Terminally Ill Adults (End of Life) Bill

Baroness Noakes Excerpts

Friday 14th November 2025 Lords Chamber

[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.

[Baroness Cass (CB)]

My Lords, I declare my interests as trustee of a children’s hospice. I also talk as a retired doctor with experience of looking after terminally ill adults and children. However, I also talk as somebody who is pretty familiar with conflict and polarisation, having been attacked and undermined on social media. I know that everyone in this Committee is committed to improving this Bill, and so I was somewhat dismayed by the article in the Times, which I felt led to the targeting, unfairly, of some of my noble friends who have been committed to improving this Bill and have been working hard to do so. I am not sure what the objective of that was, but it is regrettable.

People have asked about ability per se, so I talk now as a developmental paediatrician. We generally talk about abilities as skills that we acquire, whether it is a baby learning to walk or talk, or other skills that are more sophisticated. The skill that allows us to make reasoned judgment is the development of what is called the executive function—I am sure that noble Lords are all aware of that. That sits in the frontal lobe of our brains. As we well know, teenagers are pretty ill developed in that respect: they can talk with great authority about why it is extremely dangerous to drive too fast and break the speed limits and be very convincing on how they understand that and then, the next day, do exactly that, particularly under peer pressure. That judgment is something that develops but can also be lost, as we well understand, when somebody sustains a head injury or maybe has a brain metastasis that impacts that area, or during dementia; our judgment deteriorates.

The word “ability” allows us to think about people who might never develop that ability because of a problem in executive function, which is common in some people with autism. They may be well able to repeat what they have read online or heard from peers, but they have not fully understood and processed it. Some people with autism are of course well able to make those judgments and some are not: it is complicated, as my noble and learned friend pointed out, and there is perhaps an unwarranted confidence in doctors’ abilities to do that. It is very much a multidisciplinary team effort and one that requires somebody who knows the person well, or maybe multiple assessments. This is complex and “ability” encompasses a wider facet than capacity alone.