Terminally Ill Adults (End of Life) Bill

Debate between Baroness Blackstone and Lord Markham

Committee stage
Friday 14th November 2025 Lords Chamber

[Lord Markham (Con)]

My Lords, it is clear, I think, that we all want the same thing here. Whatever one’s feelings about it generally, if this Bill is passed, we want to make sure that the person is in the right position—I do not use either “capability” or “ability”—to make a decision on whether to take part in assisted dying.

We all want the same thing, so what we have to decide is whether we believe that the existing framework, the Mental Capacity Act, can work here. I have heard a body of evidence that says it can. I respect in particular the evidence from Sir Chris Whitty, who, as Chief Medical Officer, is probably our highest adviser in the land in the medical space. He believes that it can do it. I also respect the opinions of the psychiatrists who have written in and said that, in their professional opinion, they are able to use the Mental Capacity Act to assess whether a person is in the right position to take part in assisted dying. So, as the noble Baroness, Lady Andrews, and others have made out, we have a body of evidence and 20 years of experience showing that the Mental Capacity Act can work and is already acting in very similar situations.

One can argue whether these two things are exactly the same, but they are pretty similar: both involve life-and-death situations, such as “do not resuscitate” orders, people deciding not to eat or drink any more, and people with motor neurone disease asking to come off ventilators. These are all very similar situations that, today, are decided under the Mental Capacity Act. So we have a system that is being used and which our best adviser says works, and we are setting an unknown definition against that. If we set about asking, “What do we mean by ‘ability’?”, we would probably all come up with very different answers. This would be untried and tested; it may take years, if not decades, to find something, against something that exists today. It would be very confusing: when do you use the Mental Capacity Act and when do you use this new definition?

Again, we all want the same thing: for the person to be in the right position. Our highest expert in the land says that the Mental Capacity Act can do it, and a number of psychiatrists are also saying that they can make the assessment under it. To my mind, that is what we should be considering.

[Baroness Blackstone (Lab)]

My Lords, I agree entirely with what the noble Lord, Lord Markham, just said. We have a tried and tested way of measuring people’s capacity, but we do not have a single tried and tested way of measuring people’s ability. That is a very broad concept, and anybody who has worked in education at any level will say with absolute certainty that it would be unwise to replace what is currently in this Bill with “ability”. There is no definition of it—it can cover a vast variety of different kinds of ability—and finding an adequate test could take years.