Terminally Ill Adults (End of Life) Bill

Lord Empey Excerpts

Friday 14th November 2025 Lords Chamber

As I said at the beginning of my remarks, I am not yet convinced that the amendment in the name of the noble Baroness, Lady Coffey, is the right way to address this gap, but gap there is. Unless the Government come forward with a clear proposal that addresses the concerns expressed by the First Minister of Wales, the Senedd, both the Senedd Select Committees, the leader of Plaid Cymru and in Committee in the other place, we risk doing real damage to the devolution settlement and to confidence in the capacity of Westminster to legislate in this area, and doing real injustice to those in Wales, who deserve better palliative care and better mental health care than would be the case if this legislation were to pass as it stands.

[Lord Empey (UUP)]

My Lords, the noble and learned Lord, Lord Thomas, said that some people were suffering from insomnia. I think this House is suffering from collective amnesia. All of a sudden there is a great hurrah about the Sewel convention and respecting devolution. I gently remind this House that it had no hesitation whatever in legislating over the heads of the Northern Ireland Assembly against the expressed wishes of that Assembly on abortion, for instance, and on other matters. So, if we have suddenly decided that we are going to respect these settlements, it is a Damascene conversion, and I hope that it is perfectly obvious that there are huge holes in where this legislation is taking us, as has just been ably pointed out by the noble Lord, Lord Gove. Like him, I leave it open as to whether this is the right amendment, but I just gently remind everybody that we in this House are not scoring very high on consistency.

[Lord Tyrie (Non-Afl)]

I will be brief—everybody will be delighted to hear that. I should say that I am a supporter of the intentions of the Bill, and I agree with what the noble and learned Lord, Lord Thomas, said, particularly when he suggested that the Government will need to be involved in sorting out some of these problems.

What concerns me is that we are now going to try to improve a Bill, which is demonstrably flawed, with 900 amendments—many of which seem to make sense to me—on the Floor of the House between now and Christmas. Surely the Government should now be listening, and grasping that they need to take the Bill in themselves. They need to consult nationally and widely, to try to find as much consensus as possible, and then in a considered way they need to come back to the House. To attempt to deal with these 900 amendments in this way will end up with the Bill being talked out, with us being in a place we do not want to be—at least those of us who want to see progress on the Bill—and we will end up in a worse place than we would have been had the Government done the sensible thing at the beginning and taken the Bill in, as they did with Private Members’ Bills such as the Suicide Act.

--- Later in debate ---

[Lord Gove (Con)]

My Lords, I speak briefly in support of the point made by the noble Baroness. I entirely understand why many Members of the Committee regard the suggestion to replace “capacity” with “ability” as wholly inadequate. The challenge that has been made by my noble friend Lord Markham and others is entirely fair enough, but the definition of “capacity” in the Bill itself is inadequate.

It is the case that the Mental Capacity Act was not designed for this purpose and that this legislation has been retrofitted to use the Mental Capacity Act because inadequate effort was put into defining the ability of an individual to make this decision in an appropriate way. It is the case that the Office of the Parliamentary Counsel has made it clear that the effort to put this Bill together was “done on a shoestring”. It is also clear, as the noble Baroness pointed out, that the Royal College of Psychiatrists—the people who are responsible for addressing mental capacity—said that assessing a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding than assessing capacity for treatment decisions, which is the purpose of the MCA.

We have been told by those responsible for the mental health of vulnerable people that the safeguard that we are about to legislate for is inadequate. More people will be placed at risk by its inadequacy. We may feel that the noble Baroness, Lady Finlay, in putting forward “ability”, is failing to meet the needs of the legislation. However, it is not her responsibility, but our collective responsibility, the promoter of the Bill’s responsibility and the Government’s responsibility to ensure that psychiatrists and this House can be satisfied that the threshold is sufficiently high.

We all recognise that, while this Bill may be about respecting personal autonomy, personal autonomy is not sovereign. We recognise that there may be circumstances in which that right cannot and should not be exercised. The promoters of the Bill have been very clear that they want to draw the lines narrowly to ensure that this is available only to people who are consciously capable at a time when their life will automatically end within a certain period.

[Lord Empey (UUP)]

Does the noble Lord agree with me that one of the issues, which has been sporadically mentioned, is the inconsistency of capacity or ability brought about by the interaction of certain drugs on an individual? They may be lucid at a particular point in time, but not lucid at another. Under our current proposals, the people who would be making that judgment do not even have to know or to have treated that person. Surely that has to be dealt with in any definition.

[Lord Gove (Con)]

The noble Lord is absolutely right. Again, there has been some debate about the evidence from psychiatrists and the reasons why they expressed doubts, but that evidence is plentifully available to Members of this House.

As a number of Members have made clear, the work of Alex Ruck Keene KC and the Complex Life and Death Decisions group of King’s College, which is available to this House and was examined in the Select Committee, makes it clear that the Mental Capacity Act is inadequate. It is inadequate to deal with the concept of suicidal ideation that occurs. It is inadequate to deal with the fact that capacity fluctuates, and that fluctuation can be affected by mental health and well-being in its broadest sense, as well as by other syndromes and conditions.

The psychiatrists would not have intervened as they did if they had felt that this was a matter that could be left to one side, a matter that was entirely, as it were, within the scope of parliamentarians or legislators to shrug their shoulders and to accept. They have sent a message to us that the Bill as framed endangers those who are most vulnerable. Can we really proceed on the basis of the MCA, a piece of legislation conceived at a different time for a different purpose and rendered in the eyes of the professionals as not the correct way to go forward?