Terminally Ill Adults (End of Life) Bill

Debate between Baroness Hayter of Kentish Town and Baroness O'Loan

Committee stage
Friday 12th December 2025 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I tabled Amendment 20 and I have put my name to Amendment 220, in the name of the noble Baroness, Lady Foster, who is not able to be here today. I am sympathetic to Amendments 21 and 29 and to the process devised by the noble Baroness, Lady Lawlor, in her Amendments 30B, 265A and 443A.

A huge range of clauses—Clauses 7, 8, 10, 12, 15, 19, 20, 23, 24, 28, 29 and 30—refer to the applicant’s GP practice and the importance of keeping a GP informed. Clause 12(2)(f) includes a provision for the assessing doctor to recommend that the applicant informs their GP practice. These amendments also refer to the very relevant information that may be available from those who are close to the person seeking assisted death.

There is an assumption that the GP knows the patient and that the patient has an ongoing supportive relationship with the UK GP practice. Notwithstanding what the noble Baroness, Lady Gerada, has just said, that is no longer the case for many people. Many patients now see different clinicians on each visit. Locum and temporary staffing arrangements reduce the possibility of a GP being familiar with the patient’s condition or with the context in which they live. Home visits have almost disappeared. People in need of care often have to go to A&E, since doctors no longer visit as they once did. A major theme in UK and international data on GPs is declining continuity of care, particularly where people live in poverty or deprived areas. The Government’s equality impact assessment notes that such people experience “poorer quality healthcare”. They

“have a higher patient to GP ratio … have worse continuity of care”

and

“are more likely to struggle with navigating the healthcare system”.

Amendment 20 in my name would provide that it is not enough to be registered with the GP, but that there must be an established relationship between the GP and the patient. The GP must be able to certify that they have good knowledge of their personal circumstances, having seen the patient at least four times in the year and made at least one home visit in the last 12 months. As I said, the reality today is that many sick and elderly people do not have the relationship they might like with their GP; it is a thing of the past. Moreover, when a person moves into a residential or nursing home, they are often required to change to the GP who attends that facility and who may only have seen them on a few occasions, if at all. A GP who does not know a patient may not have the ability to make the necessary assessment.

The Select Committee heard evidence highlighting the very real inherent difficulties in detecting coercion, pressure and complex capacity issues. Making someone feel that they are a burden does not normally happen by direct coercion but is more likely to occur over a period of time. The National Care Forum stated:

“Our members are concerned that some of the people they support may sadly already see themselves as a burden. This can be financial, or just because they are now reliant on those who once relied on them. The concern is that this makes them vulnerable to deciding for this reason alone, or as a result of exploitation”.


Dr Annabel Price of the Royal College of Psychiatrists said in her evidence that coercion

“is everybody’s business. It is an area that is difficult to rule out confidently”.

It needs to be thought about throughout the process, not just at the scrutiny at the end of the panel. Professor Patel, president of the Royal College of Physicians, said in his evidence:

“Involvement of family within decision-making is important … I feel that the complex decision-making is hard. It has to be shared”.


Amendment 220 would provide a mechanism to allow GPs to consult with those who have a close interest in the applicant’s welfare when there are concerns about safeguarding capacity and undue influence. Such concerns, regrettably, often arise. Family members and close contacts may possess information which could be vital for a robust assessment and which is otherwise unavailable to the assessing medical practitioner.

Professor Katherine Sleeman said that

“complex capacity assessments do conventionally require triangulation, with input and information from the family”.

This amendment would allow access to professional records, including police and local authority records. Medical practitioners may be unaware, for example, of existing domestic abuse situations which have been reported to the police but have not made their way back to the doctor, where you have got a patient or an elderly person.

It should never be the case that the first time that somebody finds out that a family member has been granted a request for assisted dying is when they are asked to go to the mortuary to view the body. Anybody with any experience of the situation in which a person dies by suicide will know the terrible shock and trauma which ensue for surviving family and members. The reality is that, by extending the concept of autonomy to this extent, there can be a terrible impact on the ability to function of those who love the person who has died. Autonomy in this context can cause serious medical problems for those who are left behind. Autonomy, to the extent provided for in the Bill, does not ensure sufficient protection for a vulnerable—

[Baroness Hayter of Kentish Town (Lab)]

Does the noble Baroness accept—because she has been quoting some of the evidence given to the Select Committee of which I was a member—that the committee was not able to hear either from people who were dying or indeed from the families who had been through what she is talking about? That was absent; we lost that. On the particular point she raises about the first time a family may know about it, might she also reflect that the evidence was that most families try to discourage somebody from taking their own life rather than the other way round?

[Baroness O’Loan (CB)]

My Lords, I thank the noble Baroness for her intervention. It is of course the case that the Select Committee was very truncated in its ability to hear evidence. That was a decision of the House and, although we would have preferred to hear evidence from others, it was not possible.

Terminally Ill Adults (End of Life) Bill

Debate between Baroness Hayter of Kentish Town and Baroness O'Loan

Committee stage
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.