Terminally Ill Adults (End of Life) Bill
Debate between Lord Blencathra and Lord Falconer of Thoroton
Lord Blencathra (Con)
My Lords, I will move my Amendment 39A and speak to my Amendments 238B and 553G. The purpose of Amendment 39A is to require that the patient’s understanding is demonstrable, not assumed.
Before I continue, I wish to thank the Chief Whip for his very wise decision to have a 40-minute lunch break but, as the average age of this House is 71, it was more like a loo break. It was very convenient, whatever it was. I move on to the subject of the amendment.
This amendment goes to the heart of autonomy. The Bill repeatedly invokes autonomy as its moral foundation, yet it does not require that the patient’s understanding be demonstrated. In every other area of medicine, informed consent requires evidence that the patient has actually understood the information. Here, where the outcome is irreversible, the evidential threshold should be higher, not lower.
The Bill currently requires doctors to “explain” and “discuss” certain matters, but it nowhere requires confirmation that the patient has absorbed or understood them. That is a fundamental flaw. NICE guidance, GMC guidance and the Montgomery judgment all emphasise that consent is valid only when the patient understands material risks, uncertainties and alternatives. The Bill omits these requirements.
International comparators—Oregon, California and Victoria—all require explicit discussion of risks and complications. England and Wales would be an outlier if we did not require demonstrable understanding. This amendment simply aligns the Bill with established medical ethics and legal precedent.
My final point on this amendment is that it protects clinicians. Without a demonstrable understanding requirement, a doctor could comply with the Act while failing to meet professional standards. That is a recipe for litigation, confusion and moral hazard.
My Amendment 238B would introduce a safeguard that is standard in every jurisdiction where assisted suicide is legal. A written acknowledgement would ensure that the patient has been informed of the risks— including prolonged dying, vomiting, seizure or failure of the drugs—and that they understand them. Without this, the Bill creates a parallel medical system where the usual rules of consent simply do not apply.
The Bill currently requires doctors to discuss
“the nature of the substance”
and what to do in the event of “complications”, but it does not require doctors to explain that complications may occur or what they are. That is a glaring omission. A patient cannot meaningfully consent to a life-ending drug without knowing that it may not work as intended.
Those noble Lords who have experienced cancer treatment or chemotherapy know that, before one gets it, one has to spend about an hour with a clinician or the oncologist ticking boxes on a form, explaining and saying that they understand all the potential downsides. I recall having to complete a seven-page form to do so. It is important that patients consent.
This amendment would also protect clinicians. The Bill grants civil liability exemptions for doctors acting in good faith but, without a written acknowledgement, there is no evidential record that the patient was informed of the risks. This exposes clinicians to professional risk and undermines public trust. Finally, this amendment is modest, proportionate and entirely consistent with the principle of autonomy.
I turn to my Amendment 553G, which is a Montgomery compliance clause. It would require doctors to apply the principles of Montgomery v Lanarkshire when informing patients of material risks. The amendment would embed that leading case on informed consent into the Bill. Montgomery requires doctors to inform patients of material risks and reasonable alternatives. The Bill does not currently require this. That omission is extraordinary in a process that ends in death. Without this amendment, the Bill creates a parallel medical system where the usual rules of consent do not apply. That is ethically indefensible. If anything, the standard should be higher than in ordinary medicine, not lower. This amendment would also protect clinicians by ensuring they are not forced to choose between complying with the Act and complying with their professional obligations. Finally, I believe that this amendment would align the Bill with international best practice.
These three amendments together would make the policy clearer, leaner and fairer. By tightening rules and strengthening enforcement, amendment 1 would remove ambiguity and speed decisions, reducing disputes and legal exposure. My amendment 2 would lower operational friction and cost by streamlining processes and clarifying responsibilities, which would improve efficiency and predictability during implementation. My third amendment would enhance fairness and future readiness by embedding equitable principles and scalable mechanisms, increasing stakeholder buy-in and adaptability as circumstances evolve. The result would be a more enforceable, cost-effective framework that better serves stakeholders today while remaining flexible for tomorrow. These amendments are practical, complementary—
Lord Falconer of Thoroton (Lab)
The noble Lord referred to amendment 1, amendment 2 and amendment 3. I apologise, but I did not know which his amendment 2 was.
Lord Blencathra (Con)
I realise that I should not have said that. When I spoke to my amendment 1, I meant Amendment 39A. I shall rephrase that: my Amendment 39A would remove ambiguity and speed decisions; my Amendment 238B would lower operational friction and costs by streamlining processes; and my Amendment 553G would enhance fairness and future readiness by embedding equitable principles and scalable mechanisms, et cetera. I believe that those three amendments would result in a more enforceable, cost-effective framework that would better serve stakeholders today while remaining flexible for tomorrow. The amendments are practical, complementary and strategically aligned to deliver measurable improvements in performance, compliance and stakeholder confidence. I commend them to the Committee and to the noble and learned Lord, Lord Falconer of Thoroton. I beg to move.
Lord Blencathra (Con)
This has been another interesting debate. Possibly more important than the speeches that we all made at the beginning has been the last 40 minutes of real debate and interchange with the noble and learned Lord. I am left with the feeling that many colleagues in the Committee feel that there are a lot of unanswered questions and some uncertainties that we may need to return to.
However, I will follow the instructions of the Companion and the Government Whips, and I will not seek to respond in any detail to the many good points raised by noble Lords. I merely wish to remind the Committee that in the debate we heard from the noble Baronesses, Lady Coffey, Lady Lawlor, Lady Hollins, Lady Berridge, Lady Finlay of Llandaff and Lady O’Loan. We also heard from the noble Lords, Lord Empey, Lord Harper, Lord McCrea, Lord Carlile of Berriew, Lord Wilson of Tredegar and Lord Mawson. What they all had in common was that they were deeply concerned that the definition of informed consent is not strong enough in the Bill and something more needs to be added.
I think that the noble and learned Lord relied on Clause 12(2)(c)(iv). The doctors have to discuss
“the nature of the substance that is to be provided”
and, in Clause 12(2)(d),
“discuss with the person their wishes in the event of complications”.
However, there is nothing in there to say that they have to discuss the complications with them or the possible side effects. The noble and learned Lord may pick me up on this if I put the wrong words into his mouth, but I think that he said that explaining the nature of the substance could possibly—I think that he used that word—include discussing the possibility of complications and side effects.
Lord Falconer of Thoroton (Lab)
If the noble Lord is suggesting that I said “possibly”, meaning that you might have to say what the complications were, if there were complications or the threat of complications, I did not say that. I said that if there was the prospect of complications, you would have to say.
Lord Blencathra (Con)
I think that I will have to check the record, as I firmly remember the noble and learned Lord using the word “possible”; it will be “possible” to discuss this. I think that most noble Lords who have spoken do not want the possibility of it being discussed but the certainty of it being discussed, and that may require an amendment to this part of the Bill.
Many noble Lords made the point that you cannot get any NHS treatment or any medical treatment these days unless the doctor takes elaborate steps to explain the consequences, the downsides and things that could possibly go wrong. That extends through all aspects of health. Two days ago, I went down Victoria Street to buy a packet of Night Nurse in Boots. I was interrogated: “Have you taken this medication before, are you taking other medication with it, are you aware it can make you drowsy?”—they were practically asking, “Are you going to fly a jet plane after this?” It goes to that extent in selling drugs. Noble Lords were concerned that, when people are getting treatment to help cure them, they get every single thing explained, but they would not get it explained to them in detail if it is a treatment to kill them.
Some may say, “What does it matter? If you’re going to take a drug that will kill you, why do you need to know the side-effects?” Well, you do not need to know the long-term side-effects, of course, but you do need to know any side-effects the drugs may have. As the noble Lord, Lord Goddard, said, NICE guidelines say that no drug can be supplied unless it is approved by NICE. But NICE approves drugs to treat you; it does not approve a lethal dose. We have seen in the United States death row places where people are given a cocktail of drugs. In the old days, it was straightforward: it was a drug that could kill you. Now, they are given drugs that, taken individually, can help your life, but, when given in combination to put someone to sleep, slow the heart and all the other things, those cocktails eventually kill them. We have heard horrendous stories of the cocktails not working and the person waking up. Noble Lords have raised questions about what would happen if a patient who is given a lethal cocktail or drug wakes up; we just do not know what the consequences would be.
Lord Falconer of Thoroton (Lab)
My Lords, I am grateful for how this has been dealt with. We have discussed this a lot, at Second Reading and in Committee. I have made clear that, while suffering may very often be the cause of somebody wanting an assisted death, it is not the trigger for it as a legal requirement. Why people want to end their life in the context of a terminal illness is for them to decide. The effect of these amendments is that a person is entitled to an assisted death only if the reasons for them wanting the assisted death are the symptoms, suffering or prognosis of the terminal illness. I am not in favour of inquiring as to precisely what is the cause. Severe misery may well be the cause in the context of a terminal illness. In my view, this provision would unduly limit the entitlement to an assisted death, so I am against these amendments because they go right against the principle of the Bill.
Lord Blencathra (Con)
My Lords, I think that the noble and learned Lord is utterly wrong in his last pronouncement. Misery should not be a reason for an assisted death. The misery might be able to be removed. At Second Reading, my noble friend Lord Moylan stated that many people do not actually want to die; they want the things that are causing the feeling to be removed. They want better housing, they want better relationships with their family, they wish their love life was better or they want out of total misery. The noble and learned Lord is utterly wrong in seeming to extend the reason for dying beyond the severity of the terminal illness.
We will probably discuss this better and in more detail in the next group of amendments, so I beg leave to withdraw my amendment.