Lord Blencathra
Main Page: Lord Blencathra (Conservative - Life peer)
Lord Goodman of Wycombe (Con)
The noble Baroness, Lady Berger, is quite correct. That is exactly what happened in the Select Committee. For my sins, I sit on a surfeit of committees, including the Delegated Powers Committee, which drew attention to this very deficit in the Bill. So the question for the noble and learned Lord, Lord Falconer, is: since the Minister was questioned in the Select Committee by the noble Baroness, Lady Berger, in the weeks that have followed, has he had any guarantee from the Government that they will ensure that the Secretary of State by regulation ensures that the NHS delivers voluntary assisted dying services? When the Minister replies to the debate, can she cast some light on this matter so that we know whether or not the proposal that the noble Lord, Lord Birt, has put forward and my noble friend has opposed really has any basis in reality?
Lord Blencathra (Con)
My Lords, I was delighted to hear the noble Baroness, Lady Fox of Buckley, hit every nail on the head of everything that is wrong with the amendment moved by the noble Lord, Lord Birt. I shall speak to the amendments in the names of my noble friends Lord Mackinlay of Richborough and Lord Harper, and I have signed some of them. I have done so because the Bill as drafted, and as now proposed to be amended by the noble Lords, Lord Birt and Lord Pannick, promises choice while quietly engineering speed, centralisation and a single-minded pathway to assisted death. That is not a neutral design choice. It reshapes incentives, shifts resources and narrows real options for people at the end of life.
I will give three short examples of why the amendments proposed by the noble Lord, Lord Birt, are wrong, and end with a direct challenge to the noble and learned Lord, Lord Falconer of Thoroton.
First, the amendments would turn life and death decisions into a fast-track process. From first declaration to possible assistance, the clock can run down to 30 days, or as few as 18 days if death is deemed imminent. Panels must decide within 48 hours of referral. Reports are forced within 24 hours. Reflection periods can be cut to 24 hours. That is extraordinary. Courts take months to resolve urgent life issues. Prognoses measured in months are notoriously unreliable. Rushing assessments in this way risks premature deaths, misdiagnoses and inadequate exploration of reversible causes of despair. My noble friends’ amendments, including the ones that I have signed, push back against that compression.
Secondly, as others have pointed out, the assisted dying help service and the personal navigator create an asymmetric system. The navigator is designed to shepherd people quickly through the assisted dying pathway. There is no equivalent statutory guarantee that a person will get timely access to palliative care, hospice support, social services or mental health interventions. In practice, a patient could reach assisted death faster than they could gain access to pain control, a care package, meaningful social intervention or, as the noble Baroness said, a GP appointment these days. That is a perverse allocation of scarce resources and a distortion of choice. When one option is actively facilitated and the others are not, choice becomes a funnel.
Lord Birt (CB)
I do not think it for us, in framing in principle amendments, to deal with that level of issue, but the noble Lord is right—that is exactly what the body should do. We are talking about highly distressed people, and it should facilitate different kinds of response and reaction to their difficulty.
Lord Blencathra (Con)
If I heard the noble Lord correctly, he said that anyone going to A&E gets a navigator. He was challenged by the noble Baroness, Lady O’Loan, but he did not hear her question. She said that she never experienced that in her life and neither have I. If any noble Lord has, I would be grateful to hear it. If you go to St Thomas’, the first people you meet are two security guards who are there to keep people out.
Lord Birt (CB)
Plainly, the NHS is a very large organisation and it offers a variety of different kinds of experience. I hope none of us uses A&E very often but, like everybody else, I have used it and, in my experience, I have found it very efficient indeed at handling everything.
As I have said already, there are many issues and if anybody wants to talk to me and the noble Lord, Lord Pannick, about them, please do. I end with a very simple point, and I address this particularly to the noble and learned Lord, Lord Falconer. I am utterly convinced that this needs a proper organisational framework. You cannot throw this complexity of issues at the National Health Service. It also needs a more flexible process than currently exists to deal with the complexity that I have outlined, which comes out of the Australian experience. Both those things need to be in the Bill, and the noble Lord, Lord Pannick, and I will be returning to these issues on Report with, I hope, as much help from across the Chamber as possible. In the meantime, I beg leave to withdraw the amendment.
Lord Blencathra
“(1A) Assistance may be provided only under this Act where the person has demonstrably understood—(a) their diagnosis,(b) their prognosis,(c) their treatment options, (d) any inherent uncertainties in the assisted dying process, and(e) any known risks and likely complications of the approved substance.”Member’s explanatory statement
This amendment seeks to strengthen the Bill’s informed consent requirements by ensuring that a patient’s understanding must be demonstrated, rather than assumed.
Lord Blencathra (Con)
My Lords, I will move my Amendment 39A and speak to my Amendments 238B and 553G. The purpose of Amendment 39A is to require that the patient’s understanding is demonstrable, not assumed.
Before I continue, I wish to thank the Chief Whip for his very wise decision to have a 40-minute lunch break but, as the average age of this House is 71, it was more like a loo break. It was very convenient, whatever it was. I move on to the subject of the amendment.
This amendment goes to the heart of autonomy. The Bill repeatedly invokes autonomy as its moral foundation, yet it does not require that the patient’s understanding be demonstrated. In every other area of medicine, informed consent requires evidence that the patient has actually understood the information. Here, where the outcome is irreversible, the evidential threshold should be higher, not lower.
The Bill currently requires doctors to “explain” and “discuss” certain matters, but it nowhere requires confirmation that the patient has absorbed or understood them. That is a fundamental flaw. NICE guidance, GMC guidance and the Montgomery judgment all emphasise that consent is valid only when the patient understands material risks, uncertainties and alternatives. The Bill omits these requirements.
International comparators—Oregon, California and Victoria—all require explicit discussion of risks and complications. England and Wales would be an outlier if we did not require demonstrable understanding. This amendment simply aligns the Bill with established medical ethics and legal precedent.
My final point on this amendment is that it protects clinicians. Without a demonstrable understanding requirement, a doctor could comply with the Act while failing to meet professional standards. That is a recipe for litigation, confusion and moral hazard.
My Amendment 238B would introduce a safeguard that is standard in every jurisdiction where assisted suicide is legal. A written acknowledgement would ensure that the patient has been informed of the risks— including prolonged dying, vomiting, seizure or failure of the drugs—and that they understand them. Without this, the Bill creates a parallel medical system where the usual rules of consent simply do not apply.
The Bill currently requires doctors to discuss
“the nature of the substance”
and what to do in the event of “complications”, but it does not require doctors to explain that complications may occur or what they are. That is a glaring omission. A patient cannot meaningfully consent to a life-ending drug without knowing that it may not work as intended.
Those noble Lords who have experienced cancer treatment or chemotherapy know that, before one gets it, one has to spend about an hour with a clinician or the oncologist ticking boxes on a form, explaining and saying that they understand all the potential downsides. I recall having to complete a seven-page form to do so. It is important that patients consent.
This amendment would also protect clinicians. The Bill grants civil liability exemptions for doctors acting in good faith but, without a written acknowledgement, there is no evidential record that the patient was informed of the risks. This exposes clinicians to professional risk and undermines public trust. Finally, this amendment is modest, proportionate and entirely consistent with the principle of autonomy.
I turn to my Amendment 553G, which is a Montgomery compliance clause. It would require doctors to apply the principles of Montgomery v Lanarkshire when informing patients of material risks. The amendment would embed that leading case on informed consent into the Bill. Montgomery requires doctors to inform patients of material risks and reasonable alternatives. The Bill does not currently require this. That omission is extraordinary in a process that ends in death. Without this amendment, the Bill creates a parallel medical system where the usual rules of consent do not apply. That is ethically indefensible. If anything, the standard should be higher than in ordinary medicine, not lower. This amendment would also protect clinicians by ensuring they are not forced to choose between complying with the Act and complying with their professional obligations. Finally, I believe that this amendment would align the Bill with international best practice.
These three amendments together would make the policy clearer, leaner and fairer. By tightening rules and strengthening enforcement, amendment 1 would remove ambiguity and speed decisions, reducing disputes and legal exposure. My amendment 2 would lower operational friction and cost by streamlining processes and clarifying responsibilities, which would improve efficiency and predictability during implementation. My third amendment would enhance fairness and future readiness by embedding equitable principles and scalable mechanisms, increasing stakeholder buy-in and adaptability as circumstances evolve. The result would be a more enforceable, cost-effective framework that better serves stakeholders today while remaining flexible for tomorrow. These amendments are practical, complementary—
Lord Falconer of Thoroton (Lab)
The noble Lord referred to amendment 1, amendment 2 and amendment 3. I apologise, but I did not know which his amendment 2 was.
Lord Blencathra (Con)
I realise that I should not have said that. When I spoke to my amendment 1, I meant Amendment 39A. I shall rephrase that: my Amendment 39A would remove ambiguity and speed decisions; my Amendment 238B would lower operational friction and costs by streamlining processes; and my Amendment 553G would enhance fairness and future readiness by embedding equitable principles and scalable mechanisms, et cetera. I believe that those three amendments would result in a more enforceable, cost-effective framework that would better serve stakeholders today while remaining flexible for tomorrow. The amendments are practical, complementary and strategically aligned to deliver measurable improvements in performance, compliance and stakeholder confidence. I commend them to the Committee and to the noble and learned Lord, Lord Falconer of Thoroton. I beg to move.
Baroness Coffey (Con)
My Lords, I tabled Amendment 43, to which Amendments 312 and 340 are consequential, and Amendment 188A, so I will speak to those. Amendment 43 would bring in the term “demonstrably”. I appreciate that noble Lords may think that this is dancing on the head of a pin, but it is my understanding that the use of “demonstrably” is well known in legal practice, and it effectively requires evidence. I appreciate that there are other aspects of the Bill, when it was first introduced, that were set out in specific forms, but they have been replaced by a variety of regulations and other powers, so I think we just need to be clear about what that really means.
Being informed conceptually is meaningless unless we can establish that the person can demonstrate to healthcare professionals and others that they understand assisted dying, they understand the process and they are absolutely committed to this journey on which they go. The Bill currently requires that certain matters be explained and discussed, but it does not require evidence that the patient has understood them. I appreciate that one of the things about the current Clause 3 of the Bill is that the Mental Capacity Act 2005, which is at the MoJ level but is used in the NHS, requires in effect only a balance, rather than something much firmer, in terms of probabilities of understanding.
It is important to understand the impact of the lethal drugs that people are going to be given, and my noble friend referred to international examples. In Victoria in Australia, and in Oregon in the USA, there are firmer elements of how it can be demonstrably identified and verified that this decision is being made. It should also be recognised that we need to make sure that the doctors setting this out may say, “Your death is actually going to be quite straightforward. It may take longer, but it may not be as painful”. I accept that people on this journey are close to dying, but they need to understand the risks and how that comes about. We have not yet got into the detail of understanding which drugs are going to be used in this process.
One of the reasons I tabled the amendment on Montgomery compliance is that there was a significant ruling to do with liability and negligence. Back in 2015, the Supreme Court effectively made sure that a patient-centred focus became the norm. There was a more recent ruling in the case of McCulloch in 2023. In 1985 the House of Lords judges spoke about the professional basically making the decision, whereas the key ruling in the 2015 case, and the principles behind it, show that case law has helped to evolve what has ended up becoming guidance. We should be clear in this Bill about the exact approach that we want to have. I appreciate that this may seem a bit nebulous to the Minister, but I tabled it as a probing amendment.
In the case of McCulloch, the NHS basically said, “We’re more or less back to Bolam”, which was the original test. I know that the noble Baroness, Lady Freeman of Steventon, had to leave early, but this is one of her key areas of expertise; she teaches this in different places around the country, including in the NHS. One of the presentations that she shared with me shows that the director’s advisory role involves dialogue, the aim of which is to ensure that there is an understanding of the seriousness of a condition. The information provider has to be comprehensible. The doctor’s duty is therefore not fulfilled by bombarding the patient with technical information that they may not reasonably be expected to grasp, let alone by routinely just demanding a signature on a consent form.
I am trying to make sure that, instead of just relying on case law that may change, we end up being very clear about the need for a patient-centred focus and the principles on which we expect this process to happen. The other aspect, which we will get into a bit later, is that I am just trying to explore what this looks like for the person involved, at a pretty scary time of their lives, if we go down this route. I am afraid I have seen it happen too often with things such as DNR: patients are not necessarily given good advice and are told that the doctor knows best. I want to be crystal-clear that somebody who is going through a difficult moment needs to be aware of not only options but risks, and what the balance might be on whether to go with a lethal dose of certain drugs or to take a different route in order to end their life in a good way. That is why I have proposed these amendments.
Baroness Hayter of Kentish Town (Lab)
Can I put it on record that I am not shaking my head? I think it was made clear that the power of attorney could not be used for this purpose.
Lord Blencathra (Con)
This has been another interesting debate. Possibly more important than the speeches that we all made at the beginning has been the last 40 minutes of real debate and interchange with the noble and learned Lord. I am left with the feeling that many colleagues in the Committee feel that there are a lot of unanswered questions and some uncertainties that we may need to return to.
However, I will follow the instructions of the Companion and the Government Whips, and I will not seek to respond in any detail to the many good points raised by noble Lords. I merely wish to remind the Committee that in the debate we heard from the noble Baronesses, Lady Coffey, Lady Lawlor, Lady Hollins, Lady Berridge, Lady Finlay of Llandaff and Lady O’Loan. We also heard from the noble Lords, Lord Empey, Lord Harper, Lord McCrea, Lord Carlile of Berriew, Lord Wilson of Tredegar and Lord Mawson. What they all had in common was that they were deeply concerned that the definition of informed consent is not strong enough in the Bill and something more needs to be added.
I think that the noble and learned Lord relied on Clause 12(2)(c)(iv). The doctors have to discuss
“the nature of the substance that is to be provided”
and, in Clause 12(2)(d),
“discuss with the person their wishes in the event of complications”.
However, there is nothing in there to say that they have to discuss the complications with them or the possible side effects. The noble and learned Lord may pick me up on this if I put the wrong words into his mouth, but I think that he said that explaining the nature of the substance could possibly—I think that he used that word—include discussing the possibility of complications and side effects.
Lord Falconer of Thoroton (Lab)
If the noble Lord is suggesting that I said “possibly”, meaning that you might have to say what the complications were, if there were complications or the threat of complications, I did not say that. I said that if there was the prospect of complications, you would have to say.
Lord Blencathra (Con)
I think that I will have to check the record, as I firmly remember the noble and learned Lord using the word “possible”; it will be “possible” to discuss this. I think that most noble Lords who have spoken do not want the possibility of it being discussed but the certainty of it being discussed, and that may require an amendment to this part of the Bill.
Many noble Lords made the point that you cannot get any NHS treatment or any medical treatment these days unless the doctor takes elaborate steps to explain the consequences, the downsides and things that could possibly go wrong. That extends through all aspects of health. Two days ago, I went down Victoria Street to buy a packet of Night Nurse in Boots. I was interrogated: “Have you taken this medication before, are you taking other medication with it, are you aware it can make you drowsy?”—they were practically asking, “Are you going to fly a jet plane after this?” It goes to that extent in selling drugs. Noble Lords were concerned that, when people are getting treatment to help cure them, they get every single thing explained, but they would not get it explained to them in detail if it is a treatment to kill them.
Some may say, “What does it matter? If you’re going to take a drug that will kill you, why do you need to know the side-effects?” Well, you do not need to know the long-term side-effects, of course, but you do need to know any side-effects the drugs may have. As the noble Lord, Lord Goddard, said, NICE guidelines say that no drug can be supplied unless it is approved by NICE. But NICE approves drugs to treat you; it does not approve a lethal dose. We have seen in the United States death row places where people are given a cocktail of drugs. In the old days, it was straightforward: it was a drug that could kill you. Now, they are given drugs that, taken individually, can help your life, but, when given in combination to put someone to sleep, slow the heart and all the other things, those cocktails eventually kill them. We have heard horrendous stories of the cocktails not working and the person waking up. Noble Lords have raised questions about what would happen if a patient who is given a lethal cocktail or drug wakes up; we just do not know what the consequences would be.
Lord Blencathra
“(1A) A person is only eligible for assistance under this Act if their wish to end their life is principally attributable to the symptoms, suffering or prognosis of the terminal illness.”Member’s explanatory statement
This amendment seeks to narrow eligibility for assistance to illness-related motives.
Lord Blencathra (Con)
My Lords, I will speak relatively briefly to the amendments in this group. I degrouped them for a technical reason. They are quite narrowly drawn. I know there is a group coming up, led by the noble Baroness, Lady Berger, that is wider ranging and more important than mine. If any noble Lord wishes to speak on the principle of these amendments, they might be better off waiting for the noble Baroness’s group.
The purpose of my Amendment 39B is to ensure that a person who wishes to die is driven by their illness, not by poverty, loneliness, lack of care or other remedial pressures. This would restore the link between the justification for the Bill and its operation. The political case for assisted dying has always been framed around unbearable physical suffering caused by terminal illness, yet the Bill contains no requirement that the person’s motivation must arise from that illness. Without this amendment, the Bill becomes a general choice in adversity scheme, where any reason—financial distress, lack of care, fear of being a burden—can drive the decision.
The noble and learned Lord has now explicitly said:
“I am strongly against saying poor people should not have that choice”.—[Official Report, 16/1/26; col. 2020.]
That is an admission that the Bill permits assisted death for reasons of poverty. My amendment would correct that. It would ensure that the motivation must be principally attributable to the illness itself, not to the state’s failure to provide care, housing or support. This is not about denying autonomy; it is about ensuring that autonomy is real. A decision driven by poverty or abandonment is not a free choice. The amendment would ensure that the Bill remains what the public believe it to be: a response to suffering caused by terminal illness, not a response to social failure.
My Amendment 39C would draw a clear line: financial distress, lack of housing or lack of social support cannot be the primary motivations for an assisted death. Without this safeguard, the Bill risks becoming a mechanism by which poor and unsupported people are offered death instead of help. The Bill is presented to the public as a response to the unbearable physical suffering caused by terminal illness, yet it contains no requirement that the person’s motivation must arise from that illness. Without these amendments, the Bill permits assisted death for a whole host of reasons that Parliament never intended, such as loneliness, poverty, lack of housing, lack of care or feeling like a burden on the state or your dependants.
The noble and learned Lord has now accepted that these motivations are valid choices. That is a dramatic shift from his own 2012 commission, which said that motivations were never legitimate and that safeguards must prevent them. Peers are entitled to ask what has changed other than the political need to keep the Bill workable. International evidence shows that non-medical motivations dominate assisted dying requests. Pain is not the primary driver. We hear that being a burden is a driver, as is the loss of autonomy. Parliament must decide whether it is comfortable legislating for that.
Finally, these amendments ensure that asking “why” has consequences. If the answer is poverty, loneliness or lack of care, the response should be support, not a lethal prescription. These amendments restore coherence, safeguard autonomy and prevent the Bill from becoming a general choice in adversity scheme. I beg to move.
Lord Kamall (Con)
In the interests of being brief, rather than repeating everything that my noble friend said, I look forward to the answers from the sponsor of the Bill and from the Minister.
Lord Falconer of Thoroton (Lab)
My Lords, I am grateful for how this has been dealt with. We have discussed this a lot, at Second Reading and in Committee. I have made clear that, while suffering may very often be the cause of somebody wanting an assisted death, it is not the trigger for it as a legal requirement. Why people want to end their life in the context of a terminal illness is for them to decide. The effect of these amendments is that a person is entitled to an assisted death only if the reasons for them wanting the assisted death are the symptoms, suffering or prognosis of the terminal illness. I am not in favour of inquiring as to precisely what is the cause. Severe misery may well be the cause in the context of a terminal illness. In my view, this provision would unduly limit the entitlement to an assisted death, so I am against these amendments because they go right against the principle of the Bill.
Lord Blencathra (Con)
My Lords, I think that the noble and learned Lord is utterly wrong in his last pronouncement. Misery should not be a reason for an assisted death. The misery might be able to be removed. At Second Reading, my noble friend Lord Moylan stated that many people do not actually want to die; they want the things that are causing the feeling to be removed. They want better housing, they want better relationships with their family, they wish their love life was better or they want out of total misery. The noble and learned Lord is utterly wrong in seeming to extend the reason for dying beyond the severity of the terminal illness.
We will probably discuss this better and in more detail in the next group of amendments, so I beg leave to withdraw my amendment.
Lord Hamilton of Epsom (Con)
I am very grateful to the noble Baroness. That just illustrates my point that misdiagnosis can very easily be done, and we are putting an enormous weight on it in this Bill and it can so often be wrong. We should be very disturbed and concerned about that because it means that we may be passing legislation which is based on faulty information.
Lord Blencathra (Con)
My Lords, this may be a convenient point to speak to two amendments in my name in this group. My Amendment 320ZA complements Amendments 39B and 39C, which I briefly touched on in the last debate, by making explicit that non-medical motivations cannot drive an assisted death. It draws a distinct line between medical suffering and social abandonment. International evidence shows that non-medical motivations dominate assisted dying requests. In Oregon, “being a burden” is cited by nearly half of all applicants. Parliament must decide whether it is comfortable legislating for that. This amendment ensures that England and Wales do not drift into a model in which existential distress, loneliness or, in the words of the noble and learned Lord, “sheer misery” or lack of care become accepted reasons for state-facilitated death. It also responds directly to the Equality and Human Rights Commission, which warned that subtle pressures from lack of services can drive people prematurely towards death. This amendment ensures those pressures are addressed, not endorsed.
My other Amendment 332AA operationalises the “ask why” concession. The noble and learned Lord, Lord Falconer, said he is “attracted” to requiring clinicians to ask why a person wants to die but unless the answer has consequences, the question is meaningless. This amendment ensures that when the answer is, “I am a burden” or “I cannot afford care,” or “I am alone”, “I am fed up” or “I am miserable”, the process pauses and support is provided. It reflects the evidence from the Royal College of Psychiatrists and British Geriatrics Society, both of which emphasise the need for holistic assessment. It ensures that treatable depression, unmet care needs or social pressures are addressed before an irreversible decision is made. This is safeguarding, not obstruction. It ensures that assisted death is not used as a substitute for care.
My amendments matter because, first, they protect genuine choice. A decision driven by lack of heating, housing or social care is not the same as one driven by intractable physical decline. These amendments stop the law becoming a backdoor response to social failure.
Secondly, I believe they are a practical safeguard, not a veto. This is not a blanket ban; it is a procedural pause to address fixable problems—social support, benefits, palliative referrals—before a final medical judgment is made. Thirdly, clinicians need clarity. Doctors must be able to ask why and act on the answer. These amendments would give them a clear statutory duty to do so, reducing moral and legal ambiguity. If the noble and learned Lord, Lord Falconer of Thoroton, truly believes this Bill is about free, informed choice, will he oppose leaving people to die because the state failed to provide basic support or will he back these modest, targeted safeguards?
Lord Markham (Con)
The main point here is that, by definition, you are eligible for assisted death only if you have been diagnosed to be within six months of the end of your life through a terminal illness. That is the reason that you are applying for an assisted death. That is motivation for doing it, because clearly it is not like those people want to die. We have talked to many people, and I am sure a lot of people have, and they desperately do not want to be in this situation.