Terminally Ill Adults (End of Life) Bill

Baroness Hayter of Kentish Town Excerpts

Friday 9th January 2026 Lords Chamber

[Lord Markham (Con)]

My Lords, I have found this debate to be very helpful, because we all of course want the safest processes possible in all of this. It is clear that we are all reaching to try and find a way that we think will work. To a certain degree, it is all down to whether the best way to do this is through a multidisciplinary panel or a judge-led court process.

The example that the noble Lord, Lord Carlile, gave in terms of life support is quite illustrative, because life support decisions are made by medical professionals. In the vast majority of those cases, they then go through on the basis of that professional advice. It is only in the edge cases or serious cases where there is an appeal process that the family can take to court.

On this proposed process, there is a multidisciplinary panel, very well described by the noble Lord, Lord Pannick, which includes a psychiatrist, social worker and judge—the professionals in this particular area—who will be very well placed to reach a decision in a similar way to life support decisions for which, in the vast majority of cases, everyone is happy that it is the safest and right decision. There is also the oversight role of the commissioner, who is of course a judge in this process and, rather like the example of the life support case, has the ability to oversee and review that case where there are serious concerns. The life support example is a very good one here, given that we are trying to adopt a similar process in the multidisciplinary panel with the oversight of the commissioner.

On a way forward, it may be for the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Carlile, to discuss how those cases can interact. Where the multidisciplinary panel might need oversight, the concern is how that can be triggered and how that can be worked out in terms of the commissioners. We have a framework there that, like the life support example, can get the best of both worlds. That could prove a constructive way forward.

[Baroness Hayter of Kentish Town (Lab)]

I will take the advice of the noble and learned Baroness, Lady Butler-Sloss, and now get rid of what I was going to say, because the noble Lord, Lord Markham, has said most of it. I now have only three points to add, so I thank the noble Lord for that.

First, the big discussion is on whether it should be a court or panel. The reasons for the panel have been put, so I do not need to repeat that. The only thing I would say is that when this was discussed in the Commons, it was not about the capacity of the courts that made them make the change to a panel but about the advice they got that this would be a much better, holistic and patient-focused way of doing it. In fact, making sure that that bit was added was very much welcomed by the British Association of Social Workers and the Association of Palliative Care Social Workers.

Secondly, the mention just now of legal aid says it all. Surely, we do not want this to be an adversarial process. It should not be argued in front of a court that way. I want to be very brief, because I am taking the advice of the noble and learned Baroness to be very brief, but we want this to be a conscientious decision and not one that is adversarial, which is why I think the panel would be so much better.

Lastly, this is not a life-or-death issue, because these people are dying. We are discussing only when they die, not whether. That is different from deciding that a baby will die who was not going to die anyway, or even someone in a permanent vegetative state. That is why I really do not agree that it is right to use the word “suicide”, rather than “assisted dying”. People are dying, and this is the issue of when they die and not whether.

[Baroness O'Loan (CB)]

Is the noble Baroness aware that we are discussing the possibility of having either a panel or a court process? The research and reports show that families and individuals have great difficulty negotiating the Family Division of the High Court and the family-designated judges processes. Legal aid may well be necessary to assist in some of these matters.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords, the noble Lord, Lord Carlile, has done us all a great service. Last night, it was clear that there is a view that some really major parts of this legislation need to be addressed and debated. This is absolutely one of those major parts. It is about where decision-making finally sits. The noble Lord has provided a clarity that could improve safety in relation to the Bill—I will not say to make it safer but to make it less unsafe—and that becomes important.

The scheme that the noble Lord has proposed would reinstate a court-based model that was previously welcomed when the Bill was introduced because of the clarity of decision-making that it provided. On the process of assistance with suicide or having an assisted death, we are not going to argue about the wording here now. That is not appropriate. The clauses relating to the specifics of the lethal dosage of drugs both make the death part of the process clearer and provide better governance oversight. The process also seems to provide some protection for NHS services by putting the decision-making outside healthcare, with clarity of the roles between the two.

I added my name to the amendment to strengthen the conscience clause, Clause 31, so that no registered medical practitioner is under any duty to perform a function in relation to this Bill other than those of notification and recording matters. This avoids eroding NHS clinical services and maintains the core duties and responsibilities of the NHS. It will be particularly important if legislation is passed in Scotland, because we need compatibility of the conscience clause between England and Wales and Scotland. The legislation currently going through in Scotland will have its draft conscience clause removed at the time that the Scottish Parliament goes to vote on it, because the provision of such a conscience clause is not a devolved matter. The exercise of conscience not being a devolved matter will require a statutory instrument passed from this House, or possibly even primary legislation, for it to be then included later in the Scottish legislation.

The noble Baroness, Lady Berridge, raised concerns about the wording of proposed new subsection (1) in Amendment 116. I wonder whether the noble Lord, Lord Carlile, would consider changing that to incorporate the amendment that I have tabled—the proposed new clause would replace Clause 3—over the assessment of capacity. This amendment was developed by the Complex Life and Death Decisions group at King’s; the national expert on mental capacity assessments sits as a key member of that group and as a professor at King’s College.

I hope the proposers of the Bill will recognise that proposed new subsection (2) in Amendment 116 provides very important minimum criteria that must be provided: questions that must be asked when such a decision is to be made. The court can certainly ask for them to be provided to it. It seems as if a panel would be discretionary over whether these criteria were looked at, and it would strengthen confidence in the decision-making to know that they were there, because it would provide transparency and consistency, and a process of appeal would be available. We know that no appeal system exists in the Bill as currently written in relation to panels agreeing to an assisted death being provided, and the real concern there is that these panels could eventually become something of a tick-box exercise under quite a lot of process. As has said been said before, those with a judicial background are not acting in a judicial capacity on the panels, whereas the proposal by the noble Lord, Lord Carlile, provides judicial capacity and processes.

The amendment that seems to be key is Amendment 120: its proposed new subsection (4)(b) would require a statement of medical fact, with the decision-making being taken by the court. Again, it will be much easier for people to provide a statement of medical fact than to feel that they are taking a decision over the provision or non-provision of lethal drugs. In proposed new subsection (5)(a), I hope that the doctor has to be on the specialist register for the specific condition of the patient—I seek clarification on that—or to have been a GP principal for longer than three years. It is important to be clear that this should not be a doctor who is at a training level, even if they have been a trainee for more than three years, because the ultimate responsibility sits with the consultant or the GP under whom they are training. There could be confusion over responsibility if this is not clarified.

On Amendment 120’s proposed new subsection (6)(a), can the noble Lord, Lord Carlile, confirm that it may be not the GP at all who is involved but a hospital consultant or long-term associate specialist who has been providing medical care? These might seem like minutiae, but we are in Committee and discussing amendments that can be changed, and I think it will be important to have that clarity.

It seems that proposed new subsection (5) in Amendment 426 seeks to provide additional security with a court-appointed medical expert. This proposal seems to protect us against going down the route that Canada has gone down. It seems to really attempt seriously to detect undue influence. Allowing interveners is very important; it is all part of the desire for there also to be an appeals process and of getting all the information.

I stress that there is a clarity between decisions about whether somebody is given lethal drugs to significantly shorten their life, accepting that a prognosis of six months is not much more than a guesstimate—in fact, it is a guesstimate—and the position that has been discussed over life support decisions. When a patient is on life support, the decision to cease that intervention is based on two potential factors: one is the futility of continuing with an intervention that is not achieving a therapeutic goal, and the other may be because the patient withdraws their consent for continuing that intervention in an informed way and has capacity to do that. That is fundamentally different from somebody providing lethal doses of drugs with the deliberate intention to shorten a person’s life—which may be by days, weeks or months, but may be by years. As has already been said, we all have experience of people given a very short prognosis that turned out to be completely wrong.

I have some questions for the noble and learned Lord, Lord Falconer. I know that he has already been given a large number of questions to answer, but I think it is really important. First, in 2024 he stated that

“family judges are … completely unsupported”

and that the family justice system is—I think I can quote correctly—“literally crumbling”. Were these the reasons behind the removal of the court oversight when the Bill was considered in the other place?

Secondly, in discussing these proposals with officials, what assessment has been made of the volume of cases outlined in the impact assessment being handled by this system, and what provision has been made for recognising that the numbers in the impact assessment are almost certainly inappropriately low? The data from Australia, New Zealand and other places has shown that, by year three, the uptake will probably be about 10 times higher than written in the impact assessment, because the impact assessment was based on data from quite a long time ago, when the Oregon system was instigated.

Thirdly, what costing has been undertaken for each of the models—the model of the panels as put in with the different numbers that might be involved—and what consideration has been made for a costing over this model?

I ask the Minister: what budget has been put aside to fund the system, whichever model is adopted, and what option appraisal has been undertaken over the safety of individuals and the ability to identify coercion with a higher degree of probability than currently exists and to identify abusive relationships?

As I have said, the financial costs for each model, tested against the impact assessment numbers, appear unrealistically low. I think we all look forward to the questions being answered.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, given the number of questions that have been put to the Minister—and, indeed, to my noble and learned friend and to the mover of this amendment—I wonder whether it might be useful if we now move to the Minister and the others to answer some of these questions. There are so many that it would really help the Committee if we could hear some of the answers.