Terminally Ill Adults (End of Life) Bill

Lord Empey Excerpts

Friday 30th January 2026 Lords Chamber

[Baroness Coffey (Con)]

I am grateful to the noble Lords, Lord Harper and Lord Empey, for signing this amendment. I will also speak to my Amendment 65 and consider an amendment put forward by the shadow Front Bench.

It is disappointing that the Justice Minister is not in her place on the Front Bench today, because in discussing these amendments I want to consider the important issue of assessing whether someone has capacity. The MoJ is responsible for that, and for several of the other matters I wish to speak on. We are only at Clause 1(3), but this is a key element to consider carefully: where do all these issues have to happen, and do they have to happen face to face?

As the Bill reads currently, it suggests that only the initial request for assistance, the first declaration, the doctor’s assessment and the second doctor’s assessment, and then the second declaration, have to happen while the person making all these requests is in the country. No other part of the Bill, including preliminary discussions and the act itself—all these other things—has to happen in this country; the person does not have to be here.

I think I have made it clear in a series of amendments that I have brought to the Committee that my concern is how this becomes something that is decided not just on paper. There should be real interaction, and I am trying to understand how the Bill will work in practice. That is why I have asked a series of questions on whether or not the terminally ill person making the request has to be in the country. We should get into other aspects, such as whether the panel has to be here.

We had a debate earlier in Committee, during which I made a clumsy attempt to make sure people had to be in this country. As I said, you can be ordinarily resident in more than one country at the same time. I want to continue to focus on this being a person-based process—I do not like using the term “patient-based process”, as I do not consider this to be a health treatment—and a lot of that is about where somebody is and whether there is a face-to-face link.

Recently, in a different policy, the Government rightly want to accelerate and increase substantially the number of face-to-face assessments for consideration of eligibility for sickness benefits. A lot of that was changed during Covid because, frankly, it was not practical to undertake that process. It has been gradually brought back and needs to be accelerated. The thinking alongside that policy is critical to the application of this Bill.

I have interpreted Clause 1(3)(b) as meaning that only

“steps under sections 10 and 11”

have to be done by persons in England and Wales, and that is the initial assessment. I put it to the Committee that a lot more of this should be done face to face. As the late James Munby pointed out, it is absolutely right that the panel should be considering this process and looking into this. I am conscious there will be medics here who have perhaps an even greater understanding than I of how the variety of assessments should be done face to face. What happens when people are making a declaration? Are we sure that somebody is not in the room, giving them the eyes so that they will give the right answers? How are we to understand whether coercion can happen or not?

In a documentary undertaken by ITV, the Bill’s promoter, Kim Leadbeater, expressed concerns about what happens in Oregon, where a lot of this is done by video link. I believe she was uncomfortable and would consider adding an amendment to make it clear that consultations with doctors could not be done by video call and should be done in person. That has not been done so far, and no explanation has been given. That is why I have tabled these amendments. They would be a very important way of making sure there are safeguards so that, as we go through this novel process to us— I appreciate it is not novel to the world—we have every confidence that a lot of the safeguards which people are concerned about are going to be appropriately applied.

Last week, a discussion on a group brought forward by the noble Lord, Lord Birt, gave us a picture of how this could look. Indeed, the amendments tabled by the noble and learned Lord, Lord Falconer, have started to touch on aspects of this, such as how a commission can happen. But I can see that, very quickly, especially bearing in mind some of the amendments last week—though I appreciate that the noble and learned Lord did not accept them—a panel could be meeting every day. Right now, it could involve somebody on holiday in Tenerife and somebody else elsewhere meeting on Zoom or Teams or whatever. That could quickly become a routine tick-box exercise. That is the very reason the late Sir James Munby pointed out that this should not be given to judges—what is the point of having a judge if it will be just a tick-box exercise? We need to be careful that we do not end up in that situation.

In Amendment 65, I have suggested specifically what needs to be done face to face: the preliminary discussion, the request—as is in the Bill—and the witness. The witness should be there and it should be face to face. That seems sensible. We have the first and second assessment already there, but I think we could go further. What about the interaction with the independent advocate? Is that going to be done down the phone? These are the serious things which we need to consider. Should the panel meet face to face with the person applying? I appreciate that, in Amendment 320A, the assumption is that it should be face to face, but perhaps with exceptions by a video link. Again, when I initially started observing this at the other end, I thought that this would happen. What seems to have evolved is that a lot of this will be done remotely. The only thing I have not included in Amendment 65 is the actual doctor being there and the assessment happening in this country—although that is not specified in the Bill. Clause 25(3) says that the co-ordinating doctor has to be there in person, although under the following clause that can all be delegated to somebody else.

I do not want to overly labour the point in consideration, but I hope noble Lords will give some thought to how they want to see the Bill work in practice. It may be that people are happy for this all to happen via video and are wondering why we are getting in the way, given that this is about autonomy. However, these would be sensible amendments to consider to make sure that, while no Minister yet has said this is a safe Bill, it is as safe as possible. We need to look at the operation of it. It is certainly the case in other parts of the health system that a lot of this would not be acceptable and would have to be done face to face. It is not a case of overengineering the Bill or leaving it to regulations. We should be clear in Parliament that this is what we are going to do.

I am conscious of Amendment 320A, and I appreciate that my noble friend Lord Evans of Rainow, in Amendment 376, has particularly singled out “in person” for parts of Clause 12. I get that some people may be so terminally ill that perhaps a video link might be used, but that should be exceptional, if we are going to go down that route at all. I look forward to hearing my noble friend explain why that is the case and how it can be administered. With that, I beg to move.

[Lord Empey (UUP)]

My Lords, I have put my name to some of these amendments. In the spirit of what the Chief Whip said, I will not repeat what the noble Baroness, Lady Coffey, said, but I gently remind the Committee that this Private Member’s Bill is not normal, in so far as most Private Member’s Bills are five, six, seven or eight pages. This one is 51 pages, with 59 clauses. It is a very different animal from what we are used to.

I think the amendments in this group have been tabled because, in many respects, this aspect of the process is deeply disturbing. We are talking about life and death here; we are talking about making assessments of a person who is making an application for an assisted death. Noble Lords will be aware that, on 29 October, in the Select Committee, Professor Martin J Vernon, chair of the British Geriatrics Society’s ethics and law special interest group, said:

“Assessing somebody remotely, digitally, without a face-to-face assessment, particularly if they have complex health and social care needs, is nigh-on impossible”.


I would have thought that, to assess somebody’s state of mind and to have any sense of judging whether they are being coerced or not, one of the most obvious things is to see them in front of you and get the feel for that. How can a psychiatrist judge this?

The other point I would make is about the practicalities. Depending on where someone is in this country, they may or may not have the equipment or the capacity to use it; signals drop off. Inevitably, if somebody is in a frail and unstable condition, there will have to be other people present to operate this. Does that mean that a team from the hospital would have to go out to some remote location—or, even worse, are we doing stuff on the phone? Can you imagine how people would react? “Dial-a-death” would be the sort of way that people would describe it.

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[Lord Harper (Con)]

The noble Baroness makes a very good point which illustrates the importance of being able to ask people questions directly rather than hearing reports of what they have said or seeing it on a video call. That is the importance of in-person conversation and the ability to ask questions and hear answers so that you know what people actually think. I think the noble Baroness has illustrated and evidenced my point extraordinarily well, and I am grateful for her intervention.

At the beginning of this, the noble Baroness, Lady Gerada, referred to medical assessments. She is right in saying that many of them can be done very well remotely. I think that is excellent. I am a great supporter of technology. We do not all believe in quills and pens, and I do not think the noble Baroness, Lady Pidgeon, was entirely suggesting that we were. She might want to reflect on that remark and whether it was entirely well-intentioned, given what the Chief Whip said to us about treating everyone with courtesy and respect. I support the use of technology where it is appropriate.

The problem here is that the noble Baroness, Lady Gerada, said that we can all rest assured that doctors would never view this as a routine exercise. The problem is that in other jurisdictions there is quite a lot of evidence that they do. While it is true, as the noble Baroness, Lady Blackstone, said, that the vast majority of doctors will approach this in absolutely the right way, I am afraid not all doctors are perfect. There was an example yesterday of a paediatrician at Great Ormond Street who had an appalling record. We have to make sure that the law makes sure that patients are properly protected in all cases, not just in the vast majority of them. Where I disagree with her slightly is that this is a policy decision, not a medical decision. Whether assessments should be face to face, either in every case or that the presumption should be that they are, is a policy decision, rightly for Parliament, not for clinicians. It should be informed by listening to clinicians, but it should also be informed by listening to evidence from the patient experience, so ably set out by the noble Baronesses, Lady Smith and Lady Berger.

The noble and learned Baroness, Lady Butler-Sloss, gave her own testimony that she has had to make decisions in these cases, and I was very struck by her view that we should certainly have a presumption that these decisions should be taken face to face. I was very struck by listening to her on previous occasions. Her experience on these matters carries a lot of weight. I also listened very carefully to the noble Lord, Lord Carlile, when he set out the GMC’s advice. Decisions for patients with a terminal illness about a course of action that will lead to the end of their life seem to me to fall squarely within the set of cases where you would want a face-to-face appointment, but equally I felt there was good counsel for us and challenge from the noble Baronesses, Lady Jay, Lady Pidgeon and Lady Blackstone, to think of the patient, the person who has the terminal illness who wants a decision. They were right to challenge us on that.

That is why I think, if we look at the balance of amendments in this group, they are very helpful because they set out a span of choices for your Lordships, from saying that every decision has to be taken in person, which I think would be wrong for the reasons that the three noble Baronesses set out, that you have to look at the patient’s views, but equally, I think the present wording is too loose and does not set out a presumption that they should be face to face. I would be very grateful to hear the view of the noble and learned Lord, Lord Falconer, on where he thinks he is likely to settle because that will be helpful for all of us when thinking about whether we have to table further amendments. It seems to be a presumption that it is face to face, but with a very limited set of circumstances where it can be not face to face. But we should not accept the presumption in a patient-centred model that the patient always has to go and see the panel or the doctors. It should absolutely be, particularly because so many people in these circumstances are going to be in poor health, that we think of a system that makes sure that when it comes to the panel at least one member of the panel, the independent person, is physically present.

That is important. These amendments touch on two parts of Clause 17. The first is subsection (6), which states:

“The duty under subsection (4)(b) to hear from the person to whom the referral relates does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person”.


That means there are circumstances where the panel does not have to hear from the person at all: not by videolink, not in person, not by pre-recorded video, not at all. That was confirmed to me when the noble and learned Lord, Lord Falconer, and I were doing a media programme—I think it was “The Week in Westminster”—where I challenged him on this. He confirmed that there were circumstances in which a decision could be taken for someone to seek assisted suicide and the panel would never have to see them at all. I do not think that is right.

The other subsection these amendments touch on is subsection (5), which states:

“Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material”.


That was inserted in the House of Commons by a Back-Bench amendment. It was not very well debated. The fact that it is pre-recorded means that it gets rid of any opportunity for questioning or challenge. The problem I have with the language there is that it says “medical reasons”, it does not say “medical reasons pertaining to the patient”. This is my last point—

[Lord Empey (UUP)]

We are forgetting that we can use the telephone in this circumstance. It is not even that you would have sight of the person, but you could have a pre-recorded telephone call.

[Lord Harper (Con)]

I am grateful for that. The final point I want to make is that we had experience during the pandemic of too many vulnerable people, people with learning disabilities, having “do not resuscitate” notices put on them by doctors. I do not want to see a system where, if we had a similar circumstance again, these sorts of decisions would be taken remotely at speed. We know from our deliberations in this House, and it is my experience in the other place, that there is no substitute for doing these things face to face where you can challenge people, ask questions, put people under that challenge and get good answers to make good decisions.

I commend this group of amendments to your Lordships, and I look forward to hearing the response of the noble and learned Lord, Lord Falconer.

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I make no comment on other amendments in this group. As noble Lords are aware, the amendments have not had technical drafting support from officials. Further revision and corresponding amendments would therefore need to provide consistent and coherent terminology throughout the Bill.

[Lord Empey (UUP)]

In reference to Amendment 60, if I picked the Minister up correctly, she said that establishing where an individual was in the world would put a burden on the medical people involved. Surely if they are in touch with them, they can at least ask them where they are.

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There is therefore at the very least an ambiguity and, at a greater level, a grave injustice, if the noble and learned Lord, Lord Falconer, does not agree to clarify what I think is a point he would probably agree with in principle. That is why I support what was said earlier.

[Lord Empey (UUP)]

My Lords, this has been a very interesting debate. Many Members perhaps do not appreciate the extent of the potential, and the length of time over which that potential could remain open.

When I was Minister for Enterprise in Belfast and represented Belfast East as an elected Member, that area had vast numbers of people suffering from asbestosis, mesothelioma, pleural plaques and so on, because it was an industrial area. We had shipbuilding, aircraft-building and electrical work, and asbestos was involved in wiring. The workforce used to play snowballs with it; that was the extent of it.

What emerged—and this is the important point, as I am sure the noble and learned Lord, Lord Falconer, will understand—is that first, a lot of companies, such as Turner & Newell, a very famous company, had gone out of business and, in some cases, their insurers had gone with them because of the extent of the claims. What people need to understand, and the reason why the Northern Ireland Government got involved, is that, in some cases, the state had owned those companies at one point, so the state was the employer. Therefore, there was a direct line of liability between the client, the company and, ultimately, the state. Now, the state has owned a number of businesses on and off over the years, all over the UK. This is not confined to asbestosis or related diseases; as the noble Lord, Lord Harper, mentioned, there is the whole question of the Armed Forces, for example.

To give a sense of the spread of all this, it can take up to 30 years before a disease such as asbestosis becomes obvious, and for mesothelioma and many of these diseases, there is no cure; it is very brutal, and it can be very quick. It emerged that, when workers came home, their clothing passed the asbestos on to their spouses and children. I remember many years ago setting money aside, up to 2050, to cover potential claims arising from the state having owned parts of some companies over the years. So in the absence of any insurer or employer, the state ended up in that position.

These amendments have opened up a whole new frontier that we have to get sorted out. The risk, obviously, is that those dependants will therefore have absolutely no recompense: not only will their relative have died a pretty brutal death—as the noble Lord, Lord Hendy, knows from his experience—but they will be left destitute. This needs sorting out.

[Baroness Finlay of Llandaff (CB)]

I am most grateful to the noble Lord, Lord Hendy, with whom I have had conversations going back to last September. I have looked after many patients dying of mesothelioma, and it seemed to be a loophole if the chain of causation was not completely intact.

We had advice in several calls from extremely wise sources—I will not list them all—and I learned a great deal about the legal side and the Fatal Accidents Act. I have some questions for the noble and learned Lord, whom I met with yesterday. He assured me that he would be bringing forward amendments, but unfortunately, I did not see them at the time; it was only much later that they appeared in my inbox. I have not been able to go through them in detail to examine the precise wording.

The concern is that unless this is watertight, these companies will wriggle out of any type of compensation. Therefore, what is the position of coronial oversight in these cases, where perhaps even the diagnosis might be questioned by a company, and it could be difficult for a family to provide the evidence it might be demanding? One does not know. Also, what is the position regarding the life insurance policy of the individual when they have an industrial disease and there is a chain of causation? They might be eligible, one hopes, for compensation. That needs to be followed through. However, somebody could claim that in some way, the chain of causation had been broken.

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[Baroness Merron (Lab)]

My Lords, I will be very brief. The Government do not have any major technical or operational workability concerns on the amendments tabled by the noble Lord, Lord Sandhurst, and the noble Lord, Lord Harper, which were originally tabled, as we heard, by my noble friend Lord Hendy. To make the usual point, as noble Lords will be aware, these amendments have not had technical drafting support from officials, so further revision and corresponding amendments would be needed to provide consistent and coherent terminology throughout the Bill.

[Lord Empey (UUP)]

My Lords, I raised the point that the state could be liable in cases where the companies people worked for were nationalised or owned by the state. It seems not unreasonable that in due course the Minister could express a view on behalf of the Government, because the Government could be directly—and financially—affected by the consequences of the Bill.

[Baroness Merron (Lab)]

I appreciate the point the noble Lord is making—and indeed the points that the noble Earl, Lord Howe, made. However, as your Lordships’ House knows, I correctly restrict myself to commentary on what is before us. Should the Bill include this amendment, we will then respond at the appropriate time.