Terminally Ill Adults (End of Life) Bill

Lord Bishop of Newcastle Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, it is usually necessary to have a rather greater capacity to make a will than to get married, which may perhaps be rather surprising. I am concerned about two groups of people: those with intermittent dementia who from time to time appear to be entirely normal and then the next day cannot remember anything that has happened, and people who are sectioned under mental health legislation.

Some years ago there was a famous case about someone who was sectioned. It was intended, in his best interest, to amputate his leg, but he absolutely refused. He was allowed to have the capacity to make that refusal, and in the end it was not necessary to amputate his leg. Consequently, it is quite tricky to determine whether that group of people who have been sectioned under mental health legislation will be seen to have sufficient capacity under the Mental Capacity Act.

It would be extremely helpful if the noble and learned Lord, Lord Falconer, could provide us, before Report, with what he sees as the changes that might be achieved to give special status. If he does not do that, we will spend a lot of time, all over again, on an issue that probably could be dealt with fairly quickly.

[The Lord Bishop of Newcastle]

My Lords, I will speak to Amendment 108, to which the right reverend Prelate the Bishop of Lincoln has added his name. He regrets that he cannot be in his place today, as he is interested in this amendment as lead bishop for the L’Arche community in the UK. With the Church of England, L’Arche strives to provide a positive and inclusive residential community in which adults with and without learning disabilities can live and grow together.

Health inequalities come into focus for much of the Bill. As we heard in the Select Committee on the Bill, people with learning disabilities experience significant inequalities in health outcomes. The learning disabilities mortality review found that 40% of the deaths of individuals with learning disabilities in 2023 were linked to avoidable, treatable or preventable causes—double that of the general population. As we heard from Ken Ross on behalf of the National Down Syndrome Policy Group, people with Down syndrome are likely to die 27 years earlier than their peers. He highlighted

“a systemic direct and indirect bias shown within the health service, which could also be linked to a lack of understanding of the needs, wishes, health, learning and communication profiles of this particular group”.

That bias is linked to what other people feel a life worth living is like, sometimes pejoratively described as a life without dignity.

We have heard about the high suggestibility of some people with learning disabilities, and the discrimination they face both in and outside the healthcare system. This is closely linked to capacity. It is clear that additional protections are needed for this group, which is why due consideration should be paid to this amendment.

[Viscount Colville of Culross (CB)]

My Lords, I apologise: this is the first time I have spoken on the Bill. I have added my name to Amendment 115 in the name of my noble friend Lady Finlay. My concern is that, as other noble Lords have told the Committee, the Mental Capacity Act has the presumption that, if in doubt, the doctors making the assessment of the patient’s mental capacity have to assume that they have the capacity unless proved otherwise.

As other noble Lords have also said, if the patient is deciding whether to go into a residential home or what to do about their financial affairs, that is fine. But I am convinced that a terminally ill patient should have to prove that they have the mental capacity to make the gravest decision possible: that of ending their own life. I would like their doctors to have to decide that the patient has the mental capacity to make such a huge decision. Amendment 115 sets out a list of tests to help the doctor come to that conclusion.

To find out the importance of the changes to the Bill put forward in Amendment 115, noble Lords have only to look at jurisdictions where the default position is the presumption of mental capacity. Canada has already been raised by the noble Baroness, Lady Berger, with very good reason. In some provinces, such as Quebec, 8% of all deaths are by assisted dying, and on Vancouver Island, which has lamentable palliative care, the percentage rises to 11%. These, in my view, are big numbers.

I am concerned by the Canadian definition of mental capacity, which, as with our own Mental Capacity Act, emphasises that every person is presumed to have mental capacity unless proved otherwise. In the early stages of dementia, this can lead to cases of people being assumed to have mental capacity for assisted dying, or MAID as it is called in Canada, even when they are confused about the implications of the decision.

I have spoken to a number of Canadian doctors and psychiatrists, who gave me worrying examples of this happening. One doctor told me they had a male patient in his mid-70s with prostate cancer who had been diagnosed with mild dementia. He was admitted to hospital for worsening confusion. Medical investigations were undertaken to determine whether this was delirium on top of the dementia or worsening dementia. During the admission, and before the cause of the worsening condition had been determined, he stated that he wanted to be left alone and that he wanted to die, so the MAID team were called.

The MAID team deemed him eligible for the process, but then the palliative care team were also called. The doctor I spoke to was the patient’s consultant on this team. She interviewed the patient and he told her that he wanted hospice care and palliative treatment. She concluded that he could not differentiate between being sent to a hospice for palliative care and having a lethal injection to immediately end his life. But the MAID team still assumed that he had the mental capacity to go ahead with his first decision to have assisted dying. When they asked him subsequently whether he wanted medication to help him to die, he agreed to it. MAID was carried out shortly afterwards.

I would like the Bill to ensure that there is no confusion about whether such terminally ill patients have the capacity needed for this huge decision. I suggest that Amendment 115’s proposed subsections (1) and (2), which would reverse the presumption of mental capacity, would prove a much better safeguard.

I also draw your Lordships’ attention to whether having a doctor raising the option of assisted dying to a terminally ill patient is regarded as treatment, a matter on which the Minister in the other place said the Government were silent. Proposed subsection (6)(g) of Amendment 115 states that

“the self-administration of such a substance is not a medical treatment for their terminal illness but a personal choice concerning life and death”.

I know that amendments to Clause 5, if accepted, would have the same effect, but I argue that it would be a belt and braces to have the concept that the doctor cannot, unprompted, raise the option of assisted dying in the mental capacity clause of the Bill. It is important that the request for assisted dying is initiated by the patient and is not seen as a treatment initiated by the medical team.

Once again, I turn to the experience in Canada, where doctors and healthcare professionals are duty-bound to raise assisted dying as an option for any patient admitted to hospital who suffers from a condition that makes them eligible for MAID. I spoke to the doctor of a Canadian patient who was found to be eligible for MAID and went into hospital. Each medical professional who visited him offered the option of MAID, alongside the option of drugs to alleviate his condition. This meant that on the day of going into hospital, he was offered MAID six times by six different medical professionals. Each medic was aware that if they did not offer the option, because MAID is classed as a medical treatment, they would be sued for negligence. I fear this will put unnecessary pressure on patients.

Obviously, the eligibility for MAID in Canada is very different from that proposed in the Bill, but Canada is still an important lesson for us. In this country, it is imperative that it is left up to the eligible patient to initiate the request for assisted dying. The amendment would ensure that doctors are not forced to initiate the request, which would avoid the patient feeling any pressure to end their own life. I hope that the amendment will be accepted. It would provide safety rails for patients eligible for assisted dying.