Terminally Ill Adults (End of Life) Bill

Baroness Hayter of Kentish Town Excerpts

Friday 14th November 2025 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, the noble Baroness has told us a very sad story about her brother, but it really is not on the issue that I am speaking of today. It is, of course, the case that decisions about life and death are made. What I am saying is that, in this case, the decision is to ask the state to enable the person to administer that, and for the state to bring all the forces and resources available to do it. That is what we are debating today: does the Bill provide a situation in which “capacity” is the correct term to use in this clause?

I support Amendment 2. The use of the word “capacity” is undoubtedly provided for in the Mental Capacity Act. This Bill says that

“references to a person having capacity are to be read in accordance with the Mental Capacity Act”,

which is very helpful. The Mental Capacity Act was not passed to deal with the decision to end one’s own life, but rather it was formulated with the basic assumption that a person has capacity. In November 2021, the Supreme Court said in A Local Authority v JB:

“‘A person must be assumed to have capacity unless it is established that he lacks capacity’”.


It continued:

“This principle requires all dealings with persons who have an impairment of, or a disturbance in the functioning of, the mind or brain to be based on the premise that every individual is competent until the contrary is proved. … Competence is decision-specific so that capacity is judged in relation to the particular decision, transaction or activity involved. P may be capable of making some decisions, but not others”.


Therefore, there are circumstances in which capacity cannot be assumed and a person may not be capable of understanding, to the necessary extent, the information that should underpin any decision-making, or of analysing the consequences of that information or of making a decision in their own best interests. When these conditions are not fulfilled, the Mental Capacity Act requires, in particular circumstances, that a decision be made by a third party, but always in the best interests of the person. As the Royal College of Psychiatrists told us in evidence,

“an assessment of a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding”

than assessing capacity for treatment decisions.

We have received very helpful evidence from Professor Gareth Owen, Professor Alex Ruck Keene, and Professor Katherine Sleeman of the Complex Life and Death Decisions group at King’s College London. They have stated quite clearly that

“the MCA 2005 was not designed to be a universal framework for determining capacity.  It is primarily a workaround for the inability of a person to give consent to actions required to secure their health and social care needs. In the MCA 2005, the principles applying to and the test for capacity apply in a context where a decision can be taken on a ‘best interests’ basis for the person if they lack capacity”.

In the context of the Terminally Ill Adults (End of Life) Bill, they state that,

“no such best interests decision could ever be made”.

Capacity is not a constant state. It may fluctuate depending on a variety of circumstances, including some illnesses, disabilities and the side-effects of medication. A person can have capacity in relation to one decision and not another. A person may have capacity at one time, but not another. It is an enormously complex issue. When the decision in question is the decision to end one’s own life, capacity to make that decision requires very significant analysis in each case at the time in question.

That is the reason why “capacity” is not an adequate word to deal with the situation in which a person is coming to make a clear, settled, and informed decision. “Capacity” cannot be the test. “Ability” is a wider test, and there will be opportunity for the Committee to consider what that might look like as we go through future groups.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this issue was well discussed in the Select Committee, and I want to refer to Professor Sir Chris Whitty, who I think knows a little bit about this. I want also to respond to and endorse the words of the noble Baroness, Lady O’Loan, because she talked about concentrating on the interests of the person concerned. They were not exactly her words, but she was saying how important that was. We are talking here about someone who is dying. They are in the last months of their lives and, under the Bill, they must have capacity throughout the stage for which this legislation will provide. In other words, at each stage, they must have capacity. Professor Sir Chris Whitty, who knows a lot about this, spoke on it—it is on page 153 of the committee’s report, if anyone would like to look. He said:

“There is plenty of evidence, and it goes with common sense, that, when people use an existing system that they have used for many years, that they are used to and that has been tested in the courts, they are far more likely to be able to follow a reproducible and sensible pattern of making decisions than if they are faced with a completely new approach which they have not used previously and in which there may well be legal ambiguities the courts have not yet adjudicated on”.


If we want this Bill to work, as I assume the House of Commons did when it sent it to us, and as I think a majority of this House does, we must give to doctors and everyone else a form of words that they already understand, they can use and, above all, what is in the best interests of the patient in front of them.

[Baroness Noakes (Con)]

My Lords, I am a little confused about this debate. The debate is on Amendment 2, which would replace “capacity” with “ability”, but we have heard hardly anything about ability. We have heard from the noble Lord, Lord Pannick, who said that it would replace a defined term with an undefined term, which is an issue we should take seriously, but most of the debate has been about whether the definition of “capacity” in this Bill—that in the Mental Capacity Act—is the right one to use. We are not debating whether “ability” is a better term; I hope that we can do that and move on to some other important areas in this Bill.

--- Later in debate ---

[Baroness Hayter of Kentish Town (Lab)]

Does the noble Baroness accept that someone can take their own life now? They are dying; it is completely legal for them to commit suicide without anyone doing any checks about whether they have capacity, ability or anything else. So the Bill is in fact adding a safeguard that is not there at the moment, because at the moment someone can take their own life.

[Baroness Fraser of Craigmaddie (Con)]

I thank the noble Baroness for her intervention. Every suicide is a tragic situation, and I am sure that all of us would wish to help that person. But that is not what the Bill is about. It is about whether we find a method where they have a settled will to make a decision—to make a choice.

Terminally Ill Adults (End of Life) Bill

Baroness Hayter of Kentish Town Excerpts

2nd reading
Friday 19th September 2025 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we have heard three arguments against the Bill: from those who oppose assisted dying in principle, those who say it will undermine pressure for palliative care, and others who think that the Bill is faulty.

There is not much I can say to those whose objections are deeply religious, but I disagree with the right reverend Prelate the Bishop of London that enabling a dying person to end their own life means that we, as a society, believe that

“some lives are not worth living”.—[Official Report, 12/9/25; col. 1785.]

I say no; it means that we value our fellow human beings and their choice to hasten the inevitable, at a time of their choosing.

I acknowledge the views of the noble Baroness, Lady May, although I do not think she should prevent others from exercising a different view. I disagree with her that:

“As a society, we believe that suicide is wrong”.—[Official Report, 12/9/25; col. 1784.]


As the noble Lord, Lord Pannick, says: it is legal, but there are no safeguards—particularly when people go to Switzerland. As we have heard from a former DPP and a former chief constable, the current need to interrogate the loved ones of those who have legally taken their own life is a situation none of us would want to face.

As the noble Lord, Lord Purvis, and others have said, the Bill is not about people choosing to die. They are dying. The Bill is about helping to make those final days easier for those who so choose. It is about dying people who want a loved one with them; the Bill allows that. It is not just about a medical intervention. It is for those who want a loved one with them, if they choose to end their own life, when the pain, discomfort, indignity or scale of intervention become unbearable.

Some noble Lords claim that the Bill would undermine pressure for palliative care. But there is no evidence for that. Indeed, the Bill has already led to more discussions about dying; the need for dignity, support and help; and it may even have increased the likelihood of improved provision. I say to those noble Lords: campaign away for palliative care, but do not do so at the expense of those who have had palliative care and then, in their final hours, want help to die.

Palliative care is about improving the quality of the last part of life for those approaching death, by managing pain and other symptoms—often in their own home. Why, when those symptoms are no longer manageable, should professional help be unavailable at a time and manner of their choosing and in their own surroundings, alongside those they love?

I address the argument from those—who would otherwise support assisted dying, rather than those who never would—who say that this Bill is not right. Our task is not to undermine the clear public desire, and the Commons’ support, for this measure. Our task here is to ensure that it achieves its ends but with proper safeguards, albeit not with so much bureaucracy that its purpose is defeated. We should look for genuine improvements, helped by a timely Select Committee and then by the whole House, without derailing its timetable. Let the Commons then have the final word.

There is a right to die; it is already in law. This is about helping those who, in their final days, when the inevitable is coming, can have the comfort of professional help as well as having their families around them if they choose to end their life.

NHS: Single-sex Provision for Staff and Patients

Baroness Hayter of Kentish Town Excerpts

Wednesday 8th January 2025 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, would the Minister agree—

[Baroness Hayter of Kentish Town (Lab)]

My Lords, NHS England wrote to me on the—

[Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)]

I think we will hear from the noble Baroness, Lady Thornton, first.

--- Later in debate ---

[Baroness Merron (Lab)]

I know that everybody in your Lordships’ House will take the view that the NHS is there both as an employer—as all employers are; this is not specific to the NHS—and in its service to patients. It is there to treat all with the right dignity and respect. We have a legislative framework to which reference can always be made. We will see what further guidance is needed—and that may be to all employers, not just the NHS. Again, I cannot emphasise enough the need for careful consideration and the involvement of all staff, on what has to be a trust-wide basis, because everybody is different in terms of their estate and what their challenges may be. It is not as simple as numbers: it is about fairness and dignity for all.

[Baroness Hayter of Kentish Town (Lab)]

My Lords—

[Lord Cashman (Non-Afl)]

My Lords—

[Lord Kennedy of Southwark (Lab Co-op)]

We will hear from the noble Baroness, Lady Hayter.

[Baroness Hayter of Kentish Town (Lab)]

NHS England wrote to me to confirm that any patient can choose the sex of a chaperone. Will the new guidance define what is meant by “sex” in that case?

[Baroness Merron (Lab)]

There is, of course, already a definition in legislation of what that means. I know my noble friend will understand that I cannot predict what the guidance will be, but I will certainly pick up the point she has made.

Palliative and End-of-life Care: Funding

Baroness Hayter of Kentish Town Excerpts

Wednesday 4th September 2024 Lords Chamber

[Baroness Merron (Lab)]

As the noble Lord will be aware, statutory guidance and service specifications are provided to support commissioners in ICBs to meet their duty. As I am sure the noble Lord is also aware, NHS England has developed a palliative and end-of-life care dashboard that brings all the relevant local data together and helps commissioners to understand the situation so that they can provide for their local populations. This is part of ongoing work for this new Government to see how we meet requirements to provide dignity, compassion and service at the end of life and just prior to the end of life.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, although I pay enormous tribute to the hospice movement, there will be some people for whom end-of-life care means assisted dying. We will have the Second Reading of the Bill in November. I hope that my noble friend will be able to give strong government time, if not government support, to enable that Bill to make good progress.

[Baroness Merron (Lab)]

The Prime Minister has already reiterated his commitment to allow time for a Private Member’s Bill and a free vote. I recognise that this is an extremely sensitive issue with deeply held views on the various sides of the debate. Our commitment is to ensure that any debate on assisted dying in Parliament will take place in a broader context of access to high-quality palliative and end-of-life care and that we will have robust safeguards to protect vulnerable groups, if the will of Parliament is that the law should change.