Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berger

Committee stage
Friday 6th February 2026 Lords Chamber

[Baroness Berger (Lab)]

I endeavoured to keep my remarks brief, and I believe I did so, taking under five minutes. The point of the amendments is very specific, around eligibility, which we had not discussed. We talked more broadly about the concerns around the Mental Capacity Act, but not specifically in the context of capacity. Obviously, we listened closely to the sponsor of the Bill’s response to the earlier debate, and the point raised in these amendments was not in any way addressed. These are additional points, beyond the principle and the wider concerns about people who are under deprivation of liberty and those who will be considered under the Mental Capacity Act. Clearly, we have listened to the experts, who have raised many concerns about the Mental Capacity Act, but the purpose of these amendments is to address eligibility.

I hope that the sponsor of the Bill will give us some more colour and detail about amendments he might come forward with on Report. But we have been in Committee since the middle of November, and in the absence of anything so far coming forward from the sponsor on the Mental Capacity Act and deprivation of liberty safeguards—I think this speaks to the concerns of many in this House—we are therefore compelled to bring forward these amendments to raise these issues. If something did come forward, that might enable us to withdraw future groups of amendments altogether, and maybe that will be the case. I look forward to the sponsor’s response.

[Lord Falconer of Thoroton (Lab)]

It may assist in the light of that exchange if I indicate what my position is. We had a debate some weeks ago about the question of people who had had their liberty deprived within the preceding 12 months. That would obviously include those who were still the subject of a DoL order or a DoL application, and the noble Baroness’s amendment refers to a number of other categories as well, which are similar and which I think would be included. I indicated explicitly in the debate that I think it would be appropriate for me to bring forward explicit extra protections in relation to those people, and in particular, those extra protections might include a specific compulsory further psychiatric examination for that purpose. I have been in discussions with various people in the House in relation to that, and I am seeking advice from officials and others so that I will be able to bring forward proposals on Report. I hope that very much helps my noble friend Lady Berger.

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[Lord Falconer of Thoroton (Lab)]

If that is a reference to whether there should be the affirmative rather than the negative procedure, may I take it away? That seems a reasonable request. May I get back to the Committee on that?

[Baroness Berger (Lab)]

My Lords, we have debated for just over two hours and some very significant issues have been raised. It is worth outlining briefly why this group matters, particularly in the context of what is happening beyond this place and considerations and representations being made in the media.

It was last week that Esther Rantzen told us that the Bill

“only applies to terminally ill people like me”.

The campaigners we hear from reassure us that it would obviously be something that they “freely choose and have fought for”. There are noble Lords who said at Second Reading in this place:

“I want that choice for myself”.—[Official Report, 12/9/25; col. 1786.]


It centres those who have no doubts about their capacity to make this decision and no doubt that they would freely choose, but it removes from the room people who are not like us. It is our job to balance the needs of those with true agency, for whom this will be a free choice, with those who may be pressured or led towards this path, in particular because of the inadequacies of the Mental Capacity Act.

It is clear that there remains significant concern about the relationship between the existing test in the Mental Capacity Act, brought forward in 2005, and the decision to have an assisted death under the Bill. At the risk of stating the obvious, a decision to have an assisted death was not in contemplation for the architects of that Act back in 2005, so it is not surprising that we have heard such a range of questions and concerns, both from noble Lords and from experts outside this Committee, including the Royal College of Psychiatrists.

I listened closely to my noble and learned friend’s remarks to the noble Baroness, Lady Finlay. It may be helpful for noble Lords to be aware that, back in the other place, the desire to use the Mental Capacity Act was largely pragmatic as it is what doctors are used to, not because it is the best framework for this decision. I reflect on the comments from the Health Minister, Stephen Kinnock, who said in the Commons that it is “a known quantity” and a well-established piece of legislation. He went on to say that doing things differently would cause “operational challenges and confusion”, and that a different approach would add complexity. This bunch of amendments has pragmatic, specific proposals for adjustments to address what we are trying to do within the constraints of the legislation. Perhaps this would have all been ironed out if we had gone through some proper pre-legislative scrutiny, as we would have done had this been a government Bill.

In particular, I acknowledge the expertise of the noble Baronesses, Lady Hollins, Lady Cass and Lady Finlay, in this debate. The debate has raised some serious questions about what these specific provisions of the Mental Capacity Act mean for the weakest and most vulnerable: the endorsement of unwise decisions; presumption of capacity; brief retention of information, and whether that is sufficient; a duty to support decision-making, which risks becoming a duty to facilitate a decision to die; and relying on time-specific capacity.

I have in front of me so many different important points raised by noble Lords from across the Committee. In the time we have available, I am not going to mention all of them, so I hope noble Lords will forgive me for that, but it is worth reflecting on just a handful. The noble and learned Baroness, Lady Butler-Sloss, raised the very important concerns about people with variable dementia and people who are sectioned. The right reverend Prelate highlighted the biases experienced by people with learning disabilities and the discrimination they face. The noble Baroness, Lady Finlay, talked about the need for clarity for doctors and how we can at least endeavour to make the Mental Capacity Act fit for purpose in the Bill. The noble Baroness, Lady Cass, reminded us all that assisted death is not a medical treatment. I again reflect on the important representations from the noble Baroness, Lady Grey-Thompson, on the concerns raised by the disabled community and the particular challenges not addressed in the Bill.

Given that my noble and learned friend Lord Falconer indicated in his response that he will defend the Mental Capacity Act as the foundation for the Bill, it is disappointing that he has dismissed the specific provisions that could be set aside and could make a difference. I welcome his earlier intervention, when he said that he would bring forward amendments that would introduce additional assessment in particular cases, but that question is different from the one being asked today, about how we can be confident that the test itself is the right one.

I was particularly concerned by my noble and learned friend’s response to the question from the noble Baroness, Lady Grey-Thompson, about whether a disabled person would be safe. He said that no one would be overpressed into making a decision to end their life. I think that, for many of us here, it is not about being overpressed: we do not want anyone to feel pressed at all. I hope that he will further consider that question, including how experts, who still have so many doubts, can be consulted in more detail.

Given that we first started talking about these issues in this place before Christmas, and in order to expedite our deliberations, I hope that we will not have to wait until Report and that the amendments he mentioned will be brought forward as soon as possible. We understand that he has a wealth of civil servants and legal experts at his disposal; perhaps they can help him to act even quicker. My noble and learned friend has outlined that he is not prepared to accept any of the amendments proposed in this group, but we would like to see what he intends to propose as an alternative. I know that everyone is concerned that we should expedite our deliberations, in the light of the later groups, and that would help us all enormously.

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[Lord Falconer of Thoroton (Lab)]

I said “overpressed”, but I did not mean that; I meant to say pressed. I apologise for saying “overpressed”.

[Baroness Berger (Lab)]

With that, I beg leave to withdraw my amendment.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berger

Committee stage
Friday 23rd January 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I do not want to commit myself to where it will be. It will come somewhere, but I assume the best place for it, subject to advice, would be either with the co-ordinating doctor or the independent doctor, or the panel or all three, having to ask why.

[Baroness Berger (Lab)]

My Lords, I also extend my thanks to the staff of the House for all their diligence in looking after us, particularly at this late hour. I thank all those who have participated in this important debate which, as I said at the start, goes to the heart of what this Bill sets out to do. While I am mindful of the time, I want to acknowledge the fact that there are a number of colleagues who wanted to participate in this debate but were prevented from doing so because of where they live across the UK. I myself would not be here right now if it was not for the fact that I am leading on this group of amendments. I would be with my family, acknowledging the Jewish Sabbath, as I do on a customary basis every single week.

I think it is worth rapidly reflecting on the contributions which build the case for these amendments. We heard from the noble Lord, Lord Shinkwin, about his lived experience of being told that he was going to die, and he is obviously still with us—we are delighted he is still with us—decades later. The noble Lord, Lord Hamilton of Epsom, talked about the challenges of a six-month terminal prognosis and errors in diagnosis. That point was echoed by others during our debate. The noble Lord, Lord Blencathra, talked about the challenges of non-medical motivations dominating the reasons for choosing an assisted death in some other jurisdictions, which really is the prompt for the amendments that we have discussed this afternoon. The noble Lord, Lord Carlile, said that the capability to have an assisted death alone should be due to the terminal illness itself. It was illuminating to hear from the noble Lord, Lord Deben, about his socialist ideals. However, the context in which we consider this Bill is that we are not just individuals; we exist within a society.

I am very grateful to the noble Baroness, Lady Cass, who corroborated how these amendments in a medical context ensure that the motivations for an assisted death are concrete, clear and defensible. I listened closely to the challenge from the noble Lord, Lord Moore of Etchingham—I do not think he is in his place. He asked how these amendments will make a difference, and this was a point echoed by my noble and learned friend. These amendments cement the principle of this Bill. It makes very clear to the public that it is your terminal illness that has to be the reason why you are pursuing an assisted death. Currently, the requirement is that doctors have to assess the patient and, instead of just establishing a clear, settled and informed wish to die, they must, via these amendments, establish that the terminal illness is the reason. That is not to say that there is no risk of someone being misled—that is the inherent risk to this entire Bill, in particular because of the lack of training that will be available to doctors as set out currently in the impact assessment.

The points made by the noble Lord, Lord Harper, showed us how these amendments connect to meeting the public’s expectations of this Bill. The noble Baroness, Lady Finlay, made it clear that the motivation to have an assisted death should be because of terminal illness and we should set that out in the Bill. This is yet another issue that is not clear and we need those clear boundaries. I am grateful to the noble Baroness, Lady Grey-Thompson, for setting out some real-life case studies and examples of why these amendments matter.

I believe that this debate, and, indeed, how my noble and learned friend set out his conclusion just now, has confirmed that there is a real difference at play in how we understand what the Bill sets out to do. For some—I hope I am not mischaracterising, but this was certainly in the contributions of the noble Baroness, Lady Blackstone, and alluded to by the noble Lord, Lord Markham, and my noble friend Lady Royall—it is about autonomy: allowing those who are already dying to exercise choice over the timing and manner of that death. For others, like me, it is primarily about compassion in seeking to prevent or minimise the suffering associated with their illness. These are related positions but they are distinct. My amendments have sought to establish which is the position of the Committee.

For myself and, in particular, those with a strong interest in mental health and suicide prevention, it is the latter that offers the stronger consideration for introducing a system that I am concerned is fraught with obvious risk to the vulnerable and those at risk of pressure. That means that we must do more than simply establish that a person is terminally ill and that they genuinely wish to end their lives; we must have a means of establishing the link between those two questions so that we do not open the door to having the state, which should protect vulnerable people, instead becoming complicit in their premature deaths.

None of these amendments, I believe, prevents there being additional motivations for seeking an assisted death. I intend to revisit this fundamental issue at the next stage and, indeed, through my engagement with this enormously consequential legislation. I will certainly consider the Government’s assessment of the wording as set out by the Minister, and I hope that the sponsor will also consider the profound concerns that have been raised during the course of the debate when we return on Report. For now, I beg leave to withdraw my amendment.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berger

Committee stage
Friday 16th January 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

The commissioner for the EHRC raised a number of points in relation to the risk of discrimination under the convention. The Government have done an equality impact assessment and, broadly, they adopt the approach that it is unlikely that the courts will interfere in a deliberate choice made by the Government, or the legislature in this case, as to what the limits would be of an assisted dying Bill. I agree strongly with that. It is the approach that the English courts have reflected in relation to assisted dying, and it is the approach that the European Court of Human Rights has taken as well. I therefore do not think that the views expressed by the commissioner to the Select Committee are right, but I am more than happy if the noble Baroness, Lady Cash, would like to raise specific ones—or all of them—she can do so with me, and I can raise them with the Government as well.

[Baroness Berger (Lab)]

On this particular point, there is something fundamental that would equip all of us in this Committee, irrespective of our views on the principle of the Bill before us, which is the equality impact assessment—it is lacking. The equality impact assessment came forward from the Government only at the end of Committee in the House of Commons. The response from the Equality and Human Rights Commission is that that assessment is wholly inadequate and is in no way commensurate to the length and detail that we would expect on a government Bill.

We have obviously already heard from the Minister in response to the current set of amendments, but I would urge that, in future responses, we hear from the Government about whether they might be forthcoming with an updated equality impact assessment in order to inform our discussions, debates and deliberations on what we might be considering going forward. So far, what we have heard from the Equality and Human Rights Commission is that we do not have the information before us. As the commission responsible for this legislation, it has some serious concerns, particularly in terms of the societal impact of this Bill that has in no way been addressed or deliberated by the Government in the way that it would have been otherwise.

[Lord Falconer of Thoroton (Lab)]

First, I do not agree with the proposition that it was a bad equality impact assessment. Secondly, the noble Baroness, Lady Cash, legitimately raised the question of differing economic circumstances and whether that could that lead to discrimination. If differing economic circumstances could lead to discrimination—the point that she quite properly raised—then almost every single piece of assisted dying law throughout Europe would be contrary to the European Convention on Human Rights. One has to provide some degree of realism about what the limits of the law are. What the courts here and in Europe are saying is that this is a sensitive and delicate area where they will defer to legislatures.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berger

Committee stage
Friday 5th December 2025 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I guarantee to the noble Baroness that the age is not going to go down from 18 as far as this Bill is concerned. The future is not in my gift, unfortunately. However, as far as the future is concerned, it is extremely unlikely that a subsequent Parliament is going to reduce that age.

[Baroness Berger (Lab)]

My Lords, this has been an important debate that really has encapsulated what this House is here to do. There are, of course, other amendments in this group from the noble Baroness, Lady Goudie, and the noble Lord, Lord Moylan, that we have not discussed. It is worth just putting on record that these seek to prevent discussions with children and will be an essential question to scrutinise and discuss in the next group.

I just wish to very briefly respond to three points that have been made during this group, because it is relevant and important to conversations that will no doubt continue because of the weight of opinion and support that has come forward for these amendments.

I listened very closely to the noble Baroness, Lady Fox, and I just want to make clear that, for all these young people, it is not the exception. It is impossible to imagine a young person who would not have an EHCP. That is the context in which I presented and spoke to these debates. It is not just a small group: we anticipate all of them, apart from a young person who might receive a terminal diagnosis over the age of 25 and will not have time to have an EHCP. Otherwise, we are considering all young people in this context of an EHCP that local authorities have a statutory responsibility for, and it is in that context that I make those representations.

I listened very closely to my noble friend Lord Winston, and he did make some important comments. It is clear that there are some elements of brain development that do evolve and complete by the age of 18, but there are many others that do not. Global experts and authorities on adolescent brain development such as Professor Laurence Steinberg, Professor Casey, who is the expert on neurobiological maturation, and Professor Jay Giedd, who is the MRI pioneer in adolescent brain research, all say that the prefrontal cortex responsible for executive functions does not reach its maturity until the early to mid-20s, continuing to develop well past the age of 18, and that an 18 year-old does not yet have the capacity.

I am reminded again that we have heard a lot of comments from Professor Sarah-Jayne Blakemore. She is the leading UK neuroscientist on adolescence, and she has said that an 18 year-old does not yet have the fully mature capacity for long-term planning and evaluation of consequences that characterises adult executive functioning. We should listen to her comments very closely.

Finally, my noble friend Lady Hayter said that young people would not be asked—it would be something they would request. I would point out that the Bill does enable a doctor to raise this with anyone from the age of 18. It is in that context that I have brought forward these amendments.

I will not refer to all the other important contributions and comments that have been made, but I want to make one final point. It has been very clear from the debate in the other place that even some of those most in favour of assisted dying in principle are highly concerned about the risk of children and young people being drawn into it. The amendments in this group have sought to act on both their concern and the evidence that this House took during our own Select Committee. In all the debates we have had on the Bill, and will no doubt continue to have, we have to grapple with the simple fact that there is no going back if we get it wrong. For young people in particular, we should, as we have been asked to do, err on the side of caution.

I am very glad to hear that my noble and learned friend Lord Falconer will consider an assessment for those aged 19 to 24, but I urge him to accept the simplest and strongest safeguard of all, which is to raise the eligibility to 25. I look forward to further discussions on these matters. With that, I beg leave to withdraw the amendment standing in my name.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I am grateful for all the interventions. These changes are only drafting changes. Some legitimate points were made, particularly by the noble Baronesses, Lady Finlay and Lady Lawlor, but they did not really go to the drafting points.

I go to the concerns various Members have expressed. Amendments 6 and 7, tabled by the noble Baroness, Lady Coffey, would prevent doctors having a conversation with people—I am not saying this in a bad or a good way, but that is what she wants to do—particularly before they reach 18. There is a point there, but it is nothing to do with the change I have introduced in my Amendment 6. My amendment would simply make it clear that there has to be a preliminary discussion before you can go ahead to assisted death. I have done that to make it clear that it is one of the eligibility conditions; it says nothing about what should be talked about or whether such a conversation should take place under the age of 18.

In fact, as the noble Baroness, Lady Coffey, said, Clause 6 states:

“No registered medical practitioner or other health professional shall raise the subject of the provision of assistance in accordance with this Act with a person under the age of 18”.


I do not think that the noble Baroness’s amendment would add to that protection. The key point is that all Amendment 6 is doing is saying that you have to have a Clause 5 discussion.

The next point, raised by a number of Peers, is that I am watering down the protection in relation to domestic abuse. That, as a matter of drafting, is wrong. It is only a matter of convenience that, having defined domestic abuse as including everything so defined in the Domestic Abuse Act 2021, you get coercion, control and economic abuse as forms of domestic abuse. To avoid having to repeat that every time the Bill refers to training, I have simply referred to domestic abuse, and that is then defined at the top of page 41. I very much hope that people will accept that that is the position.

The noble Baroness, Lady O’Loan, who is shaking her head, raises a different point about the position in relation to abuse that is not domestic. Perhaps your lawyer is exercising undue influence on you. That is a point that I will respond to in writing, but it is not a point raised by my drafting change, because all the restrictions have been in relation to domestic abuse, not to what the lawyers would call undue influence. But it is a perfectly legitimate point, which I will come back to in correspondence with her.

[Baroness Berger (Lab)]

On this very point, and for the record, I think many noble Lords will want to hear specifically how my noble and learned friend’s Bill will ensure that, when it comes to the training, all elements of domestic abuse as set out will be covered in that training, particularly given the concerns raised both here and in the other place.