Terminally Ill Adults (End of Life) Bill

Baroness O'Loan Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I believe that there may be some people who wish to speak before I come to my final remarks. I certainly want to hear from the Front Benches and the sponsor of the Bill. I will therefore withhold any remarks at the moment.

[Baroness O’Loan (CB)]

My Lords, I have added my name to Amendments 102 and 106 in this group. Clause 2 is of the utmost importance because the definition of “terminal illness” underpins everything in the Bill. Without a terminal illness, the Bill does not apply and there is no ability to seek assistance in suicide, so the definition is enormously important. Clarity is absolutely necessary and would be enhanced if a list of terminal illnesses were required to be published before the clause on the voluntary assisted dying commissioner could come into effect, as Amendments 85, 894 and 896 would require. Some conditions need to be excluded, such as being elderly, as in Amendment 99. Amendment 102 seeks to ensure that dementia is recognised as a disability and not in itself a terminal illness.

Amendment 105 would exclude anyone with a congenital, genetic or lifelong condition, for which treatments are improving rapidly. Life expectancy has increased dramatically in conditions such as cystic fibrosis, COPD, Parkinson’s and Duchenne muscular dystrophy. Pathfinders Neuromuscular Alliance says:

“Many individuals with progressive conditions, such as muscular dystrophy, live far beyond their initial life expectancy due to advances in medical care. Misjudgments in prognoses could lead to premature decisions, effectively ending lives that might have been enriched by appropriate care and support”.


This Bill does not provide protection for those with such conditions, who may be coerced into seeking an assisted death.

Amendment 106, in the name of the noble Lord, Lord Hunt, and the noble Baroness, Lady Grey-Thompson, to which I have added my name, would prevent assisted dying being offered where medical negligence, malpractice or omission has occurred and given rise to disability, impairment or a terminal condition until all investigations, compensation claims et cetera have been concluded. In many cases involving medical negligence, a failure to diagnose a condition which may have been treatable when the patient first presented is finally diagnosed as a cancer at stage 4 and has metastasised. This may happen, for example, when a young woman, sometimes even a child, has cancer of the cervix or uterus: some doctors do not think they could have such a problem, because they are too young. This will be profoundly difficult for the patients and their families, and it is vital that they do not lose benefits or part of the compensation they might have received by dying of assisted suicide, rather than a death which would have been recorded as having been caused by medical negligence. Those resources may be vital for a single parent with a young family. Does the noble and learned Lord accept the need for these amendments, or what is his alternative suggestion?

There are conditions which can be stabilised or controlled for years, and which, if not stabilised or controlled, may cause a doctor to predict death. Noble Lords have articulated the concerns that exist about the inadequacy and danger of this primary definition. Illnesses that can be stabilised, halted or effectively managed by treatment must be excluded, ensuring that only genuinely terminal illnesses are included in the definition.

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[Lord Falconer of Thoroton (Lab)]

Of course it is a difficult decision, but that is the decision the person has to be clear, firm and settled about. I do not see parity between the decision the individual has to make and making sure there are appropriately qualified people ensuring that the person has the disease. They seem to be two important but different requirements.

The next group of amendments, primarily advanced by the noble Lord, Lord Frost, is on the question of whether suffering should be an element in the eligibility—that terminal illness itself is not sufficient. We have had this debate a number of times, particularly at Second Reading, on some the circumstances where a terminal illness should be excluded. For all the reasons I have given in the past, I am not in favour of suffering being the requirement. What suffering is will vary from person to person. In some cases, it will be the indignity. In some cases, it will be the appalling thought of the change in relationship with those they love. For others, it will be the pain they are going through. It is not, in my respectful view, an appropriate or easily applied condition. So, for all the reasons I have given on a number of occasions before, I am against putting in the question of suffering.

The next group of amendments is that advanced this morning by the noble Baroness, Lady O’Loan. They say that if you are the victim of medical negligence, you should not be entitled to an assisted death. If, for example, your doctor failed to diagnose your condition early enough for you to get treatment and, as a result, you are likely to die earlier, even though you have the condition—for example, prostate cancer—is the position that, because of the negligence of your doctor, you are truly to be denied the right to an assisted death? Unfortunately, I cannot see the logic of that.

[Baroness O’Loan (CB)]

With respect, I did not say that you should be denied an assisted death. I said that assisted death should not be available until all compensation matters and so on have been sorted out.

[Lord Falconer of Thoroton (Lab)]

I think that I have dealt with that point. I have dealt with “inevitably progressive”; I will now deal with the list of illnesses mentioned by the noble Lord, Lord Moylan. Again, I do not think that that is either practical or sensible. The state would have to identify all illnesses in a list; it might miss some, and new illnesses come. Surely it is much better that one has a definition of what the policy aim is, which is to cover

“an inevitably progressive illness or disease which cannot be reversed by treatment”.

I will indicate by an example why the noble Lord, Lord Moylan, is wrong. If you think about HIV/AIDS, how many people would have died without this option—if it had been made available—before the state would have been willing to recognise that it was a fatal condition? It would seem jolly unfair to people that you have to wait for the state to make that decision. The noble Lord, Lord Moylan, also asked for a—

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[Lord Falconer of Thoroton (Lab)]

I apologise unreservedly for saying that the noble Lord, Lord Shinkwin, suffers from a condition. I completely accept the way in which he put it. I also sympathise with him and accept that he suffers from prejudice on a regular basis in relation to it. That is obviously a fate that he has suffered and I have sympathy for him in that respect. On the question of filibuster, my issue with the way in which noble Lords have been dealing with this is that we are now on the ninth day of Committee and we have got to Clause 2. My experience of this House is that it is able to focus on the things that—

[Baroness O'Loan (CB)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Let me finish. We focus on the things that matter and we should not have taken nine days to get to Clause 2.

[Baroness O'Loan (CB)]

The noble and learned Lord keeps saying that we have only got to Clause 1 or Clause 2, but the reality is that over these nine days we have discussed multiple clauses of and schedules to the Bill. It is misleading to suggest that we have only done Clause 1 and a bit of Clause 2.

[Lord Falconer of Thoroton (Lab)]

If that is the position, let us agree a process by which, having covered so many topics already, we can speed our process so that perhaps we can get through Committee in the next day or two.

[Baroness O'Loan (CB)]

The House has its procedures and generally stays by them. There is nothing going on during this Bill which is filibustering. It is analysis of the defects and the flaws in this dangerous Bill.

[Baroness Finlay of Llandaff (CB)]

My Lords, after a very long and extensive debate, I thank all noble Lords who have contributed, particularly those who contributed with their own personal stories and descriptions of the way those experiences have affected people. However, I remind the Committee that we are legislating for the whole country, not for individual stories, and must look at eligibility carefully.

Frankly, the response from the noble and learned Lord is deeply disappointing. These amendments were tabled to make the boundaries of this Bill safer and to avoid opening the door to the wide creep that could happen. In terms of the six-month prognosis, there is an extensive body of evidence that there is no clinical truth in a six-month prognosis. I am delighted to be sitting next to my noble friend Lord Carter of Haslemere, who illustrates that beautifully, as does the noble Baroness, Lady Campbell of Surbiton, who was deemed to be terminally ill many decades ago.

I will try briefly to summarise. Frailty is not included, apparently, but geriatricians will say that frailty has a six-month prognosis, as does cancer. I would not want frailty included and am glad that it has been ruled out. However, people who are frail will also get other conditions. This group of amendments hit to the very issue of informed choice and patients making those choices. As was said, knowledge is power. The information that people need is that their diagnosis is accurate. They need information about the prognosis. It is very disappointing that the wealth of research evidence—systematic reviews, observation studies and so on—has shown that at six months the margin of error is huge.

My noble friend Lady Freeman is absolutely right regarding the way of communicating risk. You can say to people, “In 100 patients, so many are likely to be alive at six months”. The follow-up question that you will always get is, “Yes, but which group am I in?” That is the unknown. Their family will then push further—though not always—to know which group they are in. It is important in communicating information that we are honest and do not pretend that there is some clinical truth around “six months”. There is also, sadly, bias in the minds of doctors. I was concerned to hear from the Minister, if I heard it right, that a different six-month test would be applied by two different doctors—the co-ordinating doctor and the independent doctor—but I will go back to Hansard to look at that. The noble Lord, Lord Wolfson of Tredegar, pointed out the legal uncertainty around “reasonably be expected”. I caution that we should not ignore that.

It is disappointing that there is still a view that, somehow, six months is absolute, ignoring that there are patients who are expected to die not only in six months but possibly much sooner but who remain alive many years later. This is not about five months or seven months. This is about years—five years, 10 years, 15 years. I will not go into individual cases now, but I have a catalogue of them. The six months is not predictable. The attempt in these amendments was to make sure that the patient has better information on which to make probably the most difficult decision that they will ever make and the most irreversible—to end their life.

We have been trying to look at the problems in and improve the Bill. Rejection of all these amendments out of hand, without any invitation to look again at the wording or try to tighten it, is disappointing. With that, I beg leave to withdraw the amendment at this stage.

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[Baroness Hollins (CB)]

My Lords, I added my name to Amendment 87, which details the exclusion of those with diagnosed eating disorders from accessing assisted dying, because I consider this a tricky area deserving of very careful debate. There are serious and specific risks that the Bill poses to people with anorexia nervosa and other eating disorders—conditions with the highest mortality rate of any psychiatric illness, but which are not terminal illnesses. They are complex fluctuating disorders, characterised by impaired insight and a distorted relationship with food, weight and how people view themselves.

Written and oral briefings that we have received make it clear that this is not just a theoretical concern. The Complex Life and Death Decisions group briefing on eating disorders documented how, in jurisdictions with assisted dying laws, eating disorders have been redefined as terminal once patients stop eating and drinking. This is despite the availability of effective evidence-based treatments and well-documented cases of recovery, even after decades of illness. A systematic review published last year in Frontiers in Psychiatry identified at least 60 individuals with eating disorders who died by assisted death in Oregon, Colorado and California—jurisdictions where, as in this Bill, assisted dying is restricted to terminal conditions. A third of those who died were in their teens or 20s, and all were women.

Cases such as this demonstrate the danger of conflating treatment refusal with terminal illness, and of mistaking the voice of a life-threatening psychiatric disorder for a wish to die. Starvation affects the brain in profound ways, including causing rigidity of thinking and allowing the illness itself to dominate choices. This can happen even to the point where perceived thinness is valued over life.

Yet people with anorexia can appear highly articulate and lucid, which can mask these deeper impairments and make capacity assessments unreliable. Many are judged to have capacity in other areas of life even while their decision-making around food, weight and choosing self-preservation is seriously distorted by the disorder. Someone may seem capable of making an end-of-life decision while simultaneously lacking capacity for the very decisions that would keep them alive. We need to acknowledge this complexity and proceed with the utmost care, recognising that these individuals are among those most at risk under the Bill.

Those who refuse to eat or drink because of mental illness must also be excluded from the Bill’s scope so that we can properly safeguard them and ensure that they receive the treatment and support that they need to recover. Amendment 87A would offer a valuable clarification, ensuring that this would apply regardless of whether the refusal of food or drink is voluntary or arises from a mental disorder. This would prevent any ambiguity that could otherwise allow conditions such as catatonia or other serious mental illnesses to be misclassified as terminal under the Bill. It would provide further safeguards for people with mental disorders.

There are mental-health conditions where life-threatening physical complications can occur without the restriction of food and drink. Amendments 90, 92 and 103 also cover this key area and would ensure that assisted dying is limited to people who are genuinely terminally ill due to disease progression and not because they choose to refuse care, food, fluids or treatment. A person cannot be considered terminally ill if their life-threatening condition arises from the secondary effects of mental illness.

[Baroness O’Loan (CB)]

My Lords, the issues raised in this group are extensive and a matter for great concern. Refusing food and hydration is a sure way to die, as, in many cases, is refusing treatment such as dialysis and insulin. Refusing food or treatment is a choice that a patient is entitled to make, if they have the capacity to make such a decision. However, that cannot translate into an obligation on the state to help the person to kill themselves. That was recognised, as the noble and learned Lord, Lord Falconer, said, by the Bill’s sponsor in the other place, hence the wording of Clause 2(2). However, the noble and learned Lord’s Amendment 87 would remove the safeguard offered by Clause 2(2), as it would prevent the Bill applying only where the person has a mental disorder and the act of refusing food or hydration causes them to have an illness or disease.

Many states start by offering assistance to die in very limited circumstances, but, only a short time afterwards, the grounds for the state helping people to kill themselves expand—in some cases, almost inconceivably. Do you have no wheelchair? We will help you die. Do you have no home? We will help you die. Are you suffering from PTSD after military service? We will help you die. In many jurisdictions, anorexia, which is a treatable illness, is accepted as justification for assisted suicide and so on. All the examples that I have just given—no wheelchair, no home and suffering PTSD—were grounds for assisted dying in Canada recently.

There are many suggestions for how to address the terrible vacuum through which all sorts of conditions that are not terminal could, as a consequence of refusing food, treatment or hydration, become terminal. I put my name to one such amendment, Amendment 101, in the name of the noble Baroness, Lady Parminter, and all the amendments in this group, other than Amendment 87, seek to address the issue. However, it is clear that the list of conditions and situations currently provided in Clause 2 as exceptions to the definition of terminal illness is not adequate. The noble and learned Lord, Lord Falconer, has even removed from the Bill the more general safeguard inserted by the MP for Batley and Spen. The noble and learned Lord will have to move far beyond his Amendments 87 and 87A if he is to satisfy the Committee that the definition of the situations that do not qualify as terminal illness is in any way satisfactory.

The prevalence of eating disorders goes way beyond what one might perhaps reasonably expect. NHS statistics for 2023 tell us that the prevalence of any eating disorder in the age group of 11 to 16 year-olds was 2.6%, but that in the case of girls it was 4.3%, compared with only 1% in the case of boys. If we move to the group of 17 to 19 year-olds, the figure is 12.5% in the whole group but, among girls, the number suffering from an eating disorder rises to 20.8%, compared with 5.1% among boys. Those are NHS figures. A review of current literature up to 2022 investigating suicide in eating disorders found that the prevalence of suicidal ideation was 51% and the prevalence of suicide attempts was 22%. I am very grateful to the young intern doing a PhD who provided me with these figures from the NHS. They demonstrate the magnitude of the problem of eating disorders today and, even more terribly, the 51% prevalence of suicidal ideation. Half of all people suffering from anorexia or other eating disorders will contemplate suicide, and more than one in five of those suffering from an eating disorder will attempt to take their own lives, although the disorder that they suffer from can be treated if they get proper treatment.

The Bill effectively creates a class of people—particularly disabled people, diabetics, those on dialysis, and others who need continuous life-sustaining treatment—who can at will cause themselves to have a terminal illness as defined by the Bill. Experts and the courts have agreed that refusing such treatment and creating a terminal illness out of a desire to die does not vitiate capacity. Can the noble and learned Lord, Lord Falconer, explain how creating a class of disabled people for whom voluntary suicide is legal and state-supported is consistent with the UK’s obligations under Articles 2 and 14 of the European convention?

[Baroness Finlay of Llandaff (CB)]

My Lords, I have in this group an amendment that was recommended by the Complex Life and Death Decisions group at King’s and which builds on the clause that was proposed in the other place by the MP for Bradford West and accepted, currently Clause 2(2). It seems that Amendment 87 before us would knock that out, but it has an amendment to it that has been clearly explained by the noble Baroness, Lady Keeley.

This seems to be the start of an improvement that is very necessary, but it does not do everything. There is a concern that those with other types of eating disorder can be missed out or slip through the net, particularly those with bulimia and those who go on completely bizarre diets and end up with severe malnutritional states. I have known two examples directly: one person believed that he could live only on cottage cheese, and another was eating kilogrammes of parsnips every day in the belief that that would cure her disease, and ended up with quite severe metabolic disturbances.

The problem with the amendments so far is that they fail to exclude the voluntary stopping of eating and drinking that is designed deliberately to make you terminally ill. I mention, if I may, the problem of T1DE—that is, a type I diabetic with an eating disorder. Lesley and Neal lost their young daughter Megan at Dignitas, after years of inadequate treatment. I have permission to quote them. They said:

“Following inadequate and inappropriate in-patient and community treatment for T1DE, our daughter chose to take her own life after asking for a Dignitas referral from her care team. She clearly would have taken up the assisted dying option if available to her, however, just before she committed suicide she said ‘I don’t really want to die, I just can’t do this any more’”.


That illustrates the real difficulty for young people with disorders that are on the boundary here. I hope that we can build on these amendments on Report to make sure that they really are watertight.

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[Baroness Gerada (CB)]

My Lords, I am completely in favour of Amendment 87. I have permission to use the name of my patient, Melanie Spooner, who died from anorexia nervosa—she died from taking her own life. The end point of anorexia nervosa is often that the patient wants to die. As such, it is a terrible mental illness, and I think that not conflating and excluding this group is absolutely the right way forward.

One other issue has been bothering me ever since I have been coming to these Fridays: it is the conflation of the words assisted suicide with assisted death. For a decade now, I have been looking after those bereaved following the death by suicide of their loved ones, and I have about 100 people whom I care for. Suicide is often a violent act; it is often an act done alone and it is often done to punish people—I am terribly sorry if anyone here knows people who have killed themselves. It is a very prolonged bereavement, and a very complicated grief that affects up to 60 to 70 people in its wake.

Assisted death, as we have heard from the group that came from Australia, can sometimes be filled with hope and sometimes with joy, with family around for those last moments. It affects both groups: those whom I look after, who have been bereaved following suicide, and the relatives of those who have taken voluntary assisted death. It is such a small thing, but it really grates, and it is one of the most inappropriate and irresponsible ways of conflating the language.

[Baroness O'Loan (CB)]

Before the noble Baroness sits down, can I ask her whether she is aware that recent research has shown that 42% of people think that assisted death is actually the provision of palliative care, and that it is actually quite important to distinguish between the two?

[Baroness Gerada (CB)]

I was not aware of that research. The evidence shows, and we heard it from the Australian group, that where voluntary assisted death is in place, the provision of palliative care is improved. In Australia, a great deal more resource was put in to providing palliative care. My point, however, is: please can we no longer conflate the language of assisted suicide with that of voluntary assisted death.

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[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.

[Baroness O’Loan (CB)]

My Lords, as a consequence of our earlier debates, as the noble Lord, Lord Markham, said, we know that in the context of applications for assisted suicide, the Mental Capacity Act, which is to be used for determining capacity, would permit an unwise decision—we have all agreed on that—even if driven by depression, loneliness or despair. We know that it would treat brief retention of information as sufficient even when the Bill requires a clear, informed and settled wish, and even though we know that, in cases of dementia, 76% of patients who refused life-saving treatment while delirious have no memory whatsoever of having done so 24 hours to 72 hours later.

Another study found that more than 60% of patients who voiced a wish to die during a bad day had no recollection of it when mood or cognition improved. People who cannot retain or consider information on their choice the day after making it will not be able to avail themselves of the cooling-off period, which is for contemplation about what is proposed. They will be in a very dangerous position, especially if their particular condition leaves them suggestible to options offered to them by those who care for them professionally, in whom they will probably place great trust.

The Mental Capacity Act also imposes a duty to support decision-making, which in this context risks becoming a duty to facilitate a decision to die. The Mental Capacity Act says that capacity expressly includes making an unwise decision, even if it would be irreversible and total self-harm. Alex Ruck Keene said in giving evidence that “if you simply read across the Mental Capacity Act, there is a duty on all the people carrying out the assessments to seek to support the person to have capacity to end their own life.”

We also know that it will rely on time-specific capacity, despite the Bill requiring consistency across all these stages, from one, two, seven, eight and so on. The reality is that the only one that requires an interaction between the doctor and the patient is the first one. The rest of them are exercises that may not involve any consultation with the patient who is making the application, let alone a face-to-face engagement. The Bill purports to introduce a statutory framework for determining capacity, but it does not do so in reality because the MCA is designed to test when a person cannot make a decision, not whether someone is capable of doing so. I hope that the noble and learned Lord, Lord Falconer, will accept the intent of these clear and effective—

[Lord Falconer of Thoroton (Lab)]

The noble Baroness suggested that the only interaction will be with the first doctor. She will be aware that Clause 12 requires both doctors to examine and have discussions with the patient and she will also be aware that, under normal, though not all, circumstances, the panel must speak to the patient—unless there is an exceptional reason why they should not.

[Baroness O'Loan (CB)]

Those are both qualified as exceptions. I will carry on.

[Lord Falconer of Thoroton (Lab)]

It is exactly the same for the co-ordinating doctor and the independent doctor. I am not clear what distinction the noble Baroness is making between the two. Perhaps she can explain to the Committee.

[Baroness O'Loan (CB)]

I will revert to the Bill and come back to the noble and learned Lord in due course. If I am wrong, I apologise.

The noble and learned Lord has committed, in your Lordship’s House, to build special protection for those currently or recently subject to a deprivation of liberty order, as raised by the noble Lord, Lord Markham, but the detail has not emerged. What will the specific protections be? Will there be an outright ban for those, for example, under DOLs or in prison? In Committee on 16 December, the noble and learned Lord said that, where somebody has made an application that a person’s liberty be taken away because they are seriously mentally ill or lack capacity, or a person has actually been deprived of their liberty, special provision should be made. I know the noble and learned Lord has said he will make provision, but time is passing and we still have no indication what that provision must be.

Previously, on behalf of the Government, the Minister noted that denying those under DOLs access to assisted dying might later be interpreted by a court as a breach of ECHR obligations. I would like to ask the Minister what the Government’s view is as to the minimum protection that must be offered to those deprived of liberty and susceptible to suicidal ideation if the Bill is to be compliant with the Government’s obligations under the Human Rights Act and the ECHR.

The presumption of capacity in the Bill may result in the acceptance of unwise decisions by those who will have forgotten about them the very next day. We know that clinicians and practitioners want clarity and certainty; they do not want to be left repeatedly in situations in which they must exercise their discretion. All the professional bodies have told us that. The risk of litigation, or intervention by a regulator or the police, would inevitably exercise the minds of those who act professionally. Without clear rules, the system cannot work; things will fall apart.

The Bill provides for a period of reflection once a decision is made to allow someone carefully to consider the choice involved, weighing all the information again and thinking over this life or death choice. The noble and learned Lord and the Chief Medical Officer have claimed that the MCA requires a higher threshold for life and death decisions. Legal experts, including Alex Ruck Keene KC, confirm that the Act contains no such stipulation; it does not provide a higher threshold.

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[Lord Deben (Con)]

I have some sympathy with the noble Baroness. She is very fortunate with the care home her husband is in, as is he. For many years, I represented the constituency that had perhaps the largest number of care homes in the country. Suffolk Coastal is an elegant area, and with towns such as Southwold, Aldeburgh and Felixstowe, it is a natural place for them. I would, of course, visit them on a regular basis, as indeed did my wife.

I have to say to the noble Baroness that the difference between the best and the worst is very considerable indeed. In grave humour, if I displeased my children, they would mention the worst one as the one where I might be placed. I put it like that because they recognised it, too: the very considerable difference. The reason why I think the amendment from the noble Lord, Lord Blencathra, so important is precisely because it does not exclude people. It says that the conditions of care homes are such that it is important to protect people rather differently, because of our experience. Some of the care homes in my former constituency are absolutely wonderful, with really good care by really good clinicians. However, I cannot say that that is universal, so I think we should have some protection—and this seems to me to be very sensible and it does not exclude anybody.

The noble Baroness suggested that this would exclude people, but this is a proposal that would protect those who are less happily off than the noble Baroness and her husband. It is very generous of her to share her current concerns: mine are not as current, but they are very much wider and from a much longer period. I looked again at the devastating effect of Covid, which came after my membership of the House of Commons, because of connections that one had—and that has made me even stronger in my belief that we should be especially concerned for those in care homes, not because of the best or even the average, but because there are many where people would otherwise be vulnerable.

[Baroness O'Loan (CB)]

My Lords, I will speak to Amendment 112 in the name of the noble Baroness, Lady Eaton, who cannot be with us today. I have put my name to this amendment, and Amendment 111.

Although this is a small group, it addresses a very important matter. I endorse what the noble Lord, Lord Deben, said. I extend my sympathy to the noble Baroness, Lady Hayter, because I know what it is like to have someone in a care home. In my case it was someone who had dementia for years and was in a very deteriorating situation. It is profoundly difficult. However, there are huge variations in the standards in these homes. Because of that, this is trying to introduce an additional safeguard for the situation where all is not as well as it might be.

For example, in the care homes during Covid, people were put under DNRs as a matter of process by the care homes. It should not have happened, but it did happen. That was the result. If you are in a care home and fall down the stairs, you may have a broken hip and all sorts of consequential problems. Ambulances, certainly in the part of the country where my mother was, do not attend care homes for at least four hours. They are not priorities. So there are difficulties with care homes.

Importantly, it is about care homes and nursing homes. The residents of care homes and nursing homes often have very few visitors. Some of them have family who come to them, but many of them do not. Another experience I have had is that they latch on to you and want you to visit them, too, because they are lonely. They have little or no contact outside the home and can become very isolated and alone, although they are living in a community within the care home in which they must live. The British Geriatrics Society gave evidence to the Select Committee emphasising that robust specialist assessment is essential where decisions carry finality—and there is no more final decision than this.

Amendment 111 would therefore require a heightened evidential standard, demonstrable through a specialist clinical assessment, for residents of registered care or nursing homes. One in three people with dementia in the UK is never diagnosed. Alzheimer’s Research UK told us that the dementia diagnosis rate in England was 66.3% in December 2025. Dementia incidence is over 20% higher among Black adults compared with the UK average.

The noble and learned Lord, Lord Falconer, has agreed that it is necessary to make provision for those who have been made subject to a DoL. He said last week that he was preparing the amendments, for those who are between 18 and 25 and those subject to DoLs, and that he is considering what additional assessment could apply. We have talked about that a little. Age UK confirms that 70% of care and nursing home residents suffer from cognitive impairment. They have a heightened risk of delirium and confusion arising from infection, dehydration and medication effects. Compassion in Care, based on more than 1,000 calls from care workers and family members, found that the predominant concern raised by both groups was the issue of capacity, with 97% of helpline callers raising the issue of fluctuating cognitive capacity of care home residents.

The issue of UTIs was raised in 97% of calls. The issue of lack of fluids was raised in 89% of calls. Lack of fluids is a very common problem, because people with cognitive impairment or a form of dementia may not receive sufficient hydration. When a drink is provided, they may forget it. My mother used to welcome the drink and get all excited that a cup of tea had been delivered to her, then just ignore it. She would not drink it unless we coaxed her repeatedly to do so. That is not an uncommon experience. Also, the elderly are very susceptible to UTIs, which require antibiotic treatment. Very often, the UTI is recognised first by the visitor, not by the care home staff, because the visitor can see the level of confusion which is consuming the person who is in distress.

A significant proportion of people who are living with dementia or cognitive impairments are not diagnosed until the later stages of the disease. Standard mental capacity assessments conducted by non-clinical professionals often fail to take these factors into account when seeking to establish capacity. The high proportion of undiagnosed dementia among care home residents presents a margin of error that, I would respectfully suggest to your Lordships, no legislature can reasonably and responsibly ignore.

To address the problems identified, Amendment 111 would require a higher evidential standard. Amendment 112 would provide for residents of registered care and nursing homes. The explanatory statement states:

“This amendment provides that, for residents of registered care or nursing homes, capacity may only be established following (1) a specialist clinical assessment ruling out reversible causes of fluctuating or impaired capacity, and (2) a capacity determination conducted by a consultant psychiatrist with relevant expertise. It further clarifies that an MCA assessment alone is insufficient given the heightened medical and institutional vulnerability to unstable capacity in care home settings”.