A parliamentary bill that sought to improve the standard and provision of palliative care across England and Wales has stalled.

Brought by palliative care expert Professor the Baroness Finlay, and supported by Care Not Killing, the Palliative Care Bill had passed successfully through the House of Lords. Yet it was not granted time to pass through the House of Commons before the end of the last parliamentary season. This turn of events was hinted at by Health Minister Lord Hunt back in February during the Bill's second Lords' reading:

Understandably, the noble Baroness's Bill has drawn widespread support from your Lordships' House. While the Government understand and obviously appreciate the Bill's intent, it is my duty to point out some of the problems with it...

Essentially, we do not believe that it is necessary to impose a statutory duty for the provision of palliative care, as the general powers in Sections 1 to 3 of the National Health Service Act 1977 are sufficient to enable the Secretary of State to provide or secure the provision of palliative care as part of the health service...
Section 2 of the Act provides the Secretary of State with powers to provide such services as she considers appropriate for the purpose of discharging her duties under the Act. Those functions are in turn delegated to primary care trusts in England. These obligations are general duties. They also give discretion to the Secretary of State concerning the circumstances in which she will provide those services. The Secretary of State is not obliged to meet all medical or nursing requirements or demands. She is entitled to take into account the resources available and the demands placed on those resources.

In contrast, the Bill of the noble Baroness, Lady Finlay, appears to create a duty owed to every person with a terminal illness. As a result, the Secretary of State would be failing in her duty if an individual showed that she had failed to ensure the provision of palliative care to that individual so as to meet their individual needs. The Bill sets down that palliative care would be provided, “to such extent as is necessary”, to meet each person's reasonable requirements. By comparison, the NHS Act provides for the provision of services to such extent as the Secretary of State “considers necessary” to meet all reasonable requirements. The noble Baroness's Bill does not take account of the possibility that there may well be a considerable gap between the minimum requirements that the Secretary of State or a primary care trust would consider necessary and the more extensive requirements that an individual might consider necessary.

Under current legislation, a primary care trust can consider the provision of end-of-life care services alongside the demands on and requirements for other NHS services. The noble Baroness's Bill does not allow for that. In practice, her Bill, if enacted, would elevate the provision of end-of-life care services above all other NHS services. That is the problem with it.


The problem is that, if we were to accede to the noble Baroness's Bill and to the noble Lord's amendments on Monday, what about the other services? It must follow that, one way or another, other noble Lords will seek to enact similar provision for all other NHS services. As night follows day, that will follow.