Terminally Ill Adults (End of Life) Bill

Baroness Nicholson of Winterbourne Excerpts

Friday 9th January 2026 Lords Chamber

Amendment 120A from the noble Baroness, Lady Coffey—

[Baroness Nicholson of Winterbourne (Con)]

My Lords—

[Baroness Levitt (Lab)]

I really need to get through this. Can all interventions be saved until the end? If I can get through the things I really need to tell the Committee about, I will take interventions.

[Baroness Nicholson of Winterbourne (Con)]

My Lords—

[Lord Lemos (Lab)]

No, I am sorry; the Minister has made it clear that she will try to take any interventions at the end if there is time.

[Baroness Nicholson of Winterbourne (Con)]

My Lords—

[Noble Lords]

Order!

[Baroness Levitt (Lab)]

I am so sorry. I mean no discourtesy to the noble Baroness, for whom I have a great deal of respect, but I must get through the matters that the Government need to tell the Committee about, so it can make decisions about this particular group.

Amendment 120A, in the name of the noble Baroness, Lady Coffey, is plainly contingent upon Parliament agreeing to a court-based application system. In that event, the noble Baroness’s amendment would then exclude those making applications to the court from obtaining legal aid or legal help otherwise sourced from taxes, except indirectly through benefits. The framework for legal aid funding is set out in the Legal Aid, Sentencing and Punishment of Offenders Act, known colloquially as LASPO—an old friend of mine. The Committee should note that there are no primary provisions permitting the grant of legal aid outwith LASPO, so the noble Baroness’s amendment would present a novel approach to extending those provisions. The Government’s view is that, if the principle contained within this amendment is the will of Parliament, the mechanism for achieving this may need to be considered within LASPO in order for there to be legislative coherence.

There is a further point your Lordships should note in relation to the noble Baroness’s amendment. Hearings related to assisted dying, as proposed by this Bill, are not currently in scope for legal aid funding within LASPO. But LASPO does contain provision for exceptional case funding, which provides for legal aid in circumstances in which the ECHR requires an individual to be able to be legally represented. The Government’s view is that excluding assisted dying hearings from legal aid funding, including the exceptional case funding mechanism, as a matter of principle and without exception could lead to a breach of convention rights.

I return to the amendments in the name of the noble Lord, Lord Carlile. Amendment 426 requires the court to be satisfied beyond reasonable doubt, first, that the applicant has sufficient capacity and, secondly, that to refuse to make the order would amount to a

“breach of the relevant human rights law”.

The Government have one concern and one observation. The concern is that it is not clear what the relevant human rights law means in this context. Given that there is currently no right to an assisted death under the convention, as drafted this would mean that the test could never be met. If the amendment refers to other rights, for clarity the Government feel that they should be specified.

The observation is that, as your Lordships will be aware, the expression “beyond reasonable doubt” means that it is the criminal standard of proof that applies. Thus, unsurprisingly, it is in criminal proceedings that the highest standard is generally required. In civil law, the criminal standard is usually reserved for cases where the courts are imposing a punitive measure and the issue to be determined is a question of fact, including findings as to states of mind, such as intentional recklessness. It would be unusual for there to be a requirement that a judge be satisfied to the higher standard on questions of clinical opinion and breaches of legal rights. That said, it would be a policy decision for Parliament whether cases of this kind required the application of a higher standard.

Amendment 426B, in the name of the noble Baroness, Lady Coffey, would require the physical attendance of the applicant in court. It seems that this would exclude any person who is unable to attend the hearing from accessing an assisted death. For this reason, this amendment would, in the Government’s view, engage with Article 8, on the right to private life, and Article 14, on the prohibition of discrimination, and that restriction would have to be objectively and reasonably justified in order to comply with ECHR obligations.

I turn to eligibility, and Amendments 69 and 95 in the name of the noble Lord, Lord Carlile. The Government have a concern that Amendments 69 and 95 would create uncertainty in relation to eligibility for assistance. It might be difficult to prove that a disease could not be halted for a short time, even in cases in which the clinical opinion is that its return and progression is inevitable. There may be a risk that this could be seen as creating unprincipled distinctions in eligibility and could therefore give rise to legal challenge, for example on the basis that excluding certain people is not justified under Articles 2 or 8 of the European Convention on Human Rights, and/or amounts to unjustified discrimination under Article 14.

On court-based mental capacity assessments, Amendment 116 would remove the use of the Mental Capacity Act and propose a different and untested approach to capacity. As part of this, the court would be required to play a more direct, investigative role than is standard practice in capacity assessments. The Government are concerned that this could create confusion for practitioners who have experience in applying, and are trained to apply, the test under the Mental Capacity Act. Switching to this new approach might risk undermining the quality of capacity assessments. There might also be a risk that it would create unprincipled distinctions in capacity by excluding anyone with any impairment of the brain or mind, even if that would not affect their capacity under the Mental Capacity Act. It would be important to be able to justify the different approach to prevent discrimination under the convention.

Amendments 427, 428, 613 and 781 would introduce the concept of independent persons who would be required to carry out various functions. It is not clear from the proposed new clauses how these independent persons would work together to carry out these functions or resolve any disagreements between them, or how the skills and experience of each profession would align with their duties. For example, under the new clause as currently drafted, a solicitor might be responsible for the collection and transportation of the approved substance. It seems that the solicitor would then be required to report on medical matters, such as pronouncing the death of the person, without any requirement that they complete medical training. The Government also have a concern that, should medical help be needed as an unforeseen consequence of the self-administration procedure, Amendment 613 might create a risk, if that independent person had no medical qualifications.

Amendment 427 would require the lethal dosage of the approved substance to be ingested by the person accessing an assisted death. Giving the word its ordinary meaning, “ingested” would not include intravenous or injectable administration. Ingestion is generally understood to mean taking a substance into the body via the gastrointestinal tract: that is to say, via oral, nasogastric or gastronomy routes. The Government believe that this is how most doctors would understand the word “ingest”. The Committee may wish to note that this amendment as drafted might prevent clinicians proposing a more clinically appropriate mechanism for a particular person, such as intravenous or injectable self-administration, or might have the effect of excluding some patients from having an assisted death even though they might be capable of self-administration by other means.

There are additional drafting issues. At the beginning of my speech, I observed that if Parliament were to allow some of these amendments, they might require some redrafting to make them workable. I give Amendment 626 as an example. First, the word “form” and the expression “lethal dosage of drugs” would, in the Government’s view, need more clarity in order not to give rise to uncertainty when regulations are drafted. Secondly, the requirement to specify the exact composition of each dosage might also raise issues of liability, intellectual property and safety. Thirdly, it should also be noted that what constitutes a lethal dose may be patient specific, depending on factors such as weight, tolerance, the patient’s health status and other medication, so the drafting may need to make provision for this. The noble Lord, Lord Carlile, readily acknowledged that there are likely to be some drafting issues. I can confirm the Government’s position is that, while we are neutral on all the policy choices reflected in these amendments, as on the Bill as a whole, the Government would provide drafting support to ensure that any amendments passed by either House are legally workable and consistent and coherent with the statute book.

Finally, Amendment 67, in the name of the noble Baroness, Lady Grey-Thompson, would require the Family Division of the High Court to make an order confirming compliance with the Act before a person could be provided with assistance. This would be in addition to consideration given by an assisted dying review panel. The Government have one observation: the amendment does not set out how and when a person’s case would be referred to the High Court. The Government feel that further detail would be needed in the primary legislation to ensure that supporting procedure rules and practice directions would be adequate.

That brings to an end my observations on behalf of the Government in relation to the workability of the Bill. I have not addressed all clauses, but I have a few moments left. As I said I would, if the noble Baroness, Lady Nicholson, wishes to make her intervention, I will take it.

[Baroness Nicholson of Winterbourne (Con)]

I thank the Minister. I would appreciate if it would be considered at some moment that the two medical professionals on the panel may not have any knowledge of hearing issues. There is about one week of a medical professionals’ training on hearing, and that of course is almost nothing. Unfortunately, in the United Kingdom, about 20 million people have hearing defects, some large and some lesser. None the less, when people are dying or are very poorly, they find understanding considerably more difficult. I want that point to be brought in, and I will raise it in considerable detail at the right moment. I merely ask the Minister to take account of it at this time.

[Baroness Levitt (Lab)]

I am sure the Committee entirely endorses what the noble Baroness said in relation to the importance of those who are hearing impaired. I think that, in these circumstances, this is not a matter for the Government; it is a matter for the proposer of the amendment and for the sponsor of the Bill should it be passed. However, the point remains an important one.

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[Lord Falconer of Thoroton (Lab)]

The royal colleges are neutral on the principle. The Royal College of Psychiatrists has said that it is worried about the burden on psychiatrists, not by reference specifically to the panel—though it comes into what it says—but in relation to some of the capacity assessments it has made. I do not think it will be difficult to find, for the purposes of the panel, people who have the appropriate qualifications in psychiatry to sit on the panel. People who have had some experience and are maybe working part-time, for example, will be able to do it—so I am not concerned about the absence of people who could do it.

[Baroness Nicholson of Winterbourne (Con)]

Does the noble and learned Lord not accept that his particular panel make-up disregards deafness, which is probably the largest disability in the whole of the United Kingdom? Some 19 or 20 million people are deaf to different degrees. The issue is very underrepresented in this House, oddly enough, although a large number of Members suffer from deafness. It is also particularly badly treated in the National Health Service, as we have seen in the recent report that one in 1,000 babies is born deaf and the issue is not addressed as it should be. Why does he think his panel will be any better than the proposal by the noble Lord, Lord Carlile? Presumably a judge would consider every aspect of a patient before making any decision. I am concerned that this panel attitude is quite irrelevant to those of us who are deaf—nearly 20 million British people are deaf—and to the very large number of people who do not speak English.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I am not sure, particularly given the way in which the noble Baroness addressed the issue at the very end, that this is a point about panel versus judge. I would expect a judge to be experienced and able to deal with somebody who is deaf, and if they are not able to, they should be. Equally, I would expect a panel to deal with that in the same way. In all honesty, that was not a factor in determining whether panel or judge was better. Both would have to deal with that.

[Baroness Nicholson of Winterbourne (Con)]

My question was about deafness. There is no social work relevance to deafness. The noble and learned Lord’s panel is very specific.

[Lord Falconer of Thoroton (Lab)]

I hope I have given a satisfactory answer in relation to that.