Terminally Ill Adults (End of Life) Bill

Baroness Smith of Newnham Excerpts

Friday 14th November 2025 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I absolutely agree with the noble Lord, Lord Pannick. The noble Baroness, Lady Finlay, and I have worked together for many years, on many health issues, but I do not think she addressed the issue of why she wants to change the wording.

Given that we worked in 2005 on the Bill that actually put capacity into the legislation, I would be interested to know what her reasoning is. I think that is particularly important because the noble Baroness did not address the issue of choice. Of course, ability, capacity and choice are central to this Bill. I wonder why the committee whose report we have before us did not take any evidence at all from terminally ill people who need to make the choice in this matter. I think that was a grave mistake on its part and that if it had, that possibly would have led the noble Baroness to take a different view.

[Baroness Smith of Newnham (LD)]

My Lords, I was a member of the committee. The committee noted that we did not take evidence from terminally ill people. That was not a decision that we took as a committee. Suggestions were made and the clerks did not, in the end, manage to provide us with witnesses who were terminally ill, but it was not a decision that was formally taken. I agree that, had we taken evidence from—

[Lord Markham (Con)]

With due respect, I must say, as one of the committee members, that that point was put forward on a number of occasions. Unfortunately, there was a majority of people in the committee of seven to five against, by the way the nomination process worked, so it was the feeling of those members not to invite terminally ill people to speak. The minority of us who were in favour of the Bill tried on a number of occasions to hear them, but that was not allowed.

[Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)]

I remind your Lordships of the conventions of the House. An intervention on an intervention is not ideal. If we can follow normal conventions, that will be helpful.

[Baroness Smith of Newnham (LD)]

I thank the noble Baroness. I note that my former tutorial partner from Oxford was intervened on, or interrupted, for speaking for too long beyond 10 minutes. I shall endeavour still to be within 10 minutes despite having been doubly intervened on.

The report noted that the committee had not taken evidence from terminally ill people. I will leave it at that in terms of responding to the noble Baroness, Lady Thornton. However, we took evidence, as we were requested to do, on safeguarding and procedures, and, within the confines of a very brief committee, we took a wide range of evidence. Should we and could we have taken more? Absolutely, but within the confines of what we were able to do I think we did a job. I certainly did not at any point speak or vote against, or indeed take any view on, the idea that we should not take evidence from terminally ill people, so it is unfortunate that that has become a topic of debate.

The reason I rose to speak is that the question of capacity versus ability is hugely important. There are references throughout the Bill to the Mental Capacity Act, but to suggest that this one amendment is not appropriate is an unfortunate legal point. The amendment says that people should have the ability to make the decision, but “ability” reaches far beyond the narrow confines of the Mental Capacity Act. At various points in Committee, we will talk about capacity. The committee took evidence on capacity, and a key thing to bear in mind about the Mental Capacity Act is that it was never designed for a life or death decision. We need to be very clear as a Committee of the whole House and as parliamentarians—

[Lord Scriven (LD)]

The Mental Capacity Act is used in life and death issues in healthcare. If someone decides not to have care, the doctor has to ensure that that person has capacity to make that decision, so it is already used in that way.

[Baroness Smith of Newnham (LD)]

My Lords, I am grateful to my noble friend for pointing out that the Mental Capacity Act is used for life and death issues, but it certainly was not designed for assisted dying and I suggest that it is not a robust test for these particular purposes. If we are going to pass this legislation, we need to be sure that we have tests that are as robust as possible.

A particular point that we need to bear in mind is that the legislation was not drafted in the way that it is normally drafted; it was done in a way that was described as “on a shoestring”. It is surely up to your Lordships’ House and the other place to ensure that the provisions we have in place do not look as though they have been made on a shoestring. They need to be robust. Decisions about capacity can be taken at a moment in time. We need to ensure that the decision where someone says, “Yes, I think I want an assisted death”, is when they are at a later stage in their illness.

--- Later in debate ---

[Baroness Smith of Newnham (LD)]

I am indeed, which is why I think it needs to be clearly probed. If that is what your Lordships’ House and the other place intend, we should legislate for that, but I am not persuaded that all Members of this House and the other place will have the expertise that the noble Lord, Lord Pannick, has.

I have probably taken enough interventions for the moment. Others may accept being intervened on for a fifth or sixth time.

It was clear at Second Reading that some noble Lords who are in favour of this legislation want to support it and are open to it being amended, but others simply said, “This legislation is about assisted dying. The citizens of the UK want assisted dying. Therefore, we must support this legislation”. That would be a dereliction of our duty. We need to ensure that any legislation that is passed is robust and that, if noble Lords have passed it, they have probed the Mental Capacity Act and questions of capacity and ability, and that the legislation we get is robust and will stand the test of time.

Ability goes beyond capacity. This matters so much because the simple choice between an assisted death and not an assisted death is not so straightforward. The reason I wanted to speak, and I will come back to this in subsequent groups, was to refer to some of the evidence we took. Evidence-giver after evidence-giver said, “If we are going to have assisted dying”—whether or not they were in favour—“we need to have better palliative care than we have at the moment”.

The Bill, if it goes through, will say that people have to be told their choice between the palliative care available to them and other options. There is a gross inequity in palliative care availability in this country. For some people, there might be a genuine choice between getting the care they could have or an assisted death, and they may get to the point of saying, “The care still is not enough”. In many parts of the country, though, people are not being offered that palliative care, and if we do not make it available, we are potentially creating legislation that causes people not to have the choice that some noble Lords are so passionately advocating for but rather to make constrained choices because the health service is not giving them what they need. So a broader discussion about ability has merits. That is not to cut across the debate about the need for capacity, which will come up at various points in Committee.

[Lord Winston (Lab)]

My Lords, as a member of the Select Committee that the noble Baroness has just referred to, I think she ought to refrain from criticising something that the committee either said or thought. We merely took evidence. As we will see in the report, we did not make those observations personally.