Terminally Ill Adults (End of Life) Bill

Lord Winston Excerpts

Friday 14th November 2025 Lords Chamber

[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.

[Baroness Browning (Con)]

My Lords, many years ago, in another place, I served on the pre-legislative scrutiny committee and was present taking what became the Mental Capacity Act through the House of Commons. When I came to your Lordships’ House in 2010, I was fortunate enough to secure a House of Lords inquiry to look post-legislatively at how the Mental Capacity Act was working. From the evidence we took at the time, we found that the ability of the medical profession—by which I mean not just doctors but all those across the piece, including social care workers—was not as ideal as it perhaps sounds in today’s Committee. Whatever is built into the Bill to assess either capacity or ability, there will need to be a heck of a lot of training for us all to feel comfortable that the professionals involved know how to go about their task.

I draw the Committee’s attention to the report last month of the National Audit Office, whose press release stated:

“The Department for Health and Social Care (DHSC) and NHS England (NHSE) do not clearly understand what proportion of palliative and end-of-life care is delivered by independent adult hospices, and therefore, how much they are reliant on the sector, or what the real impact of government funding is”.


We have heard that palliative care is patchy. I know from my own recent experience with a close relative that, had I not been somebody capable of organising it myself, it would not have taken place. We are not dealing with finite disciplines in the debate on this group, and I caution the Committee that it is not as perfect out there as it sounds today.

--- Later in debate ---

[Lord Harper (Con)]

My Lords, I have listened carefully to the debate. The noble Baroness, Lady Finlay, has done the Committee a service in tabling this amendment. It has enabled us to think in advance of the debate that we will have when we get to Clause 3 on the existing wording in the Bill about the Mental Capacity Act. Some of those issues came out in the debate that we have just had. It has been helpful to cue that up.

I want to comment on a couple of issues following on from the comments made by the noble Lord, Lord Deben. Two different things are being talked about with capacity and ability. I listened carefully to the comments of the noble Lords, Lord Pannick and Lord Scriven. There is a clear mental capacity test. But as others have said—I will not repeat the quote—experts in assessing capacity from the Royal College of Psychiatrists think that this decision was not thought about when the test was designed and that it is not an adequate test. I will not labour the point now, but we should think about whether we need a new test or, as the noble Lord, Lord Deben, said, an additive process where we take the Mental Capacity Act test and add something to it. There are amendments on both of those—a new test or adding things to it.

That comes to the point that the noble Lord, Lord Scriven, made. Of course, it is true that people make life and death decisions about medical treatment and about whether to refuse medical treatment. But there is a qualitative difference between refusing medical treatment, even if the consequence of refusing that medical treatment will be to hasten the end of your life, and to make a decision for active steps to be taken to administer substances to you which will end your life. They are very different things, and they are treated differently in the law. Perhaps that is the reason why we have had that slight cross-purpose. We need to be very precise about our language when we come to have that debate on capacity. I think that that would be helpful. That is all I will say about that at this point. I suspect that we will have a very extensive debate on Clause 3.

I think that the noble Baroness, Lady Finlay, was getting at something a little wider, which was not just about the capability of the individual to make a decision—that is the capacity piece. It was also about both the information they are furnished with and whether they have all the information at their disposal to be able to exercise their capacity to make a decision. It is not just about whether the information is available but whether the services are available that make that a truly proper, informed decision. Clearly, she has enormous expertise in palliative care.

Whether that palliative care is available in practice is incredibly important. Somebody could have capacity, and we could judge that they do. I listened very carefully to what the noble Baroness, Lady Andrews, said, with her expertise on the Mental Capacity Act, and I listened carefully to my noble friend Lady Browning about the importance of recognising how it works in practice, but it is also about whether those services are available. You could have the capacity and a lot of information provided to you, but if the palliative care services are not available to you, you do not have the ability to make a meaningful choice about whether you wish to end your life. I think that is what the noble Baroness, Lady Finlay, was getting at in that wider use of the word “ability” on top of capacity.

When we get to Clause 3 and the amendments to it, one of the things we should think about is whether we accept that the Mental Capacity Act is a good basis. As people on both sides of the argument have said, it is a tried and tested situation. As we heard earlier, it has been tested in court, up to and including the Supreme Court. We should think about whether we want to replace that with a completely new test or whether we actually stick with the Mental Capacity Act and perhaps have some additions to it, which recognise that it is a qualitatively different decision from whether you are having medical treatment or not. That is the essence of it.

In the place it is in the Bill, just accepting the word “ability” probably is not the right thing to do. We want that wider debate. But the noble Baroness, Lady Finlay, has done us a service in flagging up some of the issues that we can now think about in advance of the debate on Clause 3.

[Lord Winston (Lab)]

Before the noble Lord sits down, perhaps he could just clarify a point. Medical royal colleges are often quoted as having a view, but they are very seldom unanimous. I wonder whether he could tell us not just the percentage of psychiatrists but how many psychiatrists who are members of the royal college specifically had this view and how may did not. That is really important. There were a number of people who just did not respond to a question.

[Lord Harper (Con)]

I am happy to answer. I do not know how many did. My understanding is that the royal college, whatever its decision-making processes are, has publicly said that it does not think this is adequate. As I said, I did not quote it, because it had been quoted at length. I put some weight on that.

As a relatively new Member of your Lordships’ House, I am also very struck that this House is blessed with those who have enormous experience in the law, who have to make some of these decisions in practice, and experienced legislators, such as myself, who have looked carefully at the operation of the legislation, both in taking it and post-legislative scrutiny. Many Members have personal experience, either themselves or through family members, of the exercise of these laws in practice. I will listen very carefully to them.

Therefore, the view of the Royal College of Psychiatrists is clearly an important one that I will put some weight on, but I will also listen very carefully to others in the House, who I think will add enormously to this debate as we weigh up this important piece of legislation. I thank the noble Lord for his question.

--- Later in debate ---

[Baroness Scotland of Asthal (Lab)]

If we look at what Professor Foster and others have said, they say that the Mental Health Act 1983 is the sort of assessment that a psychiatrist should make as to whether they are in a position to make that decision. It is not just the MCA on its own—

[Lord Winston (Lab)]

My Lords—

[Baroness Scotland of Asthal (Lab)]

If I could just be allowed to finish, I would be most grateful, because I have taken only three minutes and 48 seconds, and I do not intend to trouble the Committee for very much longer.

This issue has to be looked at. We have to be serious about looking at the Mental Health Act 1983, looking at the Act on capacity and coming up with something that suits. This is too serious for us not to do it. All of us care deeply about those who suffer, care deeply about those who face a diagnosis about the end of their lives, and we have to get this right. So, I ask the Committee to be kind to each other, to listen, to understand that the pain that is suffered on all sides is real and that we are entrusted to do something quite extraordinary once in a generation and we cannot fail. And I know that the people in this Committee will not fail, because we will take our job seriously.

[Lord Winston (Lab)]

Before my noble and learned friend sits down, will she just recall some evidence that we took in the committee that we sat on together only a week or two ago? My noble and learned friend was very keen to have evidence from New Zealand, where they had a three-year follow-up which showed that three-quarters of the patients who had asked for assisted dying had already been on palliative care. The two things are not exclusive by any means, and it is certainly relevant to consider that. Palliative care, of course, was okay, but some patients finally decided that they did not want it any more—most of them, in fact. It was 2,880 patients.

[Baroness Scotland of Asthal (Lab)]

We were very grateful to receive evidence from New Zealand, and we heard from a practitioner about the challenges and the opportunities that there are. But we also heard that New Zealand had moved from being the third most successful in delivering palliative care to the 12th, and there was a direct correlation, we were told, between the reduction in the investment in palliative care and the existence of the new service. These are the realities, and there are many who have said that if there is to be a real choice—if I can just finish this sentence, I would be grateful—then the choice has to include a fully funded palliative care service to enable people to choose whether that is the course they want to go down, or another. Without that, the choice is not a real one.