Terminally Ill Adults (End of Life) Bill

Baroness Scotland of Asthal Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

[Lord Scriven (LD)]

If I may help the noble Baroness, the answer is that the Oliver McGowan training—which is a statutory requirement for all doctors—is now in place. It is high-level training on both capacity and of dealing with people who are vulnerable.

[Baroness Scotland of Asthal (Lab)]

My Lords, I have hesitated to intervene at this point because we are going to come later to talk about capacity and why the Mental Capacity Act and its definition does not fit well with this Bill. I am disappointed in the way in which the last few comments have turned this debate, not least because all of us belong to professional bodies which express collective views on our behalf and have to be respected. It is disappointing that we should have in this House an attack on a view which is expressed by a professional body in this way.

However, there are real reason as to why the Mental Capacity Act is seen as having deficiency in this context, which it normally does not have. It is a fine piece of legislation that we were very proud to introduce, and it has given liberty, capacity and the opportunity to be heard to many people who had limited capacity in the past. I give quarter to no one about the power of that Act.

But is the Mental Capacity Act perfect when we come to consider this particular issue? It is not. Why is it not? Because you can have and suffer from a mental illness and still have capacity. Yet we know that, when individuals are faced with the terrible diagnosis that they are to die, and their families are distraught, and they themselves have to face that reality, depression is not abnormal; it is normal. The fact is that some of those people, many of whom we know, some of whom are within our families, some of whom have suffered deeply, contemplate whether it would not be simpler, easier, less painful for everyone if they simply ended their lives. But what else do we know? We know that, when that depression bites, there is means of alleviation. We know that, with good palliative care, they can be enabled to make an informed decision. That informed decision may be that they still want to take a step, but the opportunity to get that support is essential.

Yet when we look at the capacity Act, the fact that someone is deeply depressed does not mean that they lack capacity within the meaning of the Act—

[Baroness Murphy (CB)]

It does.

[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.

[Baroness Thornton (Lab)]

Would my noble and learned friend care to tell the House which other countries the committee took evidence from?

[Baroness Scotland of Asthal (Lab)]

The difficulty we had was of course with time. We did not take a lot of evidence. The Committee will know that there was a request that we should take written evidence. It would have been possible for us to take written evidence from a number of jurisdictions, which could then have formed a body of evidence that could have been looked at. The decision was made by the committee that we should not take written evidence—so I think the committee was constrained in terms of what it could do and the timing. The committee tried to do its best. I hope that this House will not deny itself the opportunity of looking at evidence from other jurisdictions; we will all be able to talk about that in due course.

[Baroness Jay of Paddington (Lab)]

My Lords, I am grateful to my noble friend Lady Thornton for raising the question of other countries. Some of us here have sat on Select Committees on this subject over a large number of years; for example, I did so 20 years ago. I would not suggest that that evidence is necessarily completely relevant, but the fact is that we have taken evidence. We have not simply taken written evidence; we have been to countries where this has been in practice for many years. If, for example, noble Lords were to look at parts of the United States such as Oregon—one of the states that introduced assisted dying many years ago—they would see that the improvements in palliative care have been enormous and coincident with the application of assisted dying. It has never been the case, for those of us who support the Bill or support the general principle of assisted dying, that there is a choice between palliative care and assisted dying: both should be available.

[Baroness Scotland of Asthal (Lab)]

I never suggested that they should be alternatives. The truth is that palliative care is not available in all parts of our country, so this has to be a real choice. That is the only element I made.

Also, I hope that all of us would look at the evidence, from wherever it came. We know that we have to make evidence-based decisions, and the best evidence will help us to make the best decisions.

[Lord Sentamu (CB)]

My Lords, I want us to return to the amendment and my contribution will be very brief.

The wonderful joy of the English language is that it is always evolving to meet circumstances that were never perceived before. That is why it will continue to be the language of the world. The word “capacity” is no longer just a psychiatric term to assess people’s mental ability; it now applies to whether a council has the capacity to do one thing or another. The word now is no longer a very narrow word. I am quite surprised when I hear people say that the word has been used for a very long time in the medical circle. But the word “capacity” is not in the rules of the Persians and Medes that can never be changed—words grow.

When we are dealing with a new situation of assisted dying, we need to look at whether the word “capacity” is adequate to deal with the new circumstances we are discussing in our Parliament. Is it adequate for a person who is facing the question of death and saying “I want to end my life now”? What does the word “capacity” mean to them?

The word “ability” would probably come much nearer to the understanding of an ordinary person wanting to make a decision about ending their life medically. Let us not treat the word “capacity” as such a holy word which cannot be changed. Let us not be lazy but work hard and consult a lot of other people in the field who know the most adequate word to describe this. I thank the mover of the amendment. Perhaps it could be put into a melting pot with some other words and out will pop a word that makes sense, and the whole House can rally around it.

Terminally Ill Adults (End of Life) Bill

Baroness Scotland of Asthal Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, first, I am sure that I will not be able to reach the high standard of the right reverend Prelate the Bishop of Chester, but I will try.

Secondly, I do not think I am rejecting the principle of many of the amendments. I am saying that—for example, in relation to an independent decision and to encouragement—the protection is there in practice. I also say to the noble Baroness, Lady Coffey, that her reference to organisations is something we could discuss. I think it may already be covered but let us discuss it.

The noble Lord, Lord Harper, is right: I am saying no to quite a lot of the amendments because, in my opinion, I do not think they are necessary and there is adequate protection. It does not mean I am not listening; but painful as it is, because I respect so many people who disagree with me, I do disagree with some people.

I am very conscious as well of what the Chief Medical Officer, Sir Chris Whitty, said, which is not to over-engineer this and make it a thicket people cannot get through. If you are serious about assisted dying, make sure it is genuinely accessible to people. I am trying to strike that balance.

[Baroness Scotland of Asthal (Lab)]

My Lords, I wonder if I might help my noble and learned friend on the concerns that clearly have been expressed. A number of noble Lords have been talking about what evidence there is. The concern was expressed in the last debate last Friday that if you are not going to have someone who has been intimately involved with the family or the person who is making the request, that becomes more difficult.

A number of suggestions have been made. For example, would it be possible to have a multidisciplinary assessment of need and coercion early, so that you could have the information? My noble and learned friend will know that when we make these multidisciplinary assessments, usually you hear from everyone—the social worker, the housing officer—just as we do for the multiagency risk assessment for domestic violence; and those domestic violence cases are really important. Will my noble and learned friend look again at how the Bill could make sure that the evidence upon which these decisions are going to be made is there?

Secondly, I will deal with the amendment from the noble Baroness, Lady Fox, on encouragement. My noble and learned friend will know—I disclosed this to the House, because, of course, I was the Attorney-General when the DPP’s guidelines were put out— that the whole purpose of looking at and assessing encouragement was to make sure that no one else had applied pressure. The word “encouragement” very much comes from the DPP’s guidelines, which has meant that since they came in, only four prosecutions have been made. They were made in relation to people who were identified as having participated in something which might have been homicide or manslaughter, and others were not prosecuted. I know that my noble and learned friend would think that entirely proper.

Will my noble and learned friend think again about looking at those issues to make sure, perhaps through regulations, that we can have that clarity, which might give reassurance to those who are desperately concerned about these issues?

[Lord Falconer of Thoroton (Lab)]

In relation to the multidisciplinary team, Amendment 222 from the noble Baroness, Lady Hollins, is a bit close to that but not quite there. On the question of encouragement, of course, the reason why the DPP’s guidelines refer to encouragement is that the criminal offence at the moment is encouraging suicide, and that deals with a completely different concept.

May I go on into Amendment 50—