Terminally Ill Adults (End of Life) Bill

Debate between Baroness Murphy and Baroness O'Loan

Committee stage
Friday 14th November 2025 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I declare my registered interest as a trustee of St John & St Elizabeth Hospital in London.

The first clause sets the tone for the rest of the Bill. It has so many deficiencies and such inherent danger that it has rendered necessary the tabling of so many amendments. Multiple amendments were, of course, tabled in Committee in the other place, but they were not permitted to be debated or voted on. Our duty is therefore to scrutinise the Bill, not to meet arbitrary timetables and a limited number of Committee days. We have to do it properly, because on this work that we do rest questions of life and death.

Clause 1 deals with the “who”; who can decide to end their life with medical support or to be assisted to end their own life when they cannot do it themselves. The definition of “who” is simple and sparse. It demands only that someone has capacity, has reached the age of 18, is ordinarily resident here and is registered with a GP. Clause 1 also deals with what is required—the process for determining. It requires that any decision made by a person who fits the definition in Clause 1 is made by someone with

“a clear, settled and informed wish to end their own life, and … has made the decision … voluntarily”,

and who is not the product of coercion or pressure. We will come to that, but it is not enough.

The decision to end one’s own life is the most profound decision that one can make. One might argue that some decisions are not as immediately serious. If, in a fit of despair or loss of hope, I decide to refuse treatment, I might still change my mind. Similarly, if I stop eating, I may choose to reverse that decision. If I decide to end my life, there is no coming back and no reconsideration, and that is why it is such an important matter.

I think the noble Lord, Lord Pannick, referred to advanced directives in these provisions, by which people can declare their future care, but the decision to refuse treatment and go for a natural death is not a proactive decision to end life. There is no precedent for the Mental Capacity Act being used for a decision to end life.

[Baroness Murphy (CB)]

I would like to briefly intervene, because every day of the week there are hundreds of decisions made in the NHS and independent care about life and death. I will give a very brief example. My brother has had renal failure for 40 years. He has been brilliantly looked after by Guy’s Hospital, and, after the failure of the last transplant, he has been on dialysis for the last five years. It has become more and more wearing and disabling for him, and he has decided that, by Christmas, he would like to make the final decision, with the help and the support that he is getting from the Guy’s team, to end his life.

He is supported in that by his wife, brother, sister and children. We have supported him to make his own decision. It is a life and death decision that he will be supported through. That is the way it happens, day in, day out, in the health service. It is a nonsense to say that life and death decisions are not made. Furthermore, what test will they use? They will use the Mental Capacity Act.

[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.