Terminally Ill Adults (End of Life) Bill

Lord Ashcombe Excerpts

Friday 5th December 2025 Lords Chamber

The particular problems that the provisions of the Bill present for decisions relating to the capacity of young people with eating disorders will be discussed in future groups. But there is an age-related aspect that we should note here, because we are likely to find that it is impossible to find drafting amendments to capacity provisions that will mitigate or solve the problem. These disorders most commonly begin in the mid to late teens. For those who recover from them—which is, sadly, not all, but many do—recovery typically takes seven to 10 years, so by their mid-20s, most people who are going to recover from anorexia have done so. This simple increase in the minimum age may well be the most pragmatic and effective adjustment to mitigate a serious risk. For all those reasons, I support the amendments in the name of the noble Baroness, Lady Berger.

[Lord Ashcombe (Con)]

My Lords, I take noble Lords back to when they were young; we have all been there. I suspect that we all remember the odd and what may now seem very troubling ideas that sometimes passed through our minds during those years. Many of us have also watched our children—and for some of us, I dare say, grandchildren, though I am not there yet—navigate that turbulent stage of life. These formative years are full of experimentation, confusion and growth. They are not the years in which irreversible decisions should be entertained. Therefore, I am very much in favour of increasing the age limit to 25, as the noble Baroness, Lady Berger, suggests.

[Lord Markham (Con)]

My Lords, this has been a really good discussion showing the range of views and expert opinion that we have here. I think I heard from the noble and learned Lord, Lord Falconer, that he was willing to look at the age question. I think he said that he was more likely to add safeguards—

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[Baroness Berridge (Con)]

I will speak briefly to raise attention to Amendment 170, which has recently been added to the group. In an effort to short-circuit, we will come to the issues of interpreters much later on.

I have laid Amendment 174, which quite simply says that an interpreter must be over the age of 18. It will not surprise the noble Baroness, Lady Merron, that I have a whole cluster of amendments to deal with what may be inadvertent situations that are not covered off for under-18s. I invite the noble and learned Lord to look at that amendment to see whether it can swiftly be clarified and dealt with, along with the others that relate to children.

In this group, I will also speak to the noble and learned Lord’s Amendments 332, 417 to 419 and 425, which I believe are a genuine attempt to deal with the report from the Delegated Powers and Regulatory Reform Committee. It advised the sponsor of the Bill to remove the Clause 15 power and to align the other clauses, because there were inconsistent wordings. I want to reiterate that reassurance was given in the other place that there would be one second opinion by another doctor. This goes back to the noble and learned Lord’s opener: when we talk about “cannot”, we need to cover that off in the Bill. The Bill was covering death or illness—obvious situations where the function cannot be fulfilled—but “will not” is obviously a different scenario.

Unless the doctor is unable to perform that function, for whatever reason, if we do not stick to the word “cannot”, we will potentially get the opening up of the ability to choose a number of doctors and maybe having some kind of discussion. Then they may not want to act, which may be for the reasons outlined by the noble Baronesses, Lady O’Loan and Lady Goudie. Then we might have a number of assessments or discussions that do not become a formal refusal which is then documented. I do not think the noble and learned Lord intended, by changing Clauses 10 and 13, to broaden the scenarios where a further referral could be made to any situation in which the doctor is unable or unwilling to continue; I think this has happened inadvertently. I know that my noble friend Lord Harper has laid amendments regarding particular scenarios beyond “death” and “illness”, and I think that the Minister in the other place, Mr Kinnock, mentioned family circumstances or emergencies. Perhaps the way ahead here—I am trying to pre-empt a further group, when we get to it—is that we could have a clause that outlines more circumstances than the two that are in the Bill.

Obviously, as lawyers, we know we can never cover every circumstance that would justify a doctor saying, “I can’t do this function any more”, not “I won’t”. Perhaps there could be a system whereby a doctor who wants to withdraw, and his or her circumstances are not in the paragraphs, should have to go to the panel and say, “I’ve got a situation that isn’t within the framework of the legislation, but I can’t for these reasons perform that function”. So I hope the noble and learned Lord will not move those amendments, as he has promised, but we could come back to this in the group that deals substantively with exploring scenarios where the doctor cannot act.

[Lord Ashcombe (Con)]

My Lords, I wish to express my particular concern regarding Amendment 416. The question I must put to the noble and learned Lord is, why should an independent doctor tasked with providing a second opinion not have access to the notes of the first? Is the intention to prevent any influence on the second medical professional, even when the first has identified grounds for dissatisfaction and declined to proceed with the possibility of assisted death?

We have already engaged in lengthy debates on the crucial matters of decision-making capacity and the risks of coercion. What if the first independent doctor had uncovered evidence of precisely such concerns? This situation inevitably calls to mind the troubling prospect that a patient, or indeed another party exerting influence upon that patient, might seek out a doctor willing to endorse the view of the co-ordinating physician. Surely the medical notes generated throughout the process are of fundamental importance to all involved in the medical profession, and it cannot be right that they should be withheld from any participant in the decision-making claim. I therefore earnestly ask the noble and learned Lord to give me his thoughts on this, as I do not really consider this to be a straight drafting issue.

[Baroness Lawlor (Con)]

My Lords, I would like to refer to Amendment 6 from the noble and learned Lord the sponsor of the Bill, because I have concerns with it. In inserting the words

“has a preliminary discussion with a registered medical practitioner”,

Amendment 6, which is described as a drafting change, adds to the uncertainty about what discussion takes place with the patient and when. It is a dangerous uncertainty as, if the Bill was so amended, it would be left open for one or more such discussions to take place before the person is 18, so long as the discussion that is required as a preliminary discussion takes place after the person has reached 18.

In particular, the amendment would do nothing to restrict the scope of Clause 5(3), which permits a medical practitioner to engage in preliminary discussion about assisted dying with a patient who raises the subject. Since there is nothing to tie the discussion referred to as “a preliminary discussion” to be inserted in Clause 1 with “a preliminary discussion” in Clause 5(3), the amendment will not stop these discussions taking place with under-18s.

Grammatically, a “such and such” refers to any “such and such”, and the word “preliminary” does not imply a restriction on number; there could be one or 100 preliminary discussions. Although Clause 5(3) does not oblige the registered medical practitioner to discuss assisted dying under the Bill’s provisions with any patient who raises it, Clause 5(6) obliges the practitioner concerned to direct the patient to

“where they can … have the preliminary discussion”—

and that is the preliminary discussion. Therefore, even as amended, the Bill requires that any patient, whatever their age, who raises the possibility of assisted dying under the Bill is enabled to have a discussion about it. It cannot be objected that in Clause 5(6), the reference is to “the”, not “a”, preliminary discussion, since here “the” refers back to the preliminary discussion in Clause 5(3) to Clause 5(5), where the phrase used is “a preliminary discussion” or “such a preliminary discussion”—that is to say, any preliminary discussion of the matter.

These points may seem technical and pernickety, but consider how the Bill, even as amended, might lead a young person to end their life prematurely without proper adult consideration of the matter. Take a 16 or 17-year old who is suffering from a disease that makes their life expectancy uncertain, or who has been warned that they might die rapidly or deteriorate and die at any time. We may all try to imagine, but we can hardly know how such a young person might feel: isolated, lonely, afraid, and perhaps hypersensitive to remarks or innuendo, real or imagined, or indeed to some of what we have heard today about social media and pressures from peer groups in the Netherlands. They might share not only the worries about the illness, but the normal doubts of people of that age that even those in the best health who are depressed and unsure of themselves have. How easy for the unfortunate young person to say, “I wish I were dead”.

Terminally Ill Adults (End of Life) Bill

Lord Ashcombe Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

[Lord Goodman of Wycombe (Con)]

My Lords, I will be extremely brief. Rather than speak to my own Amendment 229, I simply suggest to the Committee that the bulk of the evidence we heard in the Select Committee suggests that the amendments that have been put forward and debated in this group are extremely important and essential. I will quote very briefly from the Select Committee’s report before sitting down. The Royal College of Psychiatrists said that every applicant should be

“holistically assessed at the stage of preliminary discussion, including for mental health need”.

Dr Luke Geoghegan, of the British Association of Social Workers, took the view that

“all applicants should have a safeguarding assessment”.

The British Geriatrics Society recommended in its evidence to us

“a requirement for all people requesting an assisted death to undergo a holistic assessment of needs”.

The next group of witnesses that produced a similar view was Standing Together Against Domestic Abuse, which called for a multidisciplinary assessment framework.

I could go on, but I recommend to the noble and learned Lord, Lord Falconer, when he replies to the debate, to take these points on. A central question in this debate, posed by the noble Lord, Lord Pannick, has been: are the protections in the Bill better than the protections we have at the moment? I suggest to the Committee that that is not the question. The question is not, are the protections better than those we have at the moment, but are they as good as they could be? The answer in many cases is that they are not, and I hope that the noble and learned Lord takes these points on board when he replies to the debate.

[Lord Ashcombe (Con)]

My Lords, I just want to raise one point. We have heard an awful lot today, but I very much support what my noble friend Lady Berridge and the noble Baroness, Lady Rafferty, have just said about training. I do not believe a doctor, or any form of medical practitioner, can spot coercion with one discussion. Training in this area is absolutely imperative to have any way of making it work reasonably. That has to be part of the overall solution to this problem.

I will just add that, while I support every one of these amendments to a greater or lesser extent, I hope that the noble and learned Lord, Lord Falconer, will consider them all very closely and not ignore them.

[Baroness Coffey (Con)]

My Lords, I have tabled Amendments 47 and 49. It should be no surprise to noble Lords that this group is going to take some time, because it is probably one of the most important elements of our consideration of the Bill.

I also gently point out that it feels like coercion is being applied, but I am not going to be bullied by people into not raising my concerns at this point. I point out that it is the Department of Health and Social Care that proposed the groupings, and I believe it was passed by the sponsor. Therefore, we have had over 18 amendments from 14 people grouped together. If the concern is that we are taking too long with big groups, that will actually encourage people like me to degroup even further. That is not necessarily fruitful in addressing some of the concerns of the Bill, when we need some joined-up conversations.

The noble Lord, Lord Pannick, and the noble Baroness, Lady Hayter, have talked about existing safeguards. There is an obvious one at the moment: it is against the law to help somebody to go to Dignitas. The person who wrote the guidelines on whether to press charges is of course now the Prime Minister. There are amendments made in Committee that reinstate the element of the DPP undertaking that.

In answer to questions that I tabled to the Government, the Justice Minister fortunately replied, basically indicating how many people had had proceedings against them. On average it was one a year for the last decade, and only two people have been convicted. But I am still waiting to hear about the arrests and charges made, never mind the proceedings. I will give an example. Sean Davison, who was in the papers in the summer, was arrested for helping 29 people take their own lives by going to Switzerland—not to Dignitas but to another place. This is the same man—he is well known—who had already been convicted of helping his own mother take her life, which was against the law, in a different country and jurisdiction. This is why I was interested in tabling questions: to understand what is actually going on.

The figures of people going to Switzerland are quite small—it is about 40 people. One of the things that worries me—and, I think, worries a lot of people—is how this whole situation could start to become commonplace. The Liverpool care pathway became commonplace—what a horrible way to die. I specifically mentioned at Second Reading that my greatest concern of all is indirect coercion. I appreciate that some other noble Lords have already spoken to this, so I hope to bring a slightly different angle with some of my concerns.

If I have time, I will try to explain why I strongly support several of the other words being used, particularly “encouragement”, which appeared in the speech by the noble Baroness, Lady Fox of Buckley, and got support in certain parts of the Committee. That is interesting, bearing in mind that the campaign group Dignity in Dying, anticipating the passage of the Bill, has now initiated a new element by creating a conversation guide on how to start to bring up assisted dying in conversations with people. Never mind the coercion that very obviously exists in the medical profession in trying to coerce people into “do not resuscitate” orders. That is already happening in our medical system today, which is why several Peers, I think, are generally worried.

Turning to my amendments, I will start with Amendment 49. As the proposer and sponsor of the Bill put forward, it started off as a judge-led process, which is why I support what the noble Lord, Lord Carlile of Berriew, seeks to do in amendments in later groups. We have a situation here where this is turning into a sort of commissioner/panel. We need to make sure that the legislation is as simple as possible to the ordinary man and woman on the street. I appreciate that there are some legal niceties about what the word “person” means in law—I believe it can mean almost anybody—but we need to be more explicit, which is why I have suggested talking about

“body corporate, institution or organisation”.

I hope that might start to cover some of the online issues that my noble friend Lady Berridge raised; I do not know whether the Online Safety Act can cover this.

I respect what some noble Lords may think: “What is she going on about? These people are dying anyway. We have the general approach of trying to prevent suicide, so what would be different in hastening that?” This is where I turn to Amendment 47, which talks about both external and internal coercion. We have had a considerable debate about external coercion, with some suggestions about that in the amendments, as well as, to some extent, the question of burden. It is that burden that genuinely worries me.

The evidence is clear. We have already heard of the 35% figure from, I think, Western Australia. Whether it is from Oregon, Canada, Western Australia or Washington, the jurisdictions that collect data on this issue show that between 35% and 59% of people cite being a burden. We then heard evidence given to the Commons from Professor Owen, who said that thinking about being a burden is

“an essential question. I work clinically in the over-65 age group, where there is a lot of terminal illness, some of it in the last six months. You have to understand the population … There can be a terminal illness, very typically with comorbidity. That comorbidity is often mental health comorbidity”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 30/1/25; col. 234.]

As Dr Price sensibly said, for somebody who has found out that they have a terminal illness and less than 12 months or six months to live, it would be surprising if there was not an element of depression at that point.

This is where we get into talking about burden. That is where a group already feels burdened, and some of that may be excessive. That is when you start to get into some of these interpersonal pressures. It is also where the impairments will start to interact and amplify each other, and that in itself can have an important consequence in terms of the functional ability of mental capacity. According to Professor Owen, outside the AD context, the Court of Protection itself has been struggling to recognise that. This is where trying to get some understanding of this is really important. But it is not, to the point from the noble Baroness, Lady Rafferty, somewhere where you can just have a ready-built training manual.

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[Lord Falconer of Thoroton (Lab)]

In relation to the multidisciplinary team, Amendment 222 from the noble Baroness, Lady Hollins, is a bit close to that but not quite there. On the question of encouragement, of course, the reason why the DPP’s guidelines refer to encouragement is that the criminal offence at the moment is encouraging suicide, and that deals with a completely different concept.

May I go on into Amendment 50—

[Lord Ashcombe (Con)]

I would like to go back to our noble colleague from Yorkshire—I am afraid I do not know the noble Lord’s name and I apologise. He talked about working in the communities in the East End. We are short of GPs as it is, and most of our GPs come from an Anglo-Saxon background still. The noble Lord referred to the fact that, having worked with this community for a very long time, he still could not necessarily read the situation. I wonder how we deal with that, because the GPs in that community may not have had the length of time that he had to assess these situations.

Terminally Ill Adults (End of Life) Bill

Lord Ashcombe Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

I say to the noble and learned Lord, Lord Falconer, that this debate has shown that perfectly reasonable people find a difficulty in understanding “ability” and “capability” as the same thing. If they are not the same thing, those people will want something to ensure that the narrowness of “capability” does not mean that people make decisions when they do not have the ability to do so.

[Lord Ashcombe (Con)]

My Lords, I speak definitely not as a lawyer or as part of the medical profession in any way. It appears to me that the Mental Capacity Act uses the balance of probabilities when making a decision, rather than “beyond reasonable doubt” as, in my understanding, the criminal court does. For such a definite decision as whether to end your life, the balance of probabilities is insufficient. Therefore, is the current definition of capacity in the Act sufficient for this job? I suspect not. Is “ability” the right word? I am not sure. Somewhere along this line, to the point made by my noble friend Lord Deben, there is an answer, and maybe two words is right.

[Lord Rook (Lab)]

My Lords, I will keep this brief. I was not going to share this at this point because it is quite personal and because it takes a lot for me to counter the noble Baroness, Lady Andrews, for whom I have huge respect. She was the first person to invite me to the House of Lords for tea, many years ago. I do not doubt that the Mental Capacity Act has been a huge advance in how we deal with these issues.

I accept that the noble and learned Baroness, Lady Butler-Sloss, is probably one of the few people in this place to make judgments in the courts and the Court of Appeal on mental capacity. I suspect that more of us have had to go through the process of helping a loved one through a mental capacity assessment, although I suspect that number is also still low. My father has dementia. I have had to support him through a mental capacity assessment. No matter how clear the Act or various legislations or definitions may be on paper, it is extremely difficult at times to take someone through that process. All he had to do was prove that he had capacity to instruct a solicitor, a decision far less serious and far less terminal than the one we are discussing today.

If you assessed my father’s capacity, you would find—on the comments made by the noble Baroness, Lady Hollins, about literacy and numeracy—that my father has near-perfect literacy and numeracy. We have had comments about executive function. You would find that he has near-perfect capacity for executive function to make important decisions. You would also find that he has virtually no short-term memory. He is more than capable of making a decision, but that decision is gone in 30 seconds—sometimes sooner. If you apply that to this situation, he would be able to make a decision but would not know about it at the point that decision was acted upon.

Returning to the comment from the noble and learned Baroness, Lady Butler-Sloss, about whether it is capacity or ability, I pick up on the comments from the other side of the Committee recently. There is not enough, in the way we judge capacity at the moment, to make this practicable and desirable. We certainly need more. I am not sure whether it is “ability”, but what we have at the moment is not enough to deal with this in practice.