and so on. Those requirements are in the Act already, but as always, implementing that on the ground can pose challenges.

So, you do accept, having heard your own words, that it's one thing to have an Act that tells you what the requirements are, but implementation is another thing.

Of course, that's always true, isn't it? And we're talking here about an Act that's not even an Act yet, so it's very early in this Bill's journey. But, in principle, what you're saying is right.

Thank you.

Well, thank you, Cabinet Secretary. Are there any further, final questions that anybody has? Cabinet Secretary, thank you so much, and then thank you so much for giving us time today on a very important topic, a topic on which there will be further ongoing questions raised. I just wondered, if it were needed—the deadline's been extended to 10 October—if there was a need for a further short session, might you be available in the autumn? If something further comes up, and we want further clarity.

Very happy to do that, Chair.

Thank you so much. We appreciate that.

As always, there is a transcript of today's meeting, which will be made available to check that we have got everything correct on the record. Can I thank you once again for making yourself available today? We appreciate it.

It's my pleasure. Thank you.

Okay, Members, we go on to item 3, and that's papers to note. There are several papers in the bundle. Are you content to note them all? Yes, everybody is. Thank you very much. So, they are noted.

Can I ask us under Standing Order 17.42 to resolve to exclude the public from the remainder of this meeting? All in favour? Okay, thank you.