Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

2nd reading
Friday 12th September 2025 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

That the Bill be now read a second time.

Relevant documents: 32nd Report from the Delegated Powers Committee and 12th Report from the Constitution Committee.

[Lord Falconer of Thoroton (Lab)]

My Lords, this issue has been debated for years, particularly in this House. The House is full this morning; that reflects the seriousness with which your Lordships take this issue. For the first time, we have before us a Bill on assisted dying, which has come from the other place. I know that we will do what we do so well, which is scrutinise. This is a historic occasion.

The current law is confused, causes terrible suffering, and lacks compassion and safeguards. People must be at the heart of this debate. The Government’s own estimate is that, if the law was changed to introduce assisted dying, less than 1% of deaths would be assisted after 10 years. However, it is right that we allow assisted dying as an option for those who, despite the best palliative care, still want an assisted death.

Palliative care cannot alleviate the pain of everyone. Lucy Davenport’s husband, Tom, had an agonising death from bile duct cancer, despite receiving excellent care in a hospice. He died by choking on faecal vomit:

“The look on Tom’s face of terror and horror, that’s going to be with us forever. He would be horrified to think that was our last memory of him”.


For many others, it is not about pain; it is about alleviating fear or bringing to an end the terrible and continuing loss of dignity and control, which has no end, except in death.

If the patient wants to take control of the time of their own death, they are, under the current law, legally entitled to take their own life, but they must do so without any assistance, often horribly. Many of your Lordships were with me in the Archbishops’ Room in Millbank House when the widow of a man who had a lethal brain tumour described how she found her husband’s body in their garden, having stabbed himself in the heart.

Others go to Dignitas, often alone, because those who accompany them from England fear the consequences of the criminal law. Catie Fenner’s mother, Alison, had motor neurone disease and died at Dignitas in Switzerland. Catie could not join her for fear of a police investigation. She found out about the moment her mum had died by text. Catie says:

“We didn’t see her go, we didn’t hold her hand”.


The DPP’s guidelines make it clear that anyone with medical qualifications who provides assistance will certainly be prosecuted. Where the authorities learn that somebody has provided assistance or they suspect that they have, they investigate that person, invariably with compassion. But no matter how kind the process of investigation, it is an agony for the person investigated. It can go on for months, and sometimes for over a year. They fear prosecution as they grieve for the person they love.

It is right and possible to pass a law which allows those who are terminally ill to die with dignity and at a time of their own choosing, without the fear and the horror I have described and with appropriate safeguards in law, not as currently, where people, in order to have a death at their own choosing, seek to evade the law and therefore evade the protections. Some 300 million people in the world live in jurisdictions where there is such a law. There must be safeguards. The Bill we are debating today has benefited from those other jurisdictions. It is the most safeguarded assisted dying measure in the world, particularly in the light of the safeguards inserted in the Commons.

Key provisions in the Bill are as follows. The criteria for requesting assistance is that the person is terminally ill, has the mental capacity to make the decision, is 18 or over, is resident in England and Wales for the last 12 months, and is registered with a GP in England or Wales. The safeguards are designed to ensure that the patient has a clear, settled and informed wish to end their life and has made their decision voluntarily and without coercion. “Terminally ill” is defined as having

“an inevitably progressive … disease which cannot be reversed by treatment”,

with a reasonable expectation of death “within six months”.

The Bill is for the terminally ill only. It is about how you die when you are dying already. It is not for those with unbearable suffering, irrespective of their life expectancy, as in some countries, such as Canada. The Bill is clear that a person is not to be considered a person who is terminally ill if they are a person with only a disability or a mental disorder, or both.

Safeguards are layered throughout the process as set out in the Bill. First, a doctor in a preliminary conversation has to lay out all the care options, including the palliative care available in the context of the likely progress of the illness. Then two doctors, independent of each other, have to be satisfied that the illness is terminal within six months, that the patient has the mental capacity to make the decision, and finally, that it is their firm and settled wish arrived at without coercion. After that, a panel comprising a senior judge or King’s Counsel, a psychiatrist and a social worker has to be satisfied of the same things as the two doctors. If they are, then and only then can medical assistance be given.

I acknowledge that some think the process is too complicated and excludes too many people. On complicatedness, I am very conscious of the words of the Chief Medical Officer, Chris Whitty, who gave evidence in the other place that we should not create a “bureaucratic thicket”, and I very much hope we have avoided that. But it is vital that we should have a Bill that is robust in its safeguards in a matter of this gravity.

Disabled groups express fears that they may be vulnerable to being overpersuaded into an assisted death. I well understand the fears of the disabled in their dealing with healthcare providers, but the evidence strongly suggests that the disabled want the same rights as the rest of us when they become terminally ill. The Bill gives them excellent protection. There may be risks for them in other interactions with healthcare, but not in relation to this issue.

The multidisciplinary panel, which I have referred to, was added by amendment in Committee in the Commons, replacing the High Court judge alone. The panel provides a better safeguard than a judge alone because of the wider experience of the panel psychiatrist and social worker, but accompanied by the retention of the senior judge.

Beyond the current safeguards, some people have sought a compulsory psychiatric assessment for everybody. I do not believe that that is necessary or appropriate. The Bill provides that if either of the doctors have a doubt on capacity, they must refer the patient to a qualified psychiatrist. The panel includes a psychiatrist, and the panel can, if it wishes, require more psychiatric assessment.

No doctor or other person is required to participate in the provision of assistance under the Bill. Only those who opt in to participate in the work of the Bill need play any part. The Bill is explicit and wide in making that clear and provides extensive employment protections for those who do not wish to participate.

There are those who argue that it may be a terminal illness Bill now but its provisions will be expanded. Any such change would require primary legislation, and the experience of all other jurisdictions is that where they start with a terminal illness Bill such as this one, that is where they end. The Health and Social Care Select Committee in the Commons conducted an inquiry into assisted dying, ending in March 2024. Its conclusion on this issue was as follows:

“We … conclude that jurisdictions which have introduced”


assisted dying

“on the basis of terminal illness have not changed the law to include eligibility on the basis of ‘unbearable suffering’”.

It said that none of the jurisdictions which have introduced a terminal illness Bill has revoked it—and they have been there for as long as almost 30 years.

The Bill provides that for England:

“The Secretary of State must by regulations make provision securing that arrangements are made for the provision of voluntary assisted dying services”,


and that in Wales, Welsh Ministers “may” make such regulations. The difference between “must” and “may” is that we respect the devolution settlement. It is for Ministers in Wales to make their own decision in relation to that.

Concern is sometimes expressed about the cost of an assisted dying service and its effect on NHS provision. I draw your Lordships’ attention—please read the 151-page impact assessment that the Department of Health has produced—to the fact that the current budget of the National Health Service is £188 billion. On the central estimate as to what the service will cost once it is up and running, the impact assessment says it will be approximately £25 million a year. The figure does not take account of the annual savings calculated in the impact assessment, which exceed the figure of £25 million.

The NHS should have all the time it needs to introduce the service properly. It has said that it may need up to four years. The Bill has a backstop of being brought into effect after four years. We reflect what we have been told in relation to that.

The provision of assisted dying is not an alternative to palliative care. The Commons Select Committee report did not suggest that the availability of assisted dying compromised or reduced the availability of palliative care: rather, the reverse. Its conclusion was that

“we did not see any indications of palliative and end-of-life care deteriorating in quality or provision following the introduction of”

assisted dying, and

“indeed, the introduction of”

assisted dying

“has been linked with an improvement in palliative care in several jurisdictions.

The next stage is for this Bill to be scrutinised by your Lordships’ House in the normal way. I have been intimately involved with the Bill since it started its journey. This is a Private Member’s Bill, invariably and inevitably, because it is a matter of conscience. Once the Bill passed its Second Reading in the Commons, the sponsor of the Bill in the Commons, the honourable Member for Spen Valley and I, as the sponsor of the Bill in your Lordships’ House, have been provided with very substantial support from the Civil Service machine to ensure that the Bill is workable. The Government, in providing that support, did not forgo their neutrality. Rather, they provided comprehensive policy and drafting support.

I have long experience of shepherding Government Bills through Parliament. The support that I have had in relation to this Bill is second to none. The Bill passed its Third Reading in the Commons in June after more than 100 hours of debate, including 29 sittings in Bill Committee, two full days of debate on Report on the Floor of the House and a full day’s debate at both Second Reading and Third Reading.

I have to say that that compares very favourably. It is almost double the time given to scrutiny in the other place of the Children’s Wellbeing and Schools Bill, which we are dealing with now. Altogether, the Bill Committee considered and debated over 600 amendments, accepting around a quarter of them. Over 100 amendments were made in the sponsor’s name, and more than 30 amendments that had been tabled by MPs who voted against the Bill were passed.

I very briefly turn to the Motion in the name of the noble Lords, Lord Forsyth and Lord Bridges, and the amendment in the name of my noble friend Lady Berger. The noble Lords, Lord Forsyth and Lord Bridges, refer to the Delegated Powers Committee report, which I have considered along with that from the Constitution Committee. I will be tabling amendments to deal with many of the points that both committees raise. They always help us in our deliberations.

There are some amendments which I will not be able to accept: for example, that your Lordships specify the drugs to be used in the process. Medical advances come thick and fast. This legislation is designed to last for the ages. Civil Service support is mentioned in the amendment from the noble Lords, Lord Forsyth and Lord Bridges: I have already dealt with that. With regard to the availability of government time, which is also raised, I am confident, after conversations with the Government, that your Lordships will have more than enough time to scrutinise this Bill thoroughly—as long as, of course, we start our process of scrutiny in the ordinary course of business after we have given it a Second Reading.

I turn to the amendment from my noble friend Lady Berger. Unfortunately, I only got notice of this last night. I did not have the opportunity after that of talking to my noble friend, and she had not discussed it with me previously. I make no criticism of her, but these are my initial thoughts in relation to it. It is proposed that a Select Committee precede the Committee of the Whole House. It has been clear for some time that at least seven days will be required to complete the passage of the Bill: four days in Committee, two days on Report and a day for Third Reading. There will then need to be ping-pong between the two Houses. If the process cannot start until January, which is what my noble friend’s amendment suggests, and must complete by the spring—the spring is when the Government say this Session will end—we will have to fit seven Fridays in between 9 January and 31 March. Having regard to recesses, the need for the normal intervals and the fact that other business will be conducted on some of those Fridays, so it cannot be every Friday, I am afraid that it is not possible to do that. I will therefore be opposing that amendment on the basis that it is not a workable timetable. That does not rule out a Select Committee running in parallel to the Committee stage, and I would be more than happy to discuss such a proposal with my noble friend, or anybody else who has such a proposal to make. But we must do our job in this House, and our job is not to frustrate, it is to scrutinise.

The Bill has been passed by the Commons. The decision on whether to change the law in our democracy should be for the elected representatives. We should improve where we can, but we should respect the primacy of the Commons. There are so many people who have been following the debate who recall the agonising death of a loved one or, like the people I mentioned at the beginning of this speech, fear what their own death might be like. The public want this and the elected House has expressed its will. I am confident that your Lordships will now do what you have done so well in the past. Whatever view we might take on the decision that the Commons arrived at, the way the debate was conducted there enhanced the reputation of Parliament. I hope and believe that we can embark on our scrutiny in a manner that will reflect just as well on our House.

The Bill before us has already given hope to those with personal experience of the injustice of the current law. They will be looking to us to play our proper role. If we can improve it further, we should and we will have done our duty. I commend this Bill to the House and I beg to move.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

2nd reading
Friday 19th September 2025 Lords Chamber

Moved on Friday 12 September by

[Lord Falconer of Thoroton]

That the Bill be now read a second time.

Debate on the amendment to the amendment to the Motion resumed.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

My Lords, I draw attention to my entry in the Register of Lords’ Interests, which refers to the facts that I have an assistant funded by Bernard Lewis to assist me in the conduct of this Bill and that Dignity in Dying funded the printing of the literature that I sent to your Lordships in connection with the Bill. I apologise for not mentioning this in my opening speech.

This has been a debate of the highest quality, probably the highest quality I have heard in 28 years in this House. Your Lordships brought passion, expertise and wisdom to the issue. I thought that every single speech that was made rose to the gravity of the occasion. I would wish to refer to every speech, but I cannot.

I pay particular tribute, however, to those of your Lordships on both sides—some people have mentioned them—who have identified their own personal suffering in relation to this. I pay tribute to all of those speeches and will mention just two of them. First, the speech of the noble Baroness, Lady Prentis of Banbury, was very striking. She will know that she has the wishes of the whole House with her. I also mention the speech of the noble Baroness, Lady Falkner of Margravine. She, too, has the wishes of the whole House with her.

The debate shows beyond doubt that this House will bring both expertise and human understanding to the important task of scrutiny that we must now undertake. I express genuinely my gratitude to your Lordships’ Constitution Committee and the Delegated Powers and Regulatory Reform Committee respectively. As I indicated in my opening speech, I will be bringing forward amendments to deal with many of the recommendations that they raise. I have to say that my experience as a Minister was that both those committees frequently made recommendations of the sort that have been made here requiring changes. I very much hope that, in consultation with the Government, I will be able to make those changes.

I also mention the status of this Bill. This is a Private Member’s Bill because it is a matter of conscience. No major political party agrees on whether or not it supports assisted dying, and I do not find that surprising. It has to remain a Private Member’s Bill for that reason. I should say, as my noble friend Lady Merron referred to, I have had assistance, as has my friend in the other place, the Member for Spen Valley, from the Government—civil servants and lawyers—seeking to ensure that the Bill is workable. That explains very many of the changes that have taken place. But, ultimately, this is a Private Member’s Bill and must be treated as such.

I believe that the Commons was very capable and proved able to properly scrutinise this Bill. It gave the Bill 100 hours of scrutiny. At the same time in this House, we are looking at the Children’s Wellbeing and Schools Bill, which, as it happens, is longer, and it got 40 hours of scrutiny. We are looking at a Bill for which, in the Commons, there were no guillotines, so every clause was debated, not just those that were reached before the guillotine fell. We are looking at a Bill that has had a very large number of Select Committees look at it. The last one reported in the Commons in March 2024. We have a job of work to do, but I earnestly ask your Lordships not to approach this Bill on the basis that it has not been properly scrutinised in the other place.

[Baroness O'Loan (CB)]

I thank the noble and learned Lord for yielding. I simply wanted to say that a number of Members of the other place have said that the Bill did not receive proper scrutiny in the other place. They have also said that they expected that it would receive scrutiny in this place because that is what we do. That is profoundly important, and I do not think that what the noble and learned Lord just said is actually correct. I would also say that there were a number of amendments tabled and a number of MPs who wanted to speak who were not permitted to do so. That is reflective of the fact that the Bill did not receive proper scrutiny in the other place.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble Baroness for her intervention. I have laid before the House the facts. I recognise that some Members of Parliament say that the Bill was not given proper scrutiny. I wonder if those were Members of Parliament who did not agree with the conclusion—I do not know. I have laid before your Lordships the time that was spent and the fact that it got more scrutiny than government Bills.

The essence of this Bill is that those who are terminally ill—and that means that they have a diagnosis that they will die within the next six months—should have the option, subject to safeguards, to be assisted to take their own life. One of the features of this debate was the personal experience that so many people have had of how, had that option been available, it would have ended terrible suffering. That suffering is not often about the pain but about the lack of dignity and the profound desire to keep control, because that is what people want.

I believe, from my own experience and from talking to so many people, that having that option is important. The points that have been made against it, which I have listened to incredibly carefully, are, in essence, not that people should not have that choice but that it brings dangers with it. The dangers are, first, that people will be overpersuaded and, secondly, that it will affect society in other ways.

On the idea that people will be overpersuaded, the Bill provides for the following: first, a conversation with the doctor in which all the options, including the palliative care options, are laid out; secondly, that a doctor decides that it is a free choice; thirdly, that a second doctor decides that it is a free choice; and, fourthly, that a panel, consisting of a senior judge or a King’s Counsel, a psychiatrist and a social worker, concludes that the person is not being coerced, that they are capable of making the decision and that it is their free choice. As it happens, that is probably the most safeguarded procedure in the whole of our healthcare system. It is certainly the most safeguarded process when compared with terminal illness Acts in other countries in the world.

I profoundly believe that people should have this choice—a profound belief that is based not on either my spirituality or my lack of spirituality, but on looking at the evidence from other countries that this will not lead to people being overpersuaded. I have in mind those countries that already have a terminal illness Act. The one that has been in force for longest is the one in Oregon, but there are many other states in the United States of America that have terminal illness Acts that have been in force for 20 years and more. They do not have those safeguards. They do have annual reports and record-keeping of the highest sort about assisted death. They show no evidence of the coercion that some noble Lords referred to in this debate.

I would have expected that, if there were real evidence of that, somebody in the course of the debate would have referred to a case from one of those countries where there is a terminal illness Act showing that there was coercion. There was none. I am convinced, first, that the Bill has had proper scrutiny in the other place and, secondly, that there is no real danger in relation to coercion. Thirdly, I completely accept the point made by noble Lords who said in this debate that they wanted more palliative care—I want more palliative care, and we should do everything we can to promote it. However, as so many people said, it is not either/or—it is both.

Some 75% of people in Victoria, Australia, who have had an assisted death came from palliative care, and 92% in Oregon came from palliative care. The Select Committee in the Commons to which I referred, which reported in 2024, said that palliative care in many jurisdictions went up in terms of its resources. In answer to the question that was raised about what the effect will be on palliative care: on the basis of other jurisdictions, it will get better. In fact, the debate here has provoked the Government to spend more money on palliative care.

Many noble Lords have talked about language. I take no point about language. I simply say this. For over 10 years of having been engaged in this debate, I have found that, for people who are terminally ill and want an assisted death, nothing upsets them more than saying that that is suicide. They hate that because of the impact it has on those they leave behind. What they feel is that they are dying anyway, and what they want is some degree of control over when and how it will happen.

I turn briefly to what happens next. I very much welcome my noble friend Lady Berger’s Motion to set up a Select Committee that can hear evidence. I very much welcome that it is time-limited, because, as my noble friend and I indicated in the letter we sent to every Peer, it allows for the Bill to go through all its phases after 7 November. I will therefore support my noble friend’s Motion to set up a Select Committee.

We have a job of work to do. I agree with everybody that, plainly, this House must give the Bill a Second Reading. We must listen to the evidence that my noble friend Lady Berger’s Select Committee will supply, and then we must do what we do so well, which is scrutinise and amend the Bill as necessary, and then send it back to the other place for a decision.

I have heard some noble Lords say, “Oh well, we can say no to this Bill”. Ultimately, on an issue such as this in our system, somebody has to decide. It is not the electorate because it is never in anybody’s manifesto, with the exception of the Greens. Therefore, Parliament has to decide. Ultimately, in our system, that means it will have to be those who are elected—not those who are unelected—who make that decision.

I end by expressing my profound gratitude to the House for the attention and quality of the debate it gave to the Bill. I commend this Bill to the House.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

That the bill be committed to a Committee of the Whole House.

[Lord Falconer of Thoroton (Lab)]

I beg to move.

Amendment to the Motion

Moved by

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

That the House do now resolve itself into Committee.

[Lord Shinkwin (Con)]

My Lords, I apologise, but I rise to raise a procedural issue crucial to the reputation of your Lordships’ House. When I blocked out my diary for the Fridays scheduled for Committee on this Bill, I did so in good faith. I assumed not only that your Lordships’ House would recognise the value of the views of Members with lifelong lived experience of disability, but that steps would be taken to ensure that those views were heard on an equal and non-discriminatory basis. That would be entirely in keeping with the Equality Act 2010, which placed on organisations a legal duty to make reasonable adjustments on account of disability in, among other things, the way in which they work.

In the belief that your Lordships’ House and the Government will appreciate the crucial importance of our being seen to set an example and uphold the law, which we passed and which we expect others to abide by, I emailed the Government Chief Whip and wrote to the Prime Minister to explain that, because of my disability, I need to leave by 3 pm in order to catch my flight home. I requested an assurance that the House would not sit beyond 3 pm, which is of course the time by when the House normally rises on a sitting Friday. Regrettably, I have been given no such assurance. Instead, the Government are using a procedural technicality as a feeble fig leaf for discrimination against me as one of the House’s Members—one of its few Members—with lifelong disability. I do not believe it is beyond the wit or the will of the Government, or indeed your Lordships’ House, to ensure that we rise by 3 pm so that I can participate today and on other sitting Fridays on an equal and non-discriminatory basis. Given that not one organisation of or for disabled people supports this Bill, surely it is right that all of us—every one of us—are enabled to do our duty of subjecting this monumentally significant Bill to the forensic scrutiny it requires.

In conclusion, do we really want to send the message to those who are following our proceedings today, “Do as we say, not as we do”? That would be shameful and it would be unworthy of your Lordships’ House. For our own sake, I urge the House not to discriminate against me as one of the very few Members born disabled. I therefore ask that the House rises by 3pm.

--- Later in debate ---

[Baroness Merron (Lab)]

I am sure it would be expected that safety is absolutely paramount. The point I am making—and I look forward to hearing from my noble and learned friend—is that our position in government here is not to deal with matters of policy. As I have said, we are restricted to areas to which any Government would be restricted.

We will absolutely work with the Welsh Government, NHS England and the NHS in Wales to understand the impact of any changes to the law and the provision of healthcare services in Wales, during the coming stages of the Bill.

[Lord Falconer of Thoroton (Lab)]

My Lords, I make a declaration of interest: I have an assistant who is funded by Mr Bernard Lewis and who helps me on this Bill. I make a declaration that Dignity in Dying paid for the printing of the material that was circulated to Peers in my name before this process commenced.

I compliment the noble Baroness, Lady Coffey, on the short way that she introduced the important issue. I very much hope that I can put to rest most of the misconceptions that were expressed during this debate.

As everybody agrees, criminal law is not devolved to the Welsh Senedd. Therefore, any change in criminal law has to come from the UK Parliament. You cannot proceed with assisted dying without changing the criminal law. Therefore, the UK Parliament has to provide a legislative change for that.

Healthcare is rightly devolved to the Welsh Ministers and the Senedd. The Bill makes provision in England for Ministers to produce regulations on how assisted dying will be implemented and regulated in England. Clause 42 requires Ministers to produce such regulations. It is wrong, as part of the devolution settlement, to require Welsh Ministers who are responsible for health in Wales to do that. It is for the Welsh Government to decide what provision to make. Unlike Clause 41, which relates to England, Welsh Ministers are given the option to introduce such regulations as they see fit. Those regulations will permit the assisted dying process to be introduced in Wales, in the National Health Service, and for Welsh Ministers and the Welsh Government to provide whatever provision for it in regulations that they see fit.

The noble Lord, Lord Wolfson, asked why we are legislating for England and Wales but not Scotland at the same time. It is because we are doing exactly what the noble Lord, Lord Gove, asked me to do—and I am so glad he did—which is to respect the devolution settlement. Will the noble Lord let me finish? Then I will come back to him.

The way this structure works is that, first, we in this Parliament determine whether the criminal law should be changed. Secondly, the Welsh Government are given the power to introduce regulations. That power should normally be given to Welsh Ministers by an Act of the Senedd. Therefore, a legislative consent Motion has been proffered by the Welsh Government for the Senedd to decide whether it would be willing to give us consent to legislate in an area that would normally be legislated for in the Senedd.

The LCM—legislative consent Motion—in the Welsh Senedd covers the following. I give these details for noble Lords to consider them at their leisure: Clause 40, which gives Welsh Ministers power to issue guidance; Clause 42, which gives Welsh Ministers power to regulate how this is to be introduced in the health service in Wales and with what regulations; Clause 51, which gives the Welsh Government power to talk about and make regulations about the Welsh language; Clause 54, which gives them a general power to make regulations; and Clause 58, which gives the Welsh Ministers and the Welsh Government power to introduce certain of the provisions.

The sponsor in the other place and I have discussed this arrangement with the Welsh Government, and by that I mean Welsh Ministers and Welsh officials. We have done what the Welsh Government would wish us to do to respect devolution. We have taken these powers in the Bill, subject to Parliament, so that there is not a position where, after this Bill is passed, Welsh Ministers lack the power to introduce regulations if they choose to do so.

I have listened to this torrent of points about Wales saying it has not been thought out. I say with suitable humility that we have thought it out and sought to reflect what good devolution practice would require. I do not invite people to come back, but please think about what I have said and consider—

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Hold on. Consider whether it represents the right position.

Can I just deal with two other points? First, the noble Baroness, Lady Smith, in a very clear speech, said maybe one should amend the Bill to give the Welsh Senedd the power to make a decision about the criminal law in relation to assisted dying. It was a point I thought the noble and learned Lord, Lord Thomas of Cwmgiedd, was sort of flirting with. We have not taken that view. We have taken the view that the right way to deal with this is in accordance with the existing devolution settlement.

If the noble Lord, Lord Gove, has not been satisfied with my answer so far, he may continue with his question.

[Lord Gove (Con)]

I am very grateful to the noble Lord for the clarity there. As a broad point, the devolution settlement encompasses not just inter-governmental relations but respect for devolved legislatures and their committees. With respect to that, the Legislation, Justice and Constitution Committee of the Senedd has expressed concern that the Welsh Government have said that only a narrow number of clauses in the Bill should be subject to commencement by Welsh Ministers in the Senedd alone and has expressed concern about the lack of detail from the Welsh Government on these matters. I would be very interested in the noble and learned Lord’s views about the adequacy of both the Welsh Government and the UK Government’s sharing of information. More broadly, the committee also pointed out that there is dubiety at the very least about whether Clauses 42(1), 42(2), 51(2) and 51(3) of the Bill will be implemented only by regulation of Welsh Ministers or will be subject to automatic commencement through the automatic commencement backstop in due course.

[Lord Falconer of Thoroton (Lab)]

In relation to the noble Lord’s first point, the Legislation, Justice and Constitution Committee’s point about the width of the legislative consent Motion is that it wants the LCM to extend not just to the health provisions but also to those that relate to the change in the criminal law and the safeguards. It argues that those changes in the criminal law should also be subject to it. My view—and it is a view I think shared by the Welsh Government—is that, no, you do not need a legislative consent Motion for the UK Parliament to do that which it is entitled to do, which is to change the criminal law. I give way to the noble Lord, Lord Harper.

[Lord Harper (Con)]

I am very grateful—

[Lord Falconer of Thoroton (Lab)]

Sorry, the noble Lord, Lord Gove, asked a second question which I did not answer.

[Lord Gove (Con)]

I am very grateful for that clarity, because it is clear that as a result of that, even though Westminster will be operating within its own legislative competence, it will be doing so in a way that violates the expressed wish of the committee. Again, as I pointed out in the previous section of this debate, it is also the expressed wish of many within Welsh Labour to see criminal justice devolved, but put that to one side.

The other key question was: can Welsh Ministers commence Clauses 42(1), 42(2), 51(2) and 51(3) of the Bill by their regulations only, or might the automatic commencement backstop apply in those cases?

[Lord Falconer of Thoroton (Lab)]

It will depend on the decision made by the Welsh Ministers. I give way to the noble Lord, Lord Harper.

[Lord Harper (Con)]

I am grateful to the noble and learned Lord. I have listened very carefully to what he said, and I absolutely accept that he has conducted extensive engagement with Welsh Ministers based, perfectly understandably, on the framework of the Bill as he and the sponsor in the Commons have drafted it.

The noble and learned Lord will know that one of the concerns of many in your Lordships’ House is the extent of Ministers’ powers and the extent to which some of the regulations should be put in the legislation. I am sure, as Committee progresses, we will have those debates. If it ends up being the wish of this Parliament that more of the detail about how the legislation will be implemented is put in primary legislation, how will we do that in a way that satisfies the desires perhaps of this Parliament but does not trespass, given the way he has chosen to set out the framework, over the devolution framework? Therefore, did he consider just devolving the power to the Welsh Senedd to change the criminal law in this narrow case? Then the Senedd, as the noble Baroness said, would have the full power to change the law and implement it. I accept that what he has done makes sense in the way he has drafted the Bill, but if we significantly change the Bill, I think that will cause a real problem with how it is implemented.

[Lord Falconer of Thoroton (Lab)]

I am not sure I understood the question. As far as devolution is concerned, I do not think the question of regulations on the face of the Bill is the right issue. The right issue is who has power to produce those regulations and does that offend against the devolution settlement. If he has a question about there being not enough detail in relation to other areas, I am happy to answer that, but this is not for this group. Those are my submissions.

[Lord Harper (Con)]

Let me ask him the question.

--- Later in debate ---

[Lord Harper (Con)]

He said he did not really understand my question. If we set out in the Bill some of the details he currently envisages are in regulations and therefore the House decides on them as opposed to them being for Ministers in either the UK Government or the Welsh Government, that will cause a problem for the approach to devolution that he has conducted. I just wondered whether he had thought about that. That was my question, and I am sorry for not expressing it clearly.

[Lord Falconer of Thoroton (Lab)]

I am not sure the noble Lord has quite understood what I have said. It is for the regulations in so far as they deal with the Welsh health service to be delivered by Welsh Ministers, so it is quite inappropriate for us to put them in this Bill.

[Baroness Coffey (Con)]

My Lords, I was brief at the start because I wanted to give the Minister the chance to be transparent for the benefit of this House. I am sorry to say that I hope that the letter will give that, but I am concerned that it will not. The reason I say that has been well explained in the discussions in the Welsh Senedd. In the supplementary to the latest legislative consent memorandum, it says:

“The UKG has not confirmed their position as to whether they believe the consent of the Senedd is required for this Bill as amended at the House of Commons Report stage but have acknowledged that some clauses do”.


When will the Government share with this House what they think is devolved and what is reserved? Why are they reluctant to do so? This is what I am struggling to understand. I have been asked outside this Chamber why am I bothered about Wales. I care about Wales anyway. It may not be widely known, but I went to school in Wales, I have family in Wales and both my parents are buried in Wales. But I would say that I am also here as a legislator.

Having been an MP, a Minister and a Cabinet Minister, I am used to being taken to court on details of legislation, and to the back and forth with devolved Administrations. I am not doing this simply to try to be awkward; we are trying to define the legislation. The Legislation, Justice and Constitution Committee in the Welsh Senedd believes that Clause 1 should be devolved. To give another example, people might be aware of the issue of smacking. Basically, Wales was able to use its child welfare powers and then made a request. We will come on to this later in the debate about amending the Government of Wales Act, I think. If we recognise that the only context under this Bill in which there can be help with assisted death—assisted suicide—has to be healthcare settings then surely there is something there about the Welsh Senedd having the opportunity, through later amendments, to make that determination in the first place.

I mention that now because my noble friend Lord Markham and the noble and learned Lord, Lord Thomas, said we should be deciding the principle of whether this Bill should be seen in that regard. Actually, recognising the whole, I am strongly of the view that this should be taken out of this Bill through an amendment to the Government of Wales Act. That is to some extent why I put tabled this. Will the Minister confirm the Government’s position on Clause 1? I would be very happy to have an answer from the noble and learned Lord, Lord Falconer of Thoroton, on whether he believes that. The Welsh Parliament certainly does.

Further, will the Minister put in the Library the minutes of the meetings so we can understand what is happening between the two Governments about the practicality and legality of this aspect of the Bill? I know that Ministers will, understandably, often say that it is all legally privileged. Those of us who have been in government know that you tend to get small aspects of legal privilege and lots of policy content in regarding and summarising, which is not legally privileged. That is where I hope that we can get this transparency from the Minister and, if necessary, the sponsor—I do not quite understand this; it is one of the most complicated Private Members’ Bills I have ever seen—and, actually, just an answer to whether Clause 1 is reserved or not.

--- Later in debate ---

[Baroness Coffey (Con)]

I was hoping to get an answer; we can speak more than once in Committee, because we are trying to understand. Otherwise, later days in Committee and Report could become quite painful. I hope to get an answer from the Minister today.

[Lord Falconer of Thoroton (Lab)]

I have been absolutely clear that, in so far as Clause 1 affects a change to the criminal law, it is reserved. In so far as implementation of it by the health service is concerned, that is a matter for the Welsh Government, not the Bill. If there is any lack of clarity in that answer, let me know.

[Baroness Coffey (Con)]

I would be grateful if any advice that has been given to the noble and learned Lord by officials is shared with the Committee. It is helpful, when determining legislation, to understand that, and it would be especially helpful if the Government, who have said they are getting involved only on legality and practicality, were to express their view. They will not even tell the Welsh Government what their view is, and that is very concerning.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, I am grateful for the insightful contributions that have been made to this debate. I will be very concise on the point. In summary, it is our view that workability concerns are less significant, although the Government are unable to confirm at this stage that the current drafting is fully workable, effective or enforceable. As noble Lords will understand, the amendment has not had technical drafting support from officials.

On this point, if the amendment is passed in isolation, it is likely to have minimal legal effect, as Clause 1 is essentially declaratory rather than operative. The remainder of the Bill would refer to the capacity to make a decision, which, as noble Lords will be aware from the Bill, is to be read in accordance with the Mental Capacity Act 2005.

I anticipate coming later to discussions on amendments to Clause 3, as noble Lords have referred to, as those amendments would change the operation of the Bill. I will comment on proposals when we come to the relevant debate. These issues are, of course, rightly a matter for noble Lords to consider, deciding which test is to be used.

[Lord Falconer of Thoroton (Lab)]

I will deal first with the central issue in this debate, which is the amendment from the noble Baroness, Lady Finlay. The wording currently mentions:

“A terminally ill person in England or Wales who … has the capacity to make a decision”.


The noble Baroness proposes that “capacity” should be changed to “ability”. From what the noble Lord, Lord Wolfson, says, I understand that we should read that with Amendment 115, although there is another amendment that the noble Baroness proposes in relation to Clause 3. But I accept what the noble Lord says in relation to Amendment 2.

With the greatest respect to the noble Baroness, Lady Finlay, she is suggesting that we remove “capacity” and replace it with “ability”. The noble Lord, Lord Sandhurst, put his finger on it when he said that “capacity” is well known to the law. You could not possibly have a Bill that did not refer to capacity because what it means, in the eyes of the law and of people in practice, is the ability to make the decision. As the noble Lord, Lord Blencathra, said, if you do not have capacity, you cannot make the decision. That applies right across the doings of human beings, and the law recognises that. If, therefore, you replace “capacity”—

[Baroness Fox of Buckley (Non-Afl)]

On a point of clarification, I thought that the idea of adding both words was very helpful, but when the noble and learned Lord says that you cannot make the decision without capacity, it is not any decision but this particular decision in this Bill. Can he reflect on a point that was made very well by one of his noble friends on something that happened in my family as well? Somebody with dementia was said to have capacity for a particular decision, but I would not have wanted my mother to have been trusted as having the capacity to decide whether to ask for assisted death.

The Mental Capacity Act is fantastically important, but is it appropriate for this decision—not any old decision but this decision—which is a bit more challenging than some of the decisions that the Mental Capacity Act is used to decide on?

[Lord Falconer of Thoroton (Lab)]

That is very well put and is exactly the question. Is it appropriate to bring the Mental Capacity Act into this Bill? I understand that whether you have an assisted death is an incredibly important decision. You cannot remove the word “capacity”, so you have to reject the amendment from the noble Baroness, Lady Finlay.

Her Amendment 115 effectively draws on how the Mental Capacity Act 2005 is currently drafted, except it adds two things. It removes the presumption of capacity and, separately, it requires the person making the decision to be aware of a variety of things that are connected with their illness. To summarise, the way the Mental Capacity Act operates at the moment is that if you are unable to understand information relevant to the decision, to retain that information, to use and weigh that information or to communicate your decision, you do not have capacity under the current Mental Capacity Act. The extent to which the things that the noble Baroness, Lady Finlay, has referred to in her amendment would be relevant would have to be weighed in the context of the decision that has to be made.

I am more than happy to debate whether we need to make the changes to the Mental Capacity Act that she is suggesting. For my part, I do not think we do. One thing that is absolutely clear is that the amendment proposed, as the noble Lord, Lord Sandhurst, identified, is completely ridiculous. You cannot remove the question of capacity from this choice. Putting aside some detail hurdles, there are two hurdles that need to be overcome in how this Bill is constructed. You have to be capable of making the decision, as the noble Lord, Lord Wolfson, said, and—completely separately—you have to make that decision completely voluntarily. It has to be your own decision, not the product of pressure.

We have had—and I say this with warmth and respect—a rambling debate going over a whole range of issues, miles away from the question of whether one should remove the word “capacity” and put in the word “ability”. If this House wants to make the law completely confused in this area, either put in the word “ability” or put in “capacity and ability”. I echo the speech of the noble Baroness, Lady Hayman, when she says we have to approach this in a grown-up manner, and to remove the word “capacity” is not a sensible way to deal with this.

I also echo those who have said that the idea of running two systems at the same time—the Mental Capacity Act system and the separate system proposed by the noble Baroness, Lady Finlay—is wrong and confusing. I congratulate the noble Baroness, Lady Fox, for spotting what the right decision is. Of course, under the Mental Capacity Act some unimportant decisions are taken, but a decision such as whether to have the ventilation removed from you if you have motor neurone disease, that will almost certainly lead to your death, is without a shimmer of a shadow of doubt a life and death decision.

The Chief Medical Officer of England and Wales, in evidence to the Lords Select Committee, said:

“it is far better to use systems that people are used to and that are tested both in practice and, where necessary, in law”.

He went on to say:

“I have a concern that you could have a conversation in one bed in a hospital where someone is talking about, for example, an operation where they might well lose their life, because they are frail and there is the operative risk, done under the Mental Capacity Act, and, in the next-door bed, someone is trying to do the same process of having a difficult conversation about someone who might die, or could definitely die, as a result of that decision, but using a different legal framework. The risks that that could lead to confusion are not trivial”.


I also echo what the noble Baroness, Lady Browning, who sadly is not in her place, said. There are problems about practically every aspect of how various parts of the health service work, but she was part of a process that considered how the Mental Capacity Act worked. The broad conclusion was that it was a good, workable Act, and we should not stray from it in this particular case. I invite the noble Baroness to withdraw her amendment.

[Lord Sandhurst (Con)]

Before the noble and learned Lord sits down, may I just make it absolutely plain that I said that capacity was necessary but not sufficient. I am not stuck with whether it should be “and ability”, but I was absolutely plain in my very short speech that capacity was necessary but not sufficient.

[Lord Falconer of Thoroton (Lab)]

I was picking up on the word necessary. What the noble Baroness, Lady Finlay, is suggesting is that we remove the word “capacity”. I do not know if I misunderstood the noble Lord, but that is what I thought he was saying.

[Lord Sandhurst (Con)]

I wanted to make it plain because some people listening to the noble and learned Lord might have thought I had not said that.

[Baroness Lawlor (Con)]

Before the noble and learned Lord finishes, can he clarify for the Committee that a person who can grasp only a diluted amount of information, or who cannot retain the information in any real sense that would be intelligible to us, can be deemed to have capacity for the purposes of the Mental Capacity Act, but for this Bill, which is designed to give people agency and allow an individual as much choice as possible to choose treatment or have agency over medical and palliative care decisions and so on, an entirely different threshold should, quite rightly, be expected for such a serious measure as this?

[Lord Falconer of Thoroton (Lab)]

I respect the noble Baroness for repeating her speech. Section 3 of the Mental Capacity Act says that if a person is unable to

“understand the information relevant to the decision … to retain that information … to use or weigh that information ... or … to communicate his decision”,

then they do not have capacity. I am content that that should be the approach under the Bill.

[Baroness Coffey (Con)]

I want very briefly to put on record that Professor Sir Chris Whitty is not the Chief Medical Officer for England and Wales, but for England only. I will wait for another time for the answer to the question I asked about power of attorney to be given, ideally by the Minister.

[Lord Falconer of Thoroton (Lab)]

I will answer that one. No, you cannot do it by power of attorney. You have to do it yourself.

[Baroness Finlay of Llandaff (CB)]

My Lords, given this very long debate, I will try to respond briefly. I declare that I had the privilege of being the first chair of the National Mental Capacity Forum, which was set up following the post-legislative scrutiny of the Mental Capacity Act precisely because of the problems with its implementation. I worked in that role all through Covid. As the noble Baroness, Lady Browning, said, unfortunately, although it is a fantastically good piece of legislation, its implementation depends on the person who is implementing it. Although there has been training, and we worked very hard to get training in, it has unfortunately not always improved things as much as one might hope.

The other thing I draw to your Lordships’ attention is Section 62 of the Mental Capacity Act, which concerns the scope of the Act. It says:

“For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide)”.


It was with that background that I became concerned that the quality of the information the person has depends on the knowledge of the person giving that information, as well as the ability of the person to retain it. I spoke about choice at the beginning of my speech. I am sorry that the noble Baroness, Lady Thornton, is not in her place, because choice is essential if we are giving patients opportunities to make decisions, but we have to have real choices. That is why I spoke about the black holes where there is no adequately provided palliative care.

Unfortunately, although the Bill has had a money resolution—forgive me if that is the wrong phrase, but there has been a commitment to fund the provision of a service if the Bill becomes an Act—it has not been matched by concurrent funding in the long term for specialist palliative care. That is a concern, but we will come back to it later.

There is another very small point that I want to make: can we please avoid using the term “commit suicide”? It is not a crime to take your own life, and “commit” is a deeply offensive term. We are talking about people who, for whatever reason, decide to take their own lives and end their lives early. We should remember that as we go forward in our debates, out of respect for everybody who has been bereaved by the tragedy of suicide or attempted suicide.

When it comes to life and death decisions, though, I suggest to the Committee that it is fundamentally different to have the decision of accepting that your disease process is going on, that your dying is inevitable and that you wish to withdraw your dialysis or ventilation. Those are decisions in which I have been involved with patients for decades. We can now take people off ventilators very gently and calmly without any of the distress that was previously associated with that, and they die of their underlying disease.

What we are talking about is suicide prevention versus suicide assistance and the point at which you decide, as a clinician with a patient in front of you, whether you are going to be working with suicide prevention, improving quality of life, or whether you are going to stop that because you are going down a different route, and some of the evidence we had was to that effect. However, because of time and the way that things have gone on, I beg leave to withdraw my amendment.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I thank all noble Lords who have spoken today for their contributions on these important issues. As I have already made clear, I will keep my comments limited to the amendments on which the Government have major legal, technical and/or operational workability concerns.

On that basis, I will speak about Amendments 118 and 118B. Amendment 118, tabled by my noble friend Lord Hunt, could prevent a person from accessing assistance where there is no clear connection between their individual circumstances and the crime that their close relative is under investigation for or has been convicted of, even if the said crime took place some years in the past. Amendment 118B, tabled by the noble Lord, Lord Farmer, would expand the meaning of “close relatives” to include “friends”. It is not clear who would determine the meaning of “friends” in this context. I should also say that disclosure of personal data engages Article 8 of the ECHR and is regulated by the principles set down in the Data Protection Act. Detailed financial assessment of those connected to a person seeking assistance is likely to interfere with the privacy of those individuals, particularly where there are no signs of coercion. The necessity of doing so is difficult to assess in the round rather than considering this on a case-by-case basis.

I turn to Amendments 222 and 612, in the name of the noble Baroness, Lady Hollins. Amendment 222 proposes a new clause to oblige the Secretary of State to provide specialist psychological assessment and support for persons considering an assisted death and their families. It would also oblige the Secretary of State to establish bereavement support services offering psychological support before an assisted death to all persons concerned. The Bill does not require families to know about an assisted death in advance, so requiring the offer of psychological services to them could create an undeliverable obligation on the Secretary of State.

Amendment 612 would mandate the video recording of a person being assisted to end their own life. The amendment would also require the person to confirm in the video recording their identity, their wish to die of their own free will, their capacity and that they are acting without persuasion or coercion. The amendment would require that this recording is sent to the coroner within 72 hours of death and it would create a regulation-making power for the Secretary of State concerning the practical arrangements for the recording, storing and transmission of the recordings. Requiring that a person’s death be video recorded where they did not wish the event to be recorded could risk being a significant intrusion into their family and private life under Article 8 of the ECHR. Since the Bill includes several safeguards, this intrusion is unlikely to be considered justified, and this amendment could also raise GDPR issues and concerns.

Amendment 460, in the name of the noble Baroness, Lady Finlay, specifies a range of actions the panel must take into account when considering a person’s psychosocial and safeguarding circumstances. It includes a requirement to offer immediate access to safe housing and financial support where abuse is disclosed. As the Bill is drafted, neither the panel nor the commissioner is provided with such a function and it is not clear how this would interact with local authority responsibility for housing provision.

As for the other amendments in this group where I make no detailed comments, although they may be deliverable, some would be challenging to implement. For example, Amendment 47 would require assessing doctors and the panel to assess a person’s state of mind or private thoughts. Amendment 58 would require an assessment of indirect structural disadvantage, including poverty or lack of care. Although I raise specific workability issues with only a small number of amendments in this group, noble Lords will be aware that the other amendments in this group have not had technical drafting support from officials. The issues raised by these other amendments are rightly a matter for noble Lords to consider and decide on, but I note that the way in which they are currently drafted means that they may not be fully workable, effective or enforceable.

[Lord Falconer of Thoroton (Lab)]

My Lords, in this debate we heard deeply personal information from the noble Lords, Lord Empey, Lord McCrea, Lord Watts, Lord Polak, Lord Griffiths, Lord Carlile of Berriew and Lord Shinkwin, and the noble Baronesses, Lady Hollins, Lady Hayter and Lady Grey-Thompson. I express my profound respect for people being willing to share in that way. I make it clear that in nothing that I say do I in any way intend to disrespect any of what must have been quite difficult statements to make. I really treasure many of the things that have been said, whether for or against the Bill.

As all noble Lords engaged in the debate know, at the heart of the Bill—there is no dispute about this—the decision to have an assisted death has to be where the patient, to quote the Bill,

“has a clear, settled and informed wish to end their own life, and … has made the decision that they wish to end their own life voluntarily and has not been coerced or pressured by any other person into making it”.

There is no dispute in the Committee that there have to be appropriate and sufficient safeguards to ensure that there is no coercion.

The current safeguards in the Bill are as follows: first, a doctor has to be satisfied that the person is not being coerced. Secondly, a second doctor has to be satisfied that the person is not being coerced. Thirdly, a panel has to assess that the person is not being coerced. Fourthly, the first doctor—after a period of reflection, in signing a second declaration by the patient—has to be satisfied again that the person is not being coerced. Finally, the doctor providing the assistance has to be at the last moment satisfied that the person is not being coerced.

The two doctors who give the certificate at the beginning must both have had specialist training in domestic abuse, including training on identifying coercive control and domestic abuse, and including identifying the effect of financial control. The panel considering the matter must consist of a psychiatrist, a social worker and a senior lawyer. If either of the two doctors have any doubt about the position in relation to capacity, they have to consult a psychiatrist. Anybody who by dishonesty, coercion or pressure induces the patient to either execute a declaration that they want an assisted death or take the assistance is guilty of a criminal offence. If all that the person does by dishonesty, coercion or pressure is to induce the person to execute a relevant document, the maximum sentence is 14 years. If, on the other hand, if they induce the person to take their own life, then the maximum sentence is life.

The question before the House in this debate is whether those protections are adequate to ensure that there is not coercion. I have before me a number of amendments. Amendment 3 is proposed by the noble Baroness, Lady Finlay: she would like “independent” to come before “decision”. I wholeheartedly agree with her that the decision must be independent, in the sense that it is a free decision made by the person, unpressured or coerced in the way that I have described. I am always influenced by what the noble Earl, Lord Howe, says in relation to that; he said, “Reassure us”. There is no dispute between me and the noble Baroness, Lady Finlay, that it has to be an independent decision. Is it clear enough in the Bill? With the deepest respect to both the noble Baroness, Lady Finlay, and the noble Earl, Lord Howe, I point out that it specifically says that the person should have

“made the decision that they wish to end their own life voluntarily and … not been coerced or pressured by any other person into making it”.

With respect, I say that it is clear enough on the face of the Bill.

I turn to Amendment 45, that of the noble Baroness, Lady Fox, which would insert “encouraged” in addition to “coerced” and “pressured”. I have thought very carefully about this, and I am against putting it in. The reason is that I see the reality: somebody who is thinking about an assisted death will want to talk frequently to those who love them. They may want to talk to the multidisciplinary team which is looking after them. Let us suppose somebody says, “I really, really want to go now. Should I take that opportunity?” If somebody says, “I encourage you to make the decision that is best for you,”, what the noble Baroness is proposing is that that becomes a criminal offence, potentially imprisonable for 14 years or for life. To me, that does not seem sensible.

I turn to Amendment 46. The noble Baroness, Lady Finlay, asks for “influenced” or “encouraged” to be added. I have dealt with “encouraged”. With regard to “influenced”, the multidisciplinary team or the person’s loved ones may well—with the best motives—influence somebody to go ahead with it. I do not criticise them for that if that is what the person wants and if it helps. It seems to me, again, wholly inappropriate to go beyond “coerced or pressured”.

On Amendment 47, the noble Baroness, Lady Coffey, suggests that it should be “external or internally” pressured that one is concerned with. We can understand external pressure—that is, somebody pressurising someone else to do it, and pressure carries with it an inappropriate degree of influence—but how does one in practice deal with an analysis of what would make me, for example, want my life to end? My noble friend Lady Merron also referred to that. The pain, the lack of dignity, the sense that I am not the person that I was in front of my own children is internal pressure. It might include me thinking, “I do not want to go on with this; in part, I’ve only got two or three weeks to live, and I want it to end”. The internal pressure is making me come to that conclusion. It is impossible to ask people, in particular the law enforcement authorities, to investigate what is going on in my mind. I have thought very carefully about that. I reassure the noble Lord, Lord Ashcombe, that I have given each of these amendments very careful thought, because they are important, but, again, I do not think that is a practical solution.

--- Later in debate ---

[Baroness Berridge (Con)]

My Lords, my name is on the amendment that the noble and learned Lord has just mentioned. This was also from Second Reading. There are loads of people signing forms saying that coercion or pressure has not happened. What is the situation with the internet? What is the situation for young people? We are failing young people if we do not make clear how that practitioner is going to know. Young people are pressured through non-human means nowadays.

[Lord Falconer of Thoroton (Lab)]

The Bill makes it absolutely clear that it must be your own decision. Let us suppose that your views of the world are affected by the internet and that you are ill and an organisation is urging you to commit suicide, that organisation should be liable if that happens.

In Amendment 49, the noble Baroness, Lady Coffey, wants “person” to include a body corporate or an organisation in relation to pressure. If an organisation or a body corporate is putting pressure on a group of people or on individuals and that makes them do it—this is putting it crudely, but if an organisation says, “Do have an assisted death; it is the right thing for everybody or for you”—that should be covered by the Bill. The noble Baroness adverted to how “person” can generally include both corporate person and human person, but I can talk to her separately about that to make sure that it is covered.

[Baroness Fox of Buckley (Non-Afl)]

Some clarification is needed in relation to a number of points that you have made. How does anybody know, how does the doctor know, whether any of these scenarios have happened? Is there anything in the Bill that makes the doctor ask and explore? The word I proposed was “encouragement”—that you would ask not just “Were you coerced or pressurised?” but “Were you encouraged?”—because it would develop a richer conversation. Is there anywhere in the Bill where all the things that you have just said—apologies; I should not have said “you” but “the noble and learned Lord”—can be fleshed out, discussed and teased out?

Maybe I have got this wrong, but at the moment as I understand it, you fill your form in, somebody might even ask “Were you coerced?” and you say no, and that is that, out the window and then, Bob’s your uncle, you are eligible and off you go. It does not matter how often that process happens. The noble and learned Lord spoke about “first doctor, second doctor”, but if they do not all explore it, how will we know whether it was anything other than a yes/no? The noble and learned Lord has given a very rich explanation of what could have happened, but the Bill does not allow us to find out whether any of that will have occurred before the assisted death is enacted.

[Lord Falconer of Thoroton (Lab)]

I do not feel insulted by being called “you”, but I do not think that the noble Baroness, Lady Fox, properly understands how the Bill operates. The two doctors and the panel have to be satisfied that the person is reaching a voluntary decision of their own, uncoerced and unpressured. Codes of practice will determine how that is done and, what is more, the panel with the three experts on it also has to be satisfied. The noble Baroness, Lady Fox, is saying that that is a tick-box exercise. With respect, no: this is obviously a very serious matter. I expect the doctors and the panel doing it to take it seriously.

[Lord Mawson (CB)]

My Lords, as the noble and learned Lord knows, I have spent a lot of my life working with people in housing estates in the East End of London. Research we did some years ago discovered that virtually every nation on earth is represented in the housing estates where I worked. I have spent a lot of my time, nearly 40 years, working with Bengali families. We know each other quite well, but do I really know what is going on in the minds of that community or with that single mother, trapped in a house, who does not speak English after all these years? The truth is that I do not. It is really difficult to know. In the same way, I find it difficult, as a Yorkshireman, to help southerners understand what is really going on in Yorkshire. Even though I have tried it many times, the quality of their fish and chips really does not cut it.

One of my problems with this overcertainty is that it feels like a very white, English conversation, when actually this country is a global community, with people from many different cultures, all over the world. What concerns me is the practicality of much of the discussion that I have listened to today, and I have no idea how you actually understand coercion or encouragement—I think that is a really important word—in practice. Having spent many years of my life with these people, I would not pretend to know what I was really hearing, at such a point, and what it meant for their life in practice.

[Lord Falconer of Thoroton (Lab)]

I completely agree that the noble Lord and I might well not understand what people from different cultures would say, but the two doctors and a panel would have to understand that sufficiently to reach a conclusion. If they do not, they cannot provide the satisfaction that is required by the Bill. The idea that the people who will make the Bill work are all from a particular class, demography and education is, with respect, wrong.

[Lord Mawson (CB)]

Will we have enough people from these different cultures with the skills and knowledge to enter into that kind of understanding, whether they are doctors or on the panels? It is really difficult to understand how that practical proposition will work in the real world—in the East End of London.

[Lord Falconer of Thoroton (Lab)]

That will very much depend upon the number of people who apply from particular groups, and I think one can be pretty sure, on the basis of the impact assessment, that there will be sufficient numbers.

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

I think it would probably be sensible, unless the noble Lord has something to raise that we have not already dealt with, for me to make a bit of progress.

[Lord Harper (Con)]

It is directly relevant to the amendment that we are discussing, if the noble and learned Lord will forgive me. I am coming back to what the noble Lord, Lord Carlile, said about the point of the debate. I absolutely get that the noble and learned Lord is very certain about the quality of the Bill. He has set that out in his usual eloquent way. However, if he followed my injunction from the words of the right reverend Prelate the Bishop of Chester yesterday and if he has listened to this debate, he must recognise that that certainty is not shared by many Members of this Committee.

I hope the noble and learned Lord will forgive me if he was coming to this on later amendments, but he has in effect said that he is not persuaded by most of the amendments. If he does not accept that many noble Lords have concerns about the Bill and thinks it is basically fine as it is, I fear that—picking up the point made by the noble Baroness, Lady Hayter—many noble Lords who might have been persuaded to support it had it been improved will not now be persuaded. Is he prepared to listen and amend the Bill in any way at all?

[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—

[Lord Ashcombe (Con)]

I would like to go back to our noble colleague from Yorkshire—I am afraid I do not know the noble Lord’s name and I apologise. He talked about working in the communities in the East End. We are short of GPs as it is, and most of our GPs come from an Anglo-Saxon background still. The noble Lord referred to the fact that, having worked with this community for a very long time, he still could not necessarily read the situation. I wonder how we deal with that, because the GPs in that community may not have had the length of time that he had to assess these situations.

[Lord Falconer of Thoroton (Lab)]

I think I answered that; the noble Lord may not have been satisfied with my answer, but I did answer it by saying that people have to be satisfied that the decision is voluntary and without coercion. If they do not know, because they cannot read adequately the community, they could not be satisfied.

[Baroness Coffey (Con)]

The noble and learned Lord has just made a point about the risk of coercion and referred to a psychiatrist. It would be very helpful to understand what clause in the Bill he is referring to, because Clause 12(6)(b) is only about the capacity of the person; it is not talking about coercion. I am also conscious that capacity is on the balance of probabilities anyway. It would be useful to understand which clause he believes referral would be in, on the grounds of coercion.

[Lord Falconer of Thoroton (Lab)]

I will come to that in a moment, because I have to get through the amendments—we have to make progress a bit. However, I completely understand the question.

Amendment 50 is from the noble Lord, Lord Evans. He basically said that when anybody tries to behave badly, trying to coerce or pressure somebody into making the decision to have an assisted death, that should be sufficient to bar it for ever, even if it had no impact whatever in relation to it. I see the force of that; I think it would be a wrong amendment, for the following reasons. Somebody—a doctor—might go over the line, but it is absolutely clear that the person definitely wants an assisted death. I do not think they should be barred from doing that because they are concerned about what might happen to the doctor or to the person they love if it is absolutely clear that they have not been coerced or pressured into it.

On Amendment 52 from the noble Baroness, Lady Grey-Thompson, she is saying that somebody should not be subject to or at risk of coercive control. Everybody agrees that the person who is adopting the assisted death should not be subject to coercive control. If they are at risk, I would expect the two doctors and the panel to investigate that fully and, if they are not satisfied that the person is reaching a decision of their own, plainly an assisted death cannot go ahead. But I think we are all on the same page in that the risk has to be properly investigated and a conclusion reached.

Amendment 57A in the name of the noble Baroness, Lady Lawlor, says you should not be allowed to have an assisted death if someone has been

“prompted to consider ending their own life”—

presumably in the context of assisted death—by any professional person. Clause 5 leaves it to the judgment of the doctor as to whether they raise the question with the patient. If they raise it, they have to raise it under Clause 5 in the context of the treatment available to the patient and all other options available, including palliative care. I do not think that if a doctor, or indeed any other professional person, makes a judgment that it would be sensible to raise it, that should thereby debar the person from having an assisted death. The noble Baroness wants to intervene. By all means let us prolong the debate if it is a new point.

[Baroness Lawlor (Con)]

It is about the level of authority which the professional person, who is in a way a public servant, and the trust which one endows in one’s GP or family doctor. As we have heard today from other people who are medically qualified, that has great weight with the patient—I speak as someone who comes from a medical family. They constantly agonise about their prescriptions for patients and their emotional condition, and all that. But if one raises assisted dying with somebody who is terminally ill, the professional—the doctor, say—is planting the idea.

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[Lord Falconer of Thoroton (Lab)]

I completely appreciate what the noble Baroness is saying. She is, in effect, repeating what she said with such force and articulateness before. My answer to that is that there will be some professional people, and Clause 5 recognises this, who think the person is saying, “I just can’t bear this, I want this to end”. Would it be inappropriate in those circumstances for a professional person, in the context of all the other options, to raise it? In my view, it would not be, and in my view, it would be completely wrong to say that if you did raise it in those circumstances, that person, the patient, would be barred from ever having an assisted death.

On Amendment 58, the lead amender—not every other amender—said that coercion or pressure should include

“intentional or indirect structural disadvantage including poverty or lack of care”.

We are all agreed that coercion and pressure on an individual by another individual is not to be allowed. Where the reason that you want an assisted death is because in your mind you are influenced by your circumstances—for example, because you are poor—should you be barred from having an assisted death because of your poverty? In my view, you should not be. What the two doctors on the panel have to be satisfied about is that it is your own decision.

[Baroness Grey-Thompson (CB)]

This partly follows on from the comments of the noble Baroness, Lady Fox. The noble and learned Lord mentioned in his previous answer to one of my amendments that the doctors would be able to investigate. I think many of us still do not understand how that investigation would take place. In terms of understanding the standard of proof, Minister Sarah Sackman in another place said it would be on a civil standard. So, in terms of balance of probability, is the noble and learned Lord saying that the doctor has to be only 51% certain that there is no coercion for the panel to carry on and for an assisted death to be granted?

[Lord Falconer of Thoroton (Lab)]

They have to be satisfied that the person is not being coerced. That means that they have to do the appropriate inquiries. If, for example, as the noble Lord was saying, they do not understand the community, then they cannot be satisfied. If, for example, they do not know enough about it, they cannot be satisfied. Every case will depend upon its individual circumstances. They will have to do what is required in relation to it.

Amendment 118, in the name of the noble Lord, Lord Hunt, proposes that if you have a close relative who has been convicted of fraud or you are living with somebody who has been convicted of fraud, there has to be an independent financial assessment. That means that if your child, grown up by this time, has committed a fraud, there has to be an independent financial assessment of your circumstances before you can have an assisted death. I am strongly against the idea that if a relative of yours committed such an offence, that would mean there would have to be a yet further layer that you have to go through. There are still all those protections.

[Lord Hunt of Kings Heath (Lab)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

This is a new practice that every answer one gives, the person then responds by repeating their speech. So, if it is new, yes—

[Lord Hunt of Kings Heath (Lab)]

The Companion states that in Committee we are entitled to speak more than once, and I think it is more helpful to do it this way. I am the 11th amendment in this group that the noble and learned Lord has so eloquently dismissed so far, but I think he has about another 10 to go.

I want to make two points. First, does the noble and learned Lord not reflect, on all the concerns that have been expressed, that the Bill might have had a smoother passage if he had shown any disposition whatever to take any of these issues away and reflect on them before coming back on Report? Secondly, I mentioned the Human Tissue Authority legislation that provides some protection and investigation to make sure that a donor is not getting a financial reward. Will he at least look at that to see whether there is any way in which we could reflect that in this legislation?

[Lord Falconer of Thoroton (Lab)]

On my noble friend’s first question, I have not dismissed all the amendments; I have accepted that we should look at some of them, and very many of the ones I am not accepting are because they are already covered in the Bill. I am rejecting some of them on the basis that I do not think they are practical. When my noble friend talked about the donor, I think he was talking about, for example, somebody who may benefit from the will of the patient. Indeed, that was a point raised by the noble Lord, Lord Farmer. Very often, the person who most supports you in relation to this is the person you love most and who is going to benefit under your will. So, very frequently the person who has taken a loved one to Switzerland is the person who is then going to inherit under their will. That does not make them bad, and I would most certainly not exclude people who benefit from the will of the person who dies because they have helped them in this respect. It seems to me to not properly recognise the importance of human relations in relation to this.

I have dealt with the point of the noble Lord, Lord Farmer, about the will. His second point was that, if you had a friend who was convicted of a criminal offence involving financial fraud of some sort, you should not be able to have an assisted death unless there is an investigation of your financial position. Well, if I reject the point from my noble friend Lord Hunt in relation to a close relative or the person you speak with, then I think, for the reasons I have given, it also does not apply in relation to a friend.

In Amendment 181, the noble Baroness, Lady Grey-Thompson, proposes that the doctor must ask why and seek specific confirmation that a decision is not coerced. There is no specific requirement for that in the Bill: it is for the two doctors to determine what they think the right course is. If they felt that they could not reach a decision without asking why, or without asking, “Are you being coerced?”, they would have to ask that. But there is no prohibition. It is, as the noble Lord, Lord Pannick, said, a decision for the two doctors and the panel to decide, in each case, what is the best way to reach a conclusion as to whether this person is being coerced. That is the question that all these things are addressing.

[Baroness Grey-Thompson (CB)]

So, the two doctors could ask an entirely different set of questions to each person who is requesting to end their life?

[Lord Falconer of Thoroton (Lab)]

It will depend on the circumstances. If, for example, the doctor had a very severe doubt about whether somebody was being coerced, I would expect them to ask very many questions about their domestic circumstances. Suppose, however, it was somebody who was clearly not, on the face of it, at the slightest risk of coercion—a person of 60 in the full flush of his or her pomp, as it were—and who had said, right from the outset, “I can’t bear the thought of this illness”, and the idea that this person has been coerced is not really plausible, then I would expect the doctor to be asking different questions from the sorts of questions that they would be asking if the circumstances of somebody’s home life were completely different. It would obviously depend on what you knew as the doctor, or had found out as the panel, about the circumstances of the individual.

[Baroness Royall of Blaisdon (Lab)]

I apologise for interrupting my noble and learned friend, but I just point out that the BMA itself is very clear that the doctors should be able to make their own judgment in all these cases.

[Lord Falconer of Thoroton (Lab)]

As I understand it, Amendment 222, in the name of the noble Baroness, Lady Hollins, would establish a specialist service to provide psychological assessment and support and then bereavement support for those seeking an assisted death. My noble friend Lady Merron has indicated the difficulties in relation to that. On the question of a psychological assessment, the position is that some work has been done abroad in relation to this. California introduced, in addition to what was required by the law in a particular part of California, a psychiatric assessment for everyone who wanted an assisted death but concluded that that was not necessary because the numbers of psychiatric assessments were producing nothing. It was only where special requirements were required that suggested it was a good thing. So I respect the suggestion but I do not think it is necessary.

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[Baroness O’Loan (CB)]

I have a very quick question. I cannot find in the Bill the powers that would allow the doctors to carry out the investigation to which the noble and learned Lord has repeatedly referred. If people do not co-operate, that is it.

[Lord Falconer of Thoroton (Lab)]

With the greatest respect, the noble Baroness has missed the point. If, for example, a person says to the doctor, “I’m not telling you things”, the doctor can never be satisfied. That is the protection.

[Baroness Coffey (Con)]

Would the noble and learned Lord write to me with the answer to the question I asked earlier?

[Lord Falconer of Thoroton (Lab)]

Of course, and I apologise for not answering it.

[Lord Watts (Lab)]

Can we perhaps shoot just one fox? There was a suggestion that there are not enough non-Anglo-Saxon GPs available to do this. I have just looked at the facts: 46% of GPs were born outside the UK and 25% of them are from Asia.

[Lord Falconer of Thoroton (Lab)]

I am very grateful to my noble friend for mentioning that, because that is what was being whispered to me but I did not have the statistics. I am very grateful to him for providing them.

[Baroness Finlay of Llandaff (CB)]

My Lords, this has clearly been a long debate, and I think for good reason. As one noble Lord said, coercion and pressure are a major concern for many people about the way the Bill is written. I will very briefly respond. I am well aware of the time, but a lot of points have been made. Noble Lords will all be relieved to know that I am not going to go through them all.

First, the word “encouragement” is taken from the Director of Public Prosecutions guidelines, and for good reason, because the Director of Public Prosecutions recognised the power of a person in authority over a person who is vulnerable. That is why it tends towards the prosecution of assistance coming from a person in authority. I would include doctors in that, but it was also thought to include prison staff, nurses and others employed in that role.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 5th December 2025 Lords Chamber

[Baroness Cass (CB)]

My Lords, as Sarah-Jayne Blakemore has been widely referred to, it might be useful to directly quote her. She said:

“Most of these age cutoffs have not been based on what we know about brain development, because they were decided way before we knew anything about how the brain develops during adolescence. So what I would say is that those kinds of decisions about age cutoffs”—


she is referring to the various age cut-offs for drinking, marriage and so on—

“should incorporate the new knowledge about brain development during adolescence. On the other hand, this is a question I’m asked often, I don’t think the neuroscience can provide an age for you. We can’t say, ‘Oh, the neuroscience shows that the brain becomes adult at age 18 or 24’ or whatever it might be. It’s much more complex than that”.

She goes on to describe how different brain regions develop and mature at different rates, and to talk about the individual differences in the speed of brain development:

“So what I would say is that what we know from neuroscience is the kind of age range, the very broad age range when the brain becomes mature and adult. And that’s much later than 18, between 20s and 30s for most people. So of course that cannot generate an age at which you become legally adult”.

That is what Sarah-Jayne Blakemore has said. On that basis, I support the suggestion from the noble Baroness, Lady Finlay, that, between the ages of 18 and 25, there should be enhanced and careful assessment, taking account of that perspective.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting at this stage. This has been a very good debate, and it might be helpful if I indicate what my position in relation to this is. The thinking behind 18 is that that is the age at which you can make your own decisions about medical care. If you are suffering from a terminal illness, you can decide at 18 whether you want to withdraw treatment, for example, or what the treatment should be.

In answer to the noble Baroness, Lady Berridge, we were aware of the different views about when your brain and maturity develop, and what the noble Baroness, Lady Cass, said is absolutely correct—she read Sarah-Jayne Blakemore’s view—in that these age cut-offs that the law imposes generally are not based upon a close study of neurology; they are the law’s attempt to reflect maturity. I am indeed very aware of the fact that if you are 18, you may be more emotionally impulsive and more easily influenced than somebody of 25, 24 or 23. Equally, anybody who has had contact with people who are young and terminally ill will have found that some 18 year-olds are incredibly thoughtful and mature and some are not, for obvious reasons.

I am very influenced by the fact that I have been listening to people expressing real concern about this issue in this House. I still think 18 is probably the right age, but I am very influenced by what the noble Baronesses, Lady Finlay and Lady Cass, have said: that maybe the answer is some assurance that there is a more intense assessment for people aged between 18 and 25. The Bill says that you can have an assisted death only if you have

“a clear, settled and informed wish to end”

your life, and it is being done voluntarily. How can we be sure about those aged between 18 and 25? Two doctors and a panel have to make the decision, but some additional thing might be required.

We are slightly going around in circles again and repeating ourselves, so I suggest that I talk in particular to the noble Baronesses, Lady Cass and Lady Finlay, and that we come back on Report and see whether we need a more thorough assessment for people aged between 18 and 25—although I am not saying I am going to change the age of 18. That is broadly my position.

[Baroness Lawlor (Con)]

My Lords, I thank the noble and learned Lord for his intervention, for which I am very grateful. I point out first that I think that many noble Lords feel there is a very great difference between a decision to refuse treatment or withdraw treatment, which may or may not end one’s life, and to ask for something which will definitely end one’s life. That point is brought up by supporters of the Bill.

I will speak to my Amendment 5 and to the related Amendments 250, 258, 305 and 338.

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[Lord Markham (Con)]

The point I was making—I am sure he will speak for himself in a moment—was that he was willing to look at that. He said that he was more likely to look at additional safeguards between 18 and 25. But I think he said—again, correct me if I am wrong—that he is willing to have further discussions with a lot of the experts we have here, including the noble Baronesses, Lady Cass and Lady Finlay, and, I am sure, others, to look at the whole question around age, as a product of the good debate that we have had here today.

I think I heard that the noble and learned Lord is taking on board the comments; he is willing to go away and look at this whole question with the experts here and, I hope, come back with something that reflects the reasonable view of everyone here today. I think we are being shown a way forward. I am keen to hear later about a lot of other things, such as the residency question and a lot of the other groupings, so at this point, I think we have what we are looking for—have we not?—in terms of a good discussion on this. I hope that we can go on to talk about some of the other groups.

[Lord Falconer of Thoroton (Lab)]

Just to clarify my position, I was responding to the debate which gave rise to real concerns about the age. I understood the noble Baronesses, Lady Cass and Lady Finlay, to say that perhaps a way forward would be to see whether there were additional safeguards from 18 to 25. That would involve me having a discussion with them and, if they were satisfied that there were additional safeguards and that they thought the age of 18 was right, that would obviously have an effect on me. If they put other arguments, I would obviously take them on board as well. My experience of the House is that, if one sees a way forward, before one continues making the same arguments as before, one sees whether a compromise that sensible Members of the House think would be enough works and whether it could attract support on Report. That was what I was thinking.

[Baroness Berridge (Con)]

May I draw the attention of the noble and learned Lord to the fact that the amendments I have laid in relation to EHCPs and additional assessment criteria are currently in group 7? If he has that meeting and that compromise might be available, that may enable me to withdraw some amendments.

[Lord Falconer of Thoroton (Lab)]

I very much welcome that suggestion. I also welcome the suggestion of the noble Lord, Lord Harper, who, as I understand it, is saying that we should also look at the clinical diagnosis of people. The noble Baroness, Lady Finlay, also raised that point. I am more than happy to include both those things, and if they both want to come, I would welcome them.

[Noble Lords]

Front Bench!

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[Baroness Merron (Lab)]

The point that I was making just before I sat down was that noble Lords will want to consider the points that I have raised in relation to these amendments. I am sure that they will take into account what the noble Lord has just said too.

[Lord Falconer of Thoroton (Lab)]

My Lords, I am grateful to everybody who has contributed to the debate. I have made my position moderately clear in relation to what we should do—and I sense that the Committee is happy that we should take that course.

I completely understand the points about people aged 18 being impulsive and often emotionally immature. On the point made by the noble Baroness, Lady Stroud, that is why the Sentencing Council refers to it. However, it is a different question here as to what the age limit should be. If people are emotionally immature, they will not have a settled view about what to do in these circumstances, but some people will. The noble Lord, Lord Kamall, asked: what happens if there are new developments in medicine that would extend life? The answer is that you would not have six months or less to live, which I think was the answer that he was giving in relation to it.

I have made my position clear. I invite the noble Baroness, Lady Berger, in the light of where we have got to, to withdraw her amendment so that we can move on to the next issue.

[Lord Mackinlay of Richborough (Con)]

I raise a mirror to the noble and learned Lord regarding his comments in 2021 during the passage of the Police, Crime, Sentencing and Courts Bill. His view was very clearly that 21 is the unequivocal age of adulthood. I assume that he has heard the views across the Committee. The noble Baroness, Lady Lawlor, had an alternative—18, 25 and 21 were advanced. Would it not be a useful compromise if he were to declare to the Committee today that he would actively consider 21 as the right age—as he did when considering whole-life orders in a previous Bill? That would be very helpful.

[Lord Falconer of Thoroton (Lab)]

On the comments that the noble Lord refers to, in relation to whether you should impose a whole-life term on somebody under 21, I recognise, as the Sentencing Council does, that issues of immaturity might make that inappropriate in certain cases. However, on this position, the question is: what is the age at which you might be capable of taking a settled decision? The concerns that the Committee has expressed about people aged between 18 and 25 make me think that the right course is to consider whether there are ways to deal with that that the House would feel are satisfactory on Report. I think that is the right course.

[Baroness Fox of Buckley (Non-Afl)]

Could I have some reassurance that with changing the franchise to 16, there will not be any slippage in relation to this Bill from 18 downwards? That is a reasonable question because, according to some people, 16 is now mature enough and adult enough to decide the fate of the country and decisions made here. Is there not a danger? Can he guarantee that this will not happen?

[Lord Falconer of Thoroton (Lab)]

I guarantee to the noble Baroness that the age is not going to go down from 18 as far as this Bill is concerned. The future is not in my gift, unfortunately. However, as far as the future is concerned, it is extremely unlikely that a subsequent Parliament is going to reduce that age.

[Baroness Berger (Lab)]

My Lords, this has been an important debate that really has encapsulated what this House is here to do. There are, of course, other amendments in this group from the noble Baroness, Lady Goudie, and the noble Lord, Lord Moylan, that we have not discussed. It is worth just putting on record that these seek to prevent discussions with children and will be an essential question to scrutinise and discuss in the next group.

I just wish to very briefly respond to three points that have been made during this group, because it is relevant and important to conversations that will no doubt continue because of the weight of opinion and support that has come forward for these amendments.

I listened very closely to the noble Baroness, Lady Fox, and I just want to make clear that, for all these young people, it is not the exception. It is impossible to imagine a young person who would not have an EHCP. That is the context in which I presented and spoke to these debates. It is not just a small group: we anticipate all of them, apart from a young person who might receive a terminal diagnosis over the age of 25 and will not have time to have an EHCP. Otherwise, we are considering all young people in this context of an EHCP that local authorities have a statutory responsibility for, and it is in that context that I make those representations.

I listened very closely to my noble friend Lord Winston, and he did make some important comments. It is clear that there are some elements of brain development that do evolve and complete by the age of 18, but there are many others that do not. Global experts and authorities on adolescent brain development such as Professor Laurence Steinberg, Professor Casey, who is the expert on neurobiological maturation, and Professor Jay Giedd, who is the MRI pioneer in adolescent brain research, all say that the prefrontal cortex responsible for executive functions does not reach its maturity until the early to mid-20s, continuing to develop well past the age of 18, and that an 18 year-old does not yet have the capacity.

I am reminded again that we have heard a lot of comments from Professor Sarah-Jayne Blakemore. She is the leading UK neuroscientist on adolescence, and she has said that an 18 year-old does not yet have the fully mature capacity for long-term planning and evaluation of consequences that characterises adult executive functioning. We should listen to her comments very closely.

Finally, my noble friend Lady Hayter said that young people would not be asked—it would be something they would request. I would point out that the Bill does enable a doctor to raise this with anyone from the age of 18. It is in that context that I have brought forward these amendments.

I will not refer to all the other important contributions and comments that have been made, but I want to make one final point. It has been very clear from the debate in the other place that even some of those most in favour of assisted dying in principle are highly concerned about the risk of children and young people being drawn into it. The amendments in this group have sought to act on both their concern and the evidence that this House took during our own Select Committee. In all the debates we have had on the Bill, and will no doubt continue to have, we have to grapple with the simple fact that there is no going back if we get it wrong. For young people in particular, we should, as we have been asked to do, err on the side of caution.

I am very glad to hear that my noble and learned friend Lord Falconer will consider an assessment for those aged 19 to 24, but I urge him to accept the simplest and strongest safeguard of all, which is to raise the eligibility to 25. I look forward to further discussions on these matters. With that, I beg leave to withdraw the amendment standing in my name.

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Moved by

[Lord Falconer of Thoroton]

6: Clause 1, page 1, line 6, after “person” insert “has a preliminary discussion with a registered medical practitioner (see section 5) and”
Member’s explanatory statement
This is a drafting change.

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[Lord Falconer of Thoroton (Lab)]

In this group, which is group 3, there are a number of amendments put forward by me but also two amendments put forward by Back-Bench Peers that are in the same sort of area. These are drafting changes. If anybody objects to any of the drafting changes, I will not move them when the time comes. If there is no objection, I will move them as long as there is going to be no vote at this stage.

Can I just go through them very quickly? Amendment 6 makes it clear that the person, who has to be over 18, has to have the preliminary discussion referred to in Clause 5, and it is making clear something that I say is already explicit in the Bill. Amendments 8 and 9 in the names, respectively, of the noble Lord, Lord Moylan, and the noble Baroness, Lady Goudie, seek to make explicit the same thing, and I hope they will accept that I am giving effect to what they are saying in relation to that.

Going on to another topic of drafting changes, Amendments 290, 366 and 931 in this group get rid of a duplication issue. Everybody wants domestic abuse to refer to coercion and control, and financial abuse. That has been achieved by incorporating the definition of domestic abuse in the Domestic Abuse Act 2021. In some parts of the Bill, as it is currently drafted, we have left in the wider definition of domestic abuse, which is now duplicative because of bringing in the definition of domestic abuse that is at the top of page 1 of the Bill; so Amendments 290, 366 and 931 remove the duplicative effect.

Amendments 332, 417, 418, 419 and 425 deal with the situation where the doctor—one of the two doctors who has got to give the assessment—cannot or will not continue to act. As currently drafted, you can get a replacement doctor only if the doctor who will no longer agree to act or cannot act has either died or suffered illness. These amendments delete the word “illness” and simply provide for a mechanism where, if the doctor cannot or will not continue to act, you can get a new doctor.

On Amendment 405, Clause 12(5) requires that the doctors who are doing the assessment make sure that there is appropriate adjustment for language and literary barriers. I am putting forward a new draft that is clearer but does not in any way change the sense.

Under Amendment 413, where a doctor has a doubt about something and is one of the two assessing doctors, he has to get a second opinion on the clinical diagnosis for the person. In relation to the second doctor, the Bill said that, if he had a doubt, he could rely on the opinion obtained by the first doctor, but that seems to us to be illogical. If the second doctor has a doubt, even after reading that opinion, he should get an opinion of his own, and that is the effect of Amendment 413.

Amendment 416 is the final drafting amendment. It redrafts Clause 13(3), which deals with the situation where the second doctor has said no, he does not think the conditions are satisfied. In those circumstances, you can get another doctor to come in. We have redrafted Clause 13(3) to make it clear that, if the second doctor says yes, he has to give explicit reasons why he is disagreeing with the first second doctor. I commend these drafting changes and beg to move Amendment 6.

[The Deputy Chairman of Committees (Baroness Scott of Needham Market) (LD)]

My Lords, I must inform the Committee that, if Amendment 6 is agreed to, I will not be able to call Amendment 9 by reason of pre-emption. We now come to Amendment 7, which is an amendment to Amendment 6.

Amendment 7 (to Amendment 6)

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That is what she said in the other House. Why is this now being watered down?

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting, but I think there is a profound misunderstanding. Let us look at Clause 8, because the noble Baroness, Lady Coffey, is making a very important point. Jess Asato was incredibly keen to specify that training in respect of

“domestic abuse, including coercive control and financial abuse, is mandatory”.

Clause 8(8) says:

“The regulations must provide that the practitioner must have had training about the following”,


and paragraph (d) says “domestic abuse”. Subsection (10) says that training on domestic abuse must include

“training in respect of … coercive control and financial abuse”.

That was the point that Jess Asato was keen to establish.

Noble Lords will see at the top of page 41 of the Bill that the definition of domestic abuse

“includes behaviour that is controlling or coercive or … economic abuse”.

What is happening here is not a watering down of any of that. It is simply avoiding duplication between Clause 8(10) and the wide definition of domestic abuse in Clause 56. I understand why the noble Baroness might be confused about it, because it is slightly complicated, but that is the intention. It is not for one second to water down any of the protections.

[Baroness Coffey (Con)]

My Lords, I do not think I am confused at all. I know what Jess Asato tried to get into the Bill to give her assurances, and that something has changed. I had moved on to talk about the amendment from Jack Abbot, which was very important.

The issue of illness is an example of where the Government said they had worked with the Bill’s sponsor. The challenge of this group—I am thinking about what the noble Lord, Lord Birt, said earlier—is that we are covering multiple issues on the basis of drafting changes. I would rather get into the substance of some of this when we get to later groups. However, Clause 14 says that, in the very unlikely circumstances that the doctor who agreed to give a second opinion “dies” or “through illness” is unable to continue, the person has the right to seek a second opinion elsewhere. My point is about removing “through illness”, which was specifically included the Bill. I am trying to understand why the noble and learned Lord is seeking to do that. I have already heard him say that you can just find another doctor, but I am particularly keen to hear from the Government their view, because they worked with the Bill’s sponsor in the Commons to get this phrasing about illness in.

The sponsor’s Amendment 416 is to do with independent doctors and Commons Amendment 459, and there is more than one reference to this issue. There was significant debate when Sarah Olney introduced her amendment in Committee in the Commons seeking to reduce the possibility of abuse by making sure that the second independent doctor has available the reasons why the first independent doctor concluded that the person was not eligible. My interpretation of the amendment tabled by the noble and learned Lord, Lord Falconer of Thoroton, is that that goes away and there will not be two reports, and the amendment speaks further about aspects of the reports.

This amendment brought attention from other MPs. Lewis Atkinson talked about recognising that the provision of five different touchpoints of assessment—I appreciate the effort that has gone into trying to bring in safeguards around these matters—is one of the strengths of the Bill and that each assessment should be done in a way that can be progressed with more information. On the Bill’s record-keeping provisions, the assessment should become increasingly informed throughout the process, and therefore there should be an opportunity for a lot of those things to be shared with the panel, as the Bill proposes. Kim Leadbeater said that she was minded to support Sarah Olney’s amendment, but, again, some of those changes are being taken out.

I am not entirely clear about Amendment 417. I somewhat understand the disability definition, although there is only one reference to Section 6 of the Equality Act 2010 anywhere.

This group of amendments needs careful scrutiny as we go through the different groups for later discussion. One of the aspects that we need to make sure of is that the extensive concessions made in the other House do not all of a sudden, through just a few changes here and there, go away. In fact, as we know, in this House we are even considering what further safeguards there could be. One of my reasons for rising today was to bring this to the attention of the Committee. I am not suggesting that the noble and learned Lord, Lord Falconer of Thoroton, has done this in bad faith. He may well think that this is just being more efficient, but the extensive debate and the support in the other place—indeed, the support of Kim Leadbeater—for several of these amendments as they were originally drafted mean we should be asking him to think again. We will get into some of the detail in the debates on future groups. I beg to move.

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[Baroness Merron (Lab)]

My Lords, I, too, shall be brief. All but three of the amendments in this group have been tabled by the Bill’s sponsor and, as has been discussed, they make a series of drafting changes to the Bill, including making sure that terms are consistent throughout and removing ambiguity and duplication.

The Government are neutral on all the policy choices reflected in these amendments, as they are on the Bill as a whole, but have as usual provided drafting support to make the Bill legally workable. As a part of the discussion today, it is of course for the sponsor and for Parliament to determine whether any of the amendments that the sponsor has chosen to table have changed the intent of amendments that were debated in the other place.

Amendment 7 in this group, tabled by the noble Baroness, Lady Coffey, seeks to amend Amendment 6 by changing a reference in Clause 1(2)(b) from “a preliminary discussion” to “their first preliminary discussion”. It does not make any wider changes to the Bill to provide for more than one preliminary discussion to take place, so this may lead to uncertainty. As with all amendments that have not had technical input from the Government, noble Lords may wish to note that the current drafting of this amendment may require further consideration to make it fully workable, effective and enforceable.

Amendments 8 and 9, on which I raise no major workability issues, appear to be trying to achieve the same purpose as Amendment 6, tabled by the Bill’s sponsor. But I would note that Amendments 8 and 9 have not had the technical drafting support from officials and therefore may not be fully workable, effective and enforceable.

[Lord Falconer of Thoroton (Lab)]

My Lords, I am grateful for all the interventions. These changes are only drafting changes. Some legitimate points were made, particularly by the noble Baronesses, Lady Finlay and Lady Lawlor, but they did not really go to the drafting points.

I go to the concerns various Members have expressed. Amendments 6 and 7, tabled by the noble Baroness, Lady Coffey, would prevent doctors having a conversation with people—I am not saying this in a bad or a good way, but that is what she wants to do—particularly before they reach 18. There is a point there, but it is nothing to do with the change I have introduced in my Amendment 6. My amendment would simply make it clear that there has to be a preliminary discussion before you can go ahead to assisted death. I have done that to make it clear that it is one of the eligibility conditions; it says nothing about what should be talked about or whether such a conversation should take place under the age of 18.

In fact, as the noble Baroness, Lady Coffey, said, Clause 6 states:

“No registered medical practitioner or other health professional shall raise the subject of the provision of assistance in accordance with this Act with a person under the age of 18”.


I do not think that the noble Baroness’s amendment would add to that protection. The key point is that all Amendment 6 is doing is saying that you have to have a Clause 5 discussion.

The next point, raised by a number of Peers, is that I am watering down the protection in relation to domestic abuse. That, as a matter of drafting, is wrong. It is only a matter of convenience that, having defined domestic abuse as including everything so defined in the Domestic Abuse Act 2021, you get coercion, control and economic abuse as forms of domestic abuse. To avoid having to repeat that every time the Bill refers to training, I have simply referred to domestic abuse, and that is then defined at the top of page 41. I very much hope that people will accept that that is the position.

The noble Baroness, Lady O’Loan, who is shaking her head, raises a different point about the position in relation to abuse that is not domestic. Perhaps your lawyer is exercising undue influence on you. That is a point that I will respond to in writing, but it is not a point raised by my drafting change, because all the restrictions have been in relation to domestic abuse, not to what the lawyers would call undue influence. But it is a perfectly legitimate point, which I will come back to in correspondence with her.

[Baroness Berger (Lab)]

On this very point, and for the record, I think many noble Lords will want to hear specifically how my noble and learned friend’s Bill will ensure that, when it comes to the training, all elements of domestic abuse as set out will be covered in that training, particularly given the concerns raised both here and in the other place.

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[Lord Falconer of Thoroton (Lab)]

The reason it is covered already is that the Bill says that the training must cover domestic abuse. Domestic abuse is defined by reference to the Domestic Abuse Act 2021. Domestic abuse in the 2021 Act includes coercion, control and economic abuse. That is how there is a mandatory requirement in the Bill for all those things to be covered.

[Baroness O’Loan (CB)]

The definition of economic abuse in the Domestic Abuse Act is limited to actions that will prevent the person getting money or being able to spend money, if I remember correctly. There could well be financial abuse, depriving a person of very large sums of money, while they are still able to get money and spend money, so I think it needs further thought.

[Lord Falconer of Thoroton (Lab)]

I will certainly give it thought, but my reading of the definition of domestic abuse in the Domestic Abuse Act 2021 is that it is an effective means of covering the sort of economic abuse habitually seen between domestic partners. I think that covers it but, because of my respect for the noble Baroness, I will certainly look at whether it needs to be expanded. What the noble Baroness is referring to is a problem in the definition of domestic abuse generally in relation to economic abuse, which I do not think is there and was certainly not the intention of the 2021 Act.

I turn to the other issues. First, on “other than illness”, this is about when one or other of the two doctors withdraws from the process without giving a reason—simply withdrawing from the process. I completely understand what the noble Baroness, Lady Fox, is saying, which is that if someone is withdrawing because they think the person is being pressured, that must be recorded somewhere and any other doctors must be able to see it. What we are dealing with here is not that situation. We are simply dealing with a doctor who withdraws and gives no reason. Should the patient have to establish that there is a good reason for the withdrawal, or is it enough that the doctor has withdrawn and is no longer willing to participate? All the amendment does is to say, “If you can’t or won’t go on, you can get another doctor”, which is not a change in sense but makes clear what those provisions are. When I say “those provisions”, I am referring to those that allow for a replacement doctor when one of the other doctors—the originally appointed one—cannot go on.

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[Lord Falconer of Thoroton (Lab)]

First, on there being no need to question someone about why they are withdrawing, if there is material relevant to it, I need to check the Bill to see that it should be recorded. But the Bill contains regular provisions that state that everything must be recorded. If it is not adequately covered—if somebody says, “I’m withdrawing because I think you’re being coerced”, obviously that should be recorded—I will make sure that it is covered.

On Amendment 405—

[Lord Deben (Con)]

I genuinely want to understand this. The worry we had about this being a drafting difference is simply because when you could withdraw only on grounds of illness or death, the situation about why you withdrew did not arise. When you remove that, people can withdraw without giving notice of why. Therefore, there ought to be something—the noble and learned Lord has rightly said that he will look at it—to make sure that if somebody withdraws because there is some serious issue in connection with the decision, they have to say what it is. If we do not have that, this very much becomes a weakening point. I know that the noble and learned Lord does not want it to become that, but without something that insists on the information being given, it does become much weaker. This is not a drafting point until that is put right; when it is, it is a drafting point.

[Lord Falconer of Thoroton (Lab)]

I do not accept that it is not a drafting point, but that may be dancing on the head of a pin. The point that both the noble Baroness, Lady Fox, and the noble Lord, Lord Deben, are making concerns making sure that if you are leaving for a reason that will give rise to problems, it is properly recorded. I completely accept that and we will make sure that that is the position, because it is a valid point.

In relation to Amendment 405, the noble Lord, Lord Shinkwin, said that it is a watering down. It is not a watering down at all, with respect. The current draft says:

“When carrying out an assessment in accordance with subsection (2), the assessing doctor must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters”.


The new draft says that the relevant doctor must

“take all reasonable steps to ensure that there is effective communication between the assessing doctor and the person being assessed (including, where appropriate, using an interpreter)”.

The noble Lord, Lord Shinkwin, is shaking his head; I am more than happy to talk to him about how that could be a change, and if there is some change that he would like in relation to it, let us put it in. But it is, in legal terms, to my eye, wider. It covers a much wider ambit without providing any inadequate protection. Maybe the right course is for me and the noble Lord, Lord Shinkwin, to sit down and for him to identify the changes that he would like. At the moment, I cannot see them.

[Lord Shinkwin (Con)]

I thank the noble and learned Lord, and I will be very brief. Would he consider withdrawing his amendment? The change I would simply write, and I imagine the House would find acceptable, is what the sponsor of the Bill in the other place also found acceptable, which is to accept Mr Abbott’s amendments.

[Lord Falconer of Thoroton (Lab)]

I do not need to withdraw the amendment, because if the noble Lord objects to it, I will not press it in Committee. It depends on what we get to when we get to Report. What I am saying is that, at the moment, I cannot see the difference. I am more than happy to talk to him before Report. If there are valid points, let us put them in. However, at the moment, it looks to me to offer just as good, if not better, protection.

[Baroness Grey-Thompson (CB)]

I would not be able to accept the amendment as tabled because I have numerous other amendments on disability, language, BSL, different levels of interpretation and Makaton that are all important when having these conversations. Following the offer that the noble and learned Lord made to the noble Lord, Lord Shinkwin, I would be delighted to join the meeting as well, to see how the noble and learned Lord’s amendments can be improved to move further down the road. What we are trying to do is to make sure that people go into this decision-making process clearly understanding the decision they are taking.

[Baroness Hollins (CB)]

If such a meeting were to take place, I would be delighted to ask the noble and learned Lord to consider the alternative wording I proposed when I spoke to the amendment.

[Lord Falconer of Thoroton (Lab)]

First, both noble Baronesses would be very welcome to attend this meeting, which is expanding all the time. Secondly, the language the noble Baroness, Lady Hollins, proposed was “reasonable adjustments”, which is in the first draft but not the second. The reason we have not used the wording “reasonable adjustments” is that it comes from the disability Act. We want to do that and then go wider, and our amendment therefore gives greater width.

[Baroness Hollins (CB)]

It is the Equality Act, not the disability Act. I suggested that the definition of “disability” in the Equality Act, with respect to something like this, would in fact include someone with a long-term condition or mental illness, as well as any other disabling condition that the noble and learned Lord may be referring to.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness is right that it is the Equality Act, not the disability Act; I apologise for that. If we were to restrict it to that, we would restrict it to a particular thing, and we think that it should be wider that. Again, we can talk about that at the ever-expanding meeting.

On Amendment 416, the noble Lord, Lord Ashcombe, was particularly exercised by the fact that the second doctor would not see the report of the first doctor; he would have some degree of problem with that. The noble Lord will know that, where a second doctor is brought in—where a referral is made to a new practitioner—the co-ordinating doctor must provide the new doctor with a copy of the previous report. If the new doctor is satisfied as to all the matters mentioned in Clause 11 on capacity et cetera, he or she then has to say why he or she disagrees with the previous doctor. The noble Lord’s legitimate sharpness in relation to that point was based, I think, on an improper understanding of Amendment 416, which will allow this to happen only once the new doctor sees the report of the previous doctor.

In the light of my exchange with the noble Lord, Lord Moylan, which was right for us to have, I will not move my amendment. Although the noble Baroness, Lady Coffey, was kind enough to indicate that she will withdraw her amendment to my amendment, because the noble Lord, Lord Moylan, thinks his drafting is better, we will have to wait and see what happens on Report. Do not hold it against me when I come back with the same amendment on Report.

[Baroness Coffey (Con)]

I thank the noble and learned Lord for his extensive responses. They reflect that “ensure” and “take reasonable steps” are actually different in law compared with what is expected. I am grateful to him for saying that he will not press his amendments in Committee and that he will allow us the opportunity to meet him and others to discuss some of these issues, where we think the provisions go beyond what might be considered legal drafting. I am slightly concerned that the Government did not reply to one particular aspect, but I will take that up separately with the Minister. But with that, I beg leave to withdraw—

[Lord Wolfson of Tredegar (Con)]

Before my noble friend sits down, I wonder whether the noble and learned Lord might take the opportunity to respond to the point I put to him on confirming the drafting of that amendment. He must have overlooked it.

[Lord Falconer of Thoroton (Lab)]

That is in the notes, but I will write to the noble Lord on that.

[Baroness Coffey (Con)]

With that, I beg leave to withdraw Amendment 7.

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[Baroness Finlay of Llandaff (CB)]

We are discussing the wording of this Bill, with due respect. I raise this as a concern for clarification. It needs clarification because, if noble Lords are anticipating that this Bill and the legislation in the other jurisdictions will pass, we cannot leave a legal loophole or difficulty that might jeopardise the care of patients coming to England from the Crown dependencies. That is why I have raised it.

I turn to Amendment 11. Currently, the Bill speaks of the person being “ordinarily resident” in England and Wales, but there is a problem with “ordinarily”. In 1983, Lord Scarman stated in a House of Lords judgment that

“‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being”.

So far, so good. However, in the healthcare context, the 2012 Review of Overseas Visitors Charging Policy said:

“The vagueness of the definition means that OR”—


ordinary residence—

“is difficult to interpret and apply on an individual case basis”.

People fell through the gaps and the NHS was not recovering its costs. Then, during his time as Immigration Minister, the noble Lord, Lord Harper, pointed out that

“we need to do a better job of making sure that front-line professionals have a simpler system”.—[Official Report, Commons, Immigration Bill Committee, 7/11/13; col. 290.]

The problem with the definition in the Bill is that it could cover someone who is now living in another country but has an address of convenience in England and Wales for whatever reason. We know that there are thousands of empty properties owned by people who are not living permanently in this country. Apart from the more than 187,000 homes that are owned by people living permanently abroad, there are 5.5 million people who are British passport holders or have residency visas to live in the UK but are living abroad permanently. What will be the position of these people if they wish to access an assisted death here? Currently, they would not be eligible for NHS treatment if it were to be funded by the NHS. If they came to live in the UK for a year, they would then become eligible for the NHS, but, with the prognosis of six months or less, they would be expected to be dead within that time. Of course, this assumes that there is any accuracy in prognostication, which there is not.

Let me put to your Lordships a scenario that is, sadly, not infrequent. A person working for the Foreign and Commonwealth Office in an embassy abroad becomes seriously and terminally ill and is repatriated to the UK. Their house is rented out and they have to give notice, so they go to live in a different area—one, they hope, with good specialist palliative care services that can provide them with support. However, not being able to be in their own home and surrounded by their own things, and without contact with people who would otherwise have a role in their lives, they easily become very depressed.

Let us look at that scenario under this Bill. Suppose they decide that they want an assisted death. They will not have been resident for 12 months prior to making a first declaration to request an assisted death. Will that person, who may have worked all their life in service of this country, now be ineligible? I see that the noble and learned Lord, Lord Falconer, is nodding that they would. I believe that, under the wording of the Bill—

[Lord Falconer of Thoroton (Lab)]

Hold on—my nods must not be misinterpreted. I understand the question. If, for example, you live in Britain and you go and become the First Secretary in the US, you do not cease to be ordinarily resident in the UK. If you are a soldier and serve for nine months abroad, you do not cease to be ordinarily resident. I was nodding only to say that I have got the question, but I would not necessarily agree with the solution that the noble Baroness proposes.

[Baroness Finlay of Llandaff (CB)]

I am grateful for that clarification and we will come back to the noble and learned Lord’s comments on these issues afterwards.

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[Lord Falconer of Thoroton (Lab)]

I am very willing to address these border issues, which are incredibly important. The noble Baroness, Lady Finlay, specifically raised them in the context of the Isle of Man patient who comes to, say, Liverpool for treatment. What will happen when Scotland and the Isle of Man have different laws on assisted dying? If, as this draft says, you have to be ordinarily resident in England and Wales to get the benefit of the exception to the Suicide Act, those who offer to help someone get back to the Isle of Man for an assisted death there would be committing a criminal offence because the person would not be ordinarily resident in England and Wales.

The British Medical Association has a proposal that we amend the Bill to say that if you help somebody to go to another part of the country to have an assisted death in accordance with the laws there, that would not be a crime. To answer the point by the noble Baroness, Lady Finlay, I have been in discussion with the BMA as to how one might introduce an amendment to that effect. We need to discuss that, and these cross-border issues definitely need to be discussed. I would very much welcome such a discussion taking place with interested parties.

[Lord Beith (LD)]

What I am talking about is a group of people who live in England, are ordinarily resident in England, but who happen to be registered with a general practice in Scotland. That has no impact on what the Scottish situation would be in other respects—that is a matter for the Scottish Parliament—but it does affect the scope of the Bill.

[Lord Falconer of Thoroton (Lab)]

I was addressing the wider issue, the one that the noble Baroness, Lady Finlay, was talking about. But it goes to those ordinarily resident in Scotland, who come to England for their medical advice—and if the medical advice says, “Go back to Scotland if you want an assisted death”, would that be a crime? But I also wish to deal with the GP point. If you live in England but have a GP in Scotland, does it debar you from getting it here? I am more than happy to include that in the discussion.

[Lord Moylan (Con)]

My Amendment 14 in this group seeks to expand eligibility for those of pensionable age who have retired from the UK and gone to live abroad. It is a probing amendment, of course; it is not my intention particularly to expand eligibility under the Bill. I am trying to raise a question of equity and fairness but also legal defensibility. I want to approach the issue from a slightly different angle. I endorse everything said by my noble friend Lord Lansley, the noble Baroness, Lady Finlay, and the noble Lord, Lord Beith, in raising practical issues, but I want to approach it on a slightly different basis.

The intention of the sponsor, I think it is fair to say, is that in creating this Act we do not turn England and Wales into a sort of international capital for quick assisted death. That would be an appalling thing to happen. So we try to put some borders and parameters around it and say that this service is here for the use domestically of people who are established here. One way of looking at that is to put the criteria in about having been here for 12 months and so forth, and being ordinarily resident, and all of that. As I say, I agree that those things raise very serious practical issues, but it seems to me—here I tread very carefully, because I am not lawyer—that they raise legal issues as well. Are we to some extent fooling ourselves into thinking that we, although we are the legislature, can create these boundaries and that they will remain firm?

I am thinking about what the Minister said in her reply to the debate on the first group today, in which she was very careful to draw noble Lords’ attention to the fact that certain amendments in that group might be challenged under human rights law or on the grounds of the Equality Act. She said that she could not give assurances that they would not be challenged; that was her being cautious and proper in expressing the Government’s view while being neutral about the Bill. But that raises a flag. How many of the limits that we are discussing now would actually withstand legal challenge? I chose my own example on precisely those grounds.

What if you have lived all your life in this country and paid all your taxes in this country and reached your pensionable age and decided to retire to Spain, say? Unfortunate developments lead you to want to come back and you qualify under the Act for an assisted death; you have a terminal illness and six-month prognosis, and you want to come back to the UK to take advantage of that, maybe because it is not available in Spain or because you want to be with other members of your family—who knows, but you want to come back to do that.

Under the Bill, as I understand it, you would be excluded from doing that. But would a court agree that that was a firm parameter; in other words, would a court agree that the criteria we have established are sufficiently rational that they have a sufficient basis in other legislation, in their understanding of human rights or in practical considerations? There might be all sorts of reasons why courts might say, “Yes, these are rational limitations”. But it could equally be the case that the court would say, “No, that is an injustice. This person has paid their taxes all their life. They’ve only been gone from this country for a few months. Of course, they should be allowed to come back and take advantage of it; it is irrational to exclude them”. That is the point I want to raise.

The noble and learned Lord the sponsor of the Bill has to put in place criteria which not only sufficiently exclude the possibility that we are going to become an international shop for assisted death—which we would all agree with him is something that we do not want to see happen—but are sufficiently rooted that they will be defensible and durable in a judicial context. That is the matter that most concerns me, apart from the practical considerations, about this whole eligibility debate.

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[Baroness Merron (Lab)]

I am sure the noble Baroness will understand that I am restricted in the comments that I can appropriately make here. I heard my noble and learned friend Lord Falconer say that all these matters needed consideration, and I am sure that he will expand further on that very point.

[Lord Falconer of Thoroton (Lab)]

I will come to that question when I go through the points.

The purpose of Clause 1(1)(c)—namely, that to qualify you have to be ordinarily resident in England and Wales and have been so resident for at least 12 months—is, as noble Lords have said, to avoid people coming here specifically for the purpose of having an assisted death. It therefore would not be adequate to say that people should be ordinarily resident at the moment they apply, because they would have come specifically for that period. Hence you need a period, and 12 months is taken as a reasonable period in relation to that.

The phrase “ordinarily resident” appears right throughout the statute book in a whole range of settings and reflects the policy choice made by regulations or statutes. It says, “We want to give this right to people who permanently live in this country”, using the word “permanently” not in a legal sense but in an ordinary sense. In applying that phrase, the courts have not generally had any real difficulty as to what it means. It is a reflection of this Parliament saying that we want to give particular rights to the people who live here, and sometimes we say, as we are suggesting here, that we do not care what their citizenship status is—if they live here permanently, they get that right. For example, in relation to the National Health Service we say that if people live here permanently, they get that right.

With the greatest respect to the noble and learned Baroness, Lady Butler-Sloss, the cases have made it pretty clear that you can be ordinarily resident here but have temporary absences abroad—for example, if you go to work as a diplomat abroad, serve in the Armed Forces or take a job that takes you away for two months. The big case is somebody whose family lived here and who went to be educated in India for a period of time, who is still held to be ordinarily resident here. With the greatest respect to the noble Lord, Lord Mackinlay, I do not think that adopting the phrase “ordinarily resident” gives rise either to injustice or to legal difficulties.

I will deal with the points made by individual Peers. I am very sympathetic to the point from the noble Baroness, Lady Finlay, as I made clear in my intervention. I do not think she was putting in the word “permanently” other than to probe the question of those who live on the Isle of Man or Jersey and get all their medical treatment habitually in England. When the doctor in England says, “I will help you go home to the Isle of Man to get an assisted death”, assuming that it becomes legal in the Isle of Man, the doctor there will be committing a criminal offence under the Bill unless there is an amendment.

The BMA has proposed an amendment that, if you help somebody go home for an assisted death—home being, say, the Isle of Man or Jersey—and it is legal there, that should not be a criminal offence. I talked to the BMA about that. We need to work together to see whether we can get an amendment that satisfies the point that the noble Baroness, Lady Finlay, has made. I would welcome her input in relation to this.

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[Lord Lansley (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Can I just finish this sentence?

On the tourism point, it invites the possibility that you can come and genuinely live here until you die in order to get an assisted death, and we do not want that.

[Lord Lansley (Con)]

I think the noble and learned Lord knows that the definition of “ordinarily resident” that is used in the National Health Service is defined in common law. It is about living here as part of your normal pattern of life for a settled and continuing purpose. It is not “at a moment in time”. That is why the 12 months is particularly inappropriate, because it is a matter of judgment at the point at which a test of ordinary residence happens, and one has to demonstrate that one is here for a settled purpose.

[Lord Falconer of Thoroton (Lab)]

I accept that completely. The reason the 12 months is here is to give some degree of assurance that the reason you are living here is not because of an assisted death but because it is your genuine home.

I come to the proposal from the noble Lord, Lord Frost. The way it is drafted, although I cannot believe he meant this in the way that he put it, you have to be ordinarily resident in England or Wales, you have to be a British citizen and you need indefinite leave to remain. I was surprised he was saying it would be an easier test to apply. It would not be an easier test to apply, because you would have to apply both ordinary residence and whether you are a citizen or have indefinite leave to remain. Even assuming the proposal is the more limited one, namely, that you only have to be a British citizen or have indefinite leave to remain and you do not have to be ordinarily resident here, that would not be appropriate, for two reasons.

First, the policy choice that the sponsors of the Bill, myself and Kim Leadbeater, have made is that, if you live here—if you are ordinarily resident here—whatever your citizenship or status, you should be entitled to it. Secondly, and separately, I do not think it is appropriate to make it available for people who, for example, have not lived in this country for 50 or 60 years and have no intention of returning. That would invite death tourism, to use the phrase.

The noble Lord, Lord Harper, said that doctors should not be required to make the assessment. If the position is that there has to be some residence requirement, it is perfectly okay for the two doctors who are concerned with this to make inquiries about where someone lives and how long they have lived here. That is not difficult, and in 99.99% of cases it will not give rise to any problems. Let us assume that most people are honest, and say to the doctor, “I actually live in France but I’m coming here because I want this”. The doctor will say that it is not available. I hear what the noble Lord says, but I do not think it gives rise to particular problems. If there are particular problematic cases, these can ultimately be resolved by the panel.

[Lord Harper (Con)]

I do not think that is the experience of the National Health Service. There is a whole cadre of staff—the overseas visitors managers—who deal with people who are trying to access a service. I do not think it is the case that this is straightforward and that in the vast majority of cases there will not be an issue. That is not the NHS’s experience and I do not think it will be the experience of this service either.

[Lord Falconer of Thoroton (Lab)]

I am surprised to hear that. I will make inquiries, but I am almost sure that that will not be the case with this.

The noble Lord, Lord Mackinlay, gave us an interesting tour d’horizon of the law and said how “ordinarily resident” applies in various areas. “Ordinarily resident” means the same thing in all those areas. For the reasons I have already given, I do not think it will prove a difficult thing to apply in practice. I am grateful to the noble Lord, Lord Meston, for his endorsement of the approach to “ordinarily resident”.

The noble Lord, Lord Wolfson, asked me a number of questions, such as about the citizen who was ordinarily resident here and then went to live abroad—I think that was the case raised by the noble Lord, Lord Moylan. If a person decided that they were going to move to Spain and live the rest of their days there, then when they become ill they wanted to come back and have an assisted death, under the terms of this Bill they would not be eligible because they would not have been ordinarily resident in this country for 12 months—this country being England and Wales.

The noble Lord’s second question was about somebody from Northern Ireland who comes here and asks for an assisted death. Again, they would not be eligible because the assumption under his question was that that person’s ordinary residence was in Northern Ireland. His third question was about why opinion is not satisfied. It seemed to us that opinion is enough in relation to this because it would be done basically by asking a number of questions and you would assume that the answers that you had would be honest.

[Baroness Coffey (Con)]

I notice that the noble and learned Lord has taken interventions. I do not believe that he has addressed my issue about the risk of tourism. He has used interchangeably during his explanations “permanently” and “ordinarily resident”. No distinguished lawyer here has countered the view that you can be ordinarily resident in more than one country at the same time. We have the broader issue that case law and NHS guidance can change this. It really needs revisiting. Will he try to address my issues about tourism and this Bill?

[Lord Falconer of Thoroton (Lab)]

My Lords, I honestly think that is a smokescreen. The Bill says, in a way that the law has recognised time and again—because this Parliament has to make choices from time to time about who gets benefits—that the benefits of the Bill should be given only to those who ordinarily live in this country. That phrase has not given rise to problems. The courts understand it, doctors understand it and the panels will understand it. If we in this Parliament cannot say that we will give rights only to those who are ordinarily resident, which is a phrase that means something, we will never be able to determine who is entitled to our rights. I say, with the greatest respect to the noble Baroness, Lady Coffey, that what we are trying to do in the Bill is clear. I invite the noble Baroness, Lady Finlay, to withdraw her amendment.

[Baroness Finlay of Llandaff (CB)]

My Lords, I will now sum up at the end of this very interesting debate. I am relieved to hear that people do not want doctors to be immigration officers. I am a little disappointed that the noble and learned Lord, Lord Falconer, has not accepted the amendment from the noble Earl, Lord Howe, because it is so straightforward. If, as the noble and learned Lord says, it would not be a problem for over 99% of patients, it would not be a problem to be satisfied. It would add a degree of security for doctors who are being asked to provide these assessments of eligibility.

I was also glad to hear from the noble Lord, Lord Harper, that those working for the Foreign, Commonwealth and Development Office, in embassies or wherever, are covered, and that that is not a problem. The noble Lord, Lord Carlile, raised the issue of those working as volunteers abroad for a very long time. I hope that the ability that applies to Foreign, Commonwealth and Development Office workers also applies to those working for charities, such as some of the major charities, who may be abroad for a very long time but view their permanent home as the UK.

I remain concerned about Jersey and the Isle of Man. What conversations has the noble and learned Lord had with the Public Bill Office about how to get this in scope? My attempts have failed, and I understood that here in the House of Lords we are not able to widen the scope of the Bill. I worry that without widening the scope of the Bill, we will not address it, and those doctors treating patients with all kinds of really serious illnesses, particularly in Liverpool, as referred to by the Front Bench, and in Southampton, could inadvertently find themselves in a very difficult position, which would be an unintended consequence of this legislation.

[Lord Falconer of Thoroton (Lab)]

I do not know whether the noble Baroness has discussed with the Public Bill Office the BMA’s proposal in relation to this, which is that it is not a crime under the Suicide Act if the assistance you give is not unlawful in the Isle of Man or Jersey. The idea that that is out of scope seems obviously wrong, because the Bill is crafting an exception to the Suicide Act. If the noble Baroness and I go to see the Public Bill Office and explain that, I would have thought that there would be no difficulty about the scope.

[Baroness Finlay of Llandaff (CB)]

I would be delighted to go with the noble and learned Lord, because he may have a little more success. The Public Bill Office has been unfailingly helpful. This is no criticism whatever of it; it has worked incredibly hard. With that and the promise of going to see it with a matter of urgency, I beg leave to withdraw the amendment.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 12th December 2025 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I will act immediately on the words of the noble and learned Baroness, Lady Butler-Sloss, and respond briefly to what the noble Baroness, Lady Finlay, and my noble friend Lady Berger said. Basically, they are referring to the problem of people who lack capacity and who have had their liberty deprived because their lack of capacity is so severe that they cannot be trusted to be free. That normally takes place in the setting of a hospital or a care home, but it can also take place in the setting of a private home; that is where the Cheshire East cases come into play.

The noble Baroness, Lady Finlay, said that this should be a yellow flag. If your lack of capacity is so serious that your liberty is taken away, it indicates that something is seriously wrong. The principle of the Mental Capacity Act 2005 is that capacity should be looked at on a case-by-case basis. There will be cases where someone’s liberty is taken away where they would not necessarily lack capacity in relation to very serious issues.

I should have declared this before. Apart from my receiving money from Mr Bernard Lewis to pay for an assistant and having Dignity in Dying pay for the publication of some printing that went to Peers, my wife was, until very recently, a designated family judge and sat in the Court of Protection. I should disclose that.

Among the sorts of case that come before the courts —they will come before the courts, not a local authority—are those of people who desperately do not want to leave their home. Eventually, they will have to have an order from the Court of Protection, meaning that they have to leave; this is sometimes accompanied by a deprivation of liberty order. Many of those people, even though they are moved somewhere else, would still have the capacity to make a decision in relation to assisted dying.

How do we deal with the perfectly legitimate points made by the noble Baroness, Lady Finlay? I have had the opportunity to discuss this with the noble Baroness; I thank her for that. The answer is that there should be some form of enhanced protection to deal with what she says is a yellow flag. I suggest to the Committee that I speak to those Peers who are interested—including my noble friend Lady Berger and the noble Baroness, Lady Keeley, who sadly cannot be here today—to see what form that enhanced protection could take.

I hope that in the light of what I have indicated, we can move on to the next amendment.

[Baroness Hollins (CB)]

My Lords, I would like to comment on this group in response to what the noble and learned Lord, Lord Falconer, has just said.

In its recent briefing for Peers, the Royal College of Psychiatrists gave its view:

“Assessors should be required to take all practicable steps to work with professionals involved in a person’s health and social care, and to talk to a relative, carer or nominated friend, including by accessing medical notes from both primary and secondary care”.


It expressed concern that

“a consideration of suicide protection duties are being bypassed by the Bill in its current form”

due to unmet need not being formally assessed. A previous DoLS is relevant to consideration of current capacity to decide to end one’s life. What would be the mechanism for reliably ensuring information that there has been a DoLS before it gets to the assessors and the panel?

Having mentioned the Royal College of Psychiatrists, I would like to make a short statement. The college has asked me to respond to the allegations about its leadership made by the noble Baroness, Lady Murphy, on 14 November, our first day in Committee. The president of the college, Dr Lade Smith, wrote to the noble Baroness asking her to withdraw her allegations, as they are inaccurate. But although the noble Baroness was present in the Chamber the following week, no clarification was provided. As a past president myself, I beg leave to set the record straight.

The college’s recommendations on the Bill are, in fact, based on 18 months’ consideration by a cross-college working group involving membership surveys, debate with members on proposals before other jurisdictions, and discussions with colleagues in other jurisdictions where assisted dying is practised. The president is clear that Dr Annabel Price, the appointed college lead for the Bill, has accurately represented its views when giving formal evidence to both Houses. With the Bill before the Lords, the Royal College of Psychiatrists is focusing on how to make it safer for people with mental health needs and learning disability needs, and better aligned with the responsibilities of psychiatrists. I feel that, in the light of the discussion on DoLS, this is an appropriate statement to make.

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[Baroness Merron (Lab)]

I am grateful to the noble Lord and feel that this would probably be a very appropriate point to move on to my noble and learned friend.

[Lord Falconer of Thoroton (Lab)]

I will just pick up what the noble Lord, Lord Kamall, is saying. I think he is saying that the Act has been updated over the years and that people have taken account of improvements. He is absolutely right; from my own knowledge of the working of the Act, he makes an absolutely valid point.

I repeat what I said earlier—that we need to discuss this. I will deal with the interventions after I have given my response.

First, the noble Baroness, Lady O’Loan, is right in identifying the risks that arise. That is why I think that the noble Baroness, Lady Finlay, is right that we need to build in some form of enhanced protection.

As far as the intervention from the noble Baroness, Lady Berridge, is concerned, this amendment is limited to DoLS under the Mental Capacity Act; it does not include any exercise of the inherent jurisdiction of the courts on somebody whose liberty has been taken away. The noble Baroness is very welcome to come and discuss that with us, and I will give her notice of any meeting that we have.

As far as the noble Lord, Lord Harper, is concerned, how one provides effective protection depends first on the discussions that take place. I would envisage tabling an amendment on this or maybe agreeing that somebody else tables one. I cannot tell noble Lords the extent to which it will involve the Minister having powers, but it is something that we will discuss.

The points that the Minister, my noble friend Lady Merron, made about discrimination relate to people who have had a deprivation of liberty order in the past, or even those who have one now, who will be excluded altogether from the right to assisted dying. The nature of the Mental Capacity Act is that this should be done on a case-by-case basis. I am proposing that we discuss how to provide enhanced protection rather than excluding.

In the light of what I have said, I hope that the noble Baroness, Lady Finlay, and the noble Baroness, Baroness Berger, on behalf of the noble Baroness, Lady Keeley, feel able to withdraw their amendments.

[Lord Harper (Con)]

I agree with the noble Lord, Lord Pannick, that a court is unlikely to interfere with important social and economic policy that has been decided by Parliament. That rather reinforces the point that I made about why it is important that these protections are included in the legislation.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I am grateful to those who have contributed to this discussion. I made it clear at the beginning that I was probing. I am particularly grateful to the noble Baroness, Lady Hollins, for pointing out that one of the difficulties for assessors is in knowing how reliable the information that they can access is. It seems that we need a way to make sure that people who could be particularly at risk have an enhanced level of assessment for the protections relevant to them.

I am sorry; should I not be speaking now?

[Lord Falconer of Thoroton (Lab)]

I apologise to the noble Baroness. I was being told by the Whips that my noble friend Lady Berger has to withdraw her amendment first. I apologise for the discourtesy.

[Baroness Finlay of Llandaff (CB)]

That is fine; I was hoping to sum up, and then I would willingly hand over to the noble Baroness, Lady Berger, to withdraw the amendment. I think that we need to make sure that the face of the Bill makes it clear that there is a level of particularly enhanced assessment for several groups of people—this will be only one group—who are, for whatever reason, particularly vulnerable. I hope that the number of meetings that we have will include everybody who has a concern over this, going forward to Report stage. It is of concern that the code of practice for the Mental Capacity Act has still not finished being updated. I hope that we will see an updated version next year, because the one currently in place is, in some ways, a little bit out of date, given the modern world we live in. With all that, if the noble Baroness would like to withdraw her amendment, I will be delighted to withdraw mine.

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[Baroness Merron (Lab)]

My Lords, I thank noble Lords for their contributions to this debate. As I have said, I will keep my comments limited to the amendments on which the Government have major legal, technical or operational workability concerns.

On Amendments 17 and 309A, in the name of the noble Lord, Lord Beith, and introduced by the noble Baroness, Lady Fraser, Amendment 17 is a probing amendment that seeks to establish whether people who are registered with a GP in Scotland but live in England would be excluded from eligibility for an assisted death under the Bill. Noble Lords may wish to note that Amendment 17 would have limited effect as it amends only Clause 1, which is largely descriptive. Without further amendments to Clauses 10 and 17, which contain duties to assess eligibility criteria, Amendment 17 would not impact those criteria and would introduce conflicting provisions.

Amendment 309A would amend the corresponding eligibility criteria in Clause 10 to include a person registered as a patient with a general medical practice in England, Wales or Scotland. It would not amend Clause 17, which contains the assessment by the panel. Therefore, Amendments 17 and 309A would require further consequential amendments to ensure that the Bill is coherent. This would include amendments to ensure that data recording obligations and the associated criminal offences apply to Scottish GPs. These consequential amendments would likely require consultation with the Scottish Government, as the noble Baroness, Lady Fraser, referred to, in line with the guidance for Private Members’ Bills.

I thank the noble Baroness, Lady Fraser, for tabling Amendment 62. The purpose of this amendment is to establish why the Bill requires only the actions set out in Clauses 10 and 11 to be undertaken by people in England or Wales, and not the preliminary discussion under Clause 5. Our understanding is that the reference to the preliminary discussion in Clause 5 is not mentioned in Clause 1(3) because Clause 5(3) already requires that a person wanting to have a preliminary discussion must be in England and Wales. Amendment 62 would require steps under Clauses 8 and 19 to be taken by persons in England or Wales. As drafted, the Bill requires that most of the steps in Clauses 8, 10, 11 and 19 will already have to take place in England and Wales.

In addition, Amendment 62 would have the effect that, when the Secretary of State makes regulations under Clause 19, the Secretary of State must be in England and Wales at the moment they sign the regulations. This could lead to the regulations being improperly made and challenged should the Secretary of State not physically be in England or Wales at the time of signing the regulations. This raises a practical issue of workability, as I am sure the noble Baroness understands.

On the points raised by the noble Baroness, Lady Fraser, and the noble Lord, Lord Shinkwin, relating to Scotland and guidance that the Government have provided to the sponsor, as I am sure noble Lords will understand, and I have reiterated, we are providing technical and workability support to the sponsor on devolution issues, including those that have been raised. This is an evolving situation that will continue throughout the passage of the Bill.

[Lord Falconer of Thoroton (Lab)]

I am grateful to everybody who has taken part in this short debate. I pay particular tribute to the noble Baroness, Lady Fraser of Craigmaddie, who discussed the issues with me yesterday and was incredibly clear in the way that she raised them today. She also raised the concerns of the noble Lord, Lord Beith.

I will deal with three issues: first, where the GP practice has to be to satisfy the eligibility requirements; secondly, whether the Clause 5 conversation has to take place with an England and Wales GP, or whether it can take place with a Scottish GP; and thirdly, how we will deal with the clashes between Scotland and England. I am aware, because the noble Baroness, Lady Fraser of Craigmaddie, told me about it, of the deposit return scheme and how that went wrong. I am conscious of that as an issue.

First, the noble Lord, Lord Beith, asks with his amendment whether the GP to whom you have to be a member of the practice can be in Scotland. The answer is no under the Bill at the moment. The Bill is clear that you have to be in a GP’s practice in England or Wales. Everybody has said to me that it is perfectly normal for a person living in England in the border areas to have a GP in Scotland, and asked why cannot we change the Bill to say that your GP could be in Scotland, because that reflects how people actually live.

I am sympathetic to that, but the noble Baroness, Lady Fraser of Craigmaddie, legitimately points out that, if that happened, I would need to make various other changes. For example—and the noble Baroness made this point—under Clause 7, where there is a preliminary discussion it has to be sent to the GP, and the GP has to keep a proper record of it. How can I enforce that unless I expand the provisions of the Bill to allow Scottish enforcement, for which I would need Scottish agreement? My view in relation to the point made by the noble Lord, Lord Beith, is: let us see whether we can make it work, but it will require discussions with Scotland.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I shall speak to my Amendment 26 in this group. It is important to remember that Clause 1(1)(d) of the Bill simply states

“is registered as a patient with a general medical practice in England or Wales”.

It does not require anything more than that. I will explain why I have tabled an amendment looking at a home visit, because, as my noble friend Lady Gerada has said, patients will be looked after by many different members of a primary care team but will be legally listed and registered with the named GP, because that is how the funding flows to the practice for care delivery. We must not confuse the two, and the notes held in the practice are important.

The person may actually be receiving most of their care in secondary or tertiary care, as the noble Baroness, Lady Falkner of Margravine, has pointed out, but if this qualifying condition is to have any meaning, there must be substance in it, with a clinical record that can be drawn down in assessment. That does not mean that the GP has to have anything to do with providing an assisted death, but it seems sensible that the clinical record, which will have the record from previous GP practices if the patient moves, can be drawn down.

Data suggests there has been a fall in home visit rates over time. Most home visits undertaken by primary care team members are indeed to people who are seriously ill. The data shows that in October 2025 there were over 462 home visits by GPs, which comprised about 1.7% of all face-to-face consultations registered by a practice that month, or 1.1% of all contacts. While that percentage may seem low, particularly as care moves into the community, it is important to remember that the pressures on primary care teams have increased, with more listed patients per GP and more complexity. In addition, there is less continuity of care, with patients often seen by several different doctors in a practice, and different members of the team. During a hospital stay, patients are likely to encounter, on average, 18 to 27 different healthcare professionals. All those conversations and details should be entered in the hospital record, but they may not be well entered, and the information sent to the GP after admission may be a rather simplistic summary about more of the physical aspects but not necessarily psychosocial details that may be recorded somewhere in the depth of a hospital record.

Why does all this matter? It is because the living conditions and atmosphere in a home reveal an enormous amount about pressures and influences on a person who is ill in a way that is never ascertained in the consulting room. The well-groomed patient’s home can reveal overcrowding and poverty, where others in the household are dismissive or even verbally abusive in front of the healthcare professionals who visit. For most patients, a home visit can allow the person the confidence on their own territory to talk about their hopes and fears in depth, and about why they seek an assisted death. They are not intimidated by the hospital or GP venue, knowing that other patients are waiting outside and aware that others may notice that they have been crying when they leave through a crowded waiting room.

In evidence to the Select Committee, we heard from the Royal College of General Practitioners, of which I declare I am a fellow, that any assisted dying service should be seen as a stand-alone, specialised service that GPs and other healthcare professionals may opt in to provide. They stated that it is neither appropriate nor practical for this to be deemed core GP work, and they do not want any blurring of lines with the palliative care that they provide, which has already been described by my noble friend Lady Gerada. That position was confirmed in a motion at the RCGP Council last week. The GPs were clear in evidence to the Select Committee that they have no spare capacity in the working day to take on additional duties related to providing an assisted death. For some, a lifetime of 10-minute contacts will have built long-term relationships, but that does not apply to everyone.

As the Bill does not require any inquiry of the family about the person’s circumstances, the clinical record from the GP practice about a home visit may be the most revealing way to ascertain the true situation and decrease the risk of coercion being missed, as my noble friend Lady Grey-Thompson has referred to. The GP record must be available to whoever is undertaking the assessment and assisted death service provision.

In terms of ability to see the GP, I support the evidence that we heard from Caroline Abrahams of Age UK, who said that older people often report that better access to a GP would make a huge difference to their world, and that two in three struggle to make appointments or communicate with their GP. Sadly, I am afraid the evidence in Wales is that in 2023 two-thirds of patients said to the Older People’s Commissioner for Wales that they had difficulty in getting an appointment, and that had gone up from one-third in 2022.

The Demos commission report, which was led by the noble and learned Lord, Lord Falconer, found that a doctor supporting the person and their family

“are the key elements that … should be included in any future framework for assisted dying”.

So I ask him: is that the reason why the requirement to be registered with the GP is included as a qualifying condition? Perhaps he could clarify a bit further.

The noble and learned Lord’s commission report envisaged that the assessing doctor would know the patient well and have an established relationship. In his “Newsnight” interview, he also confirmed that if the patient was young, it would be a sensible investigation for family members such as the parents to be interviewed if that young person was asking for an assisted death. Does he recognise the importance of putting some kind of stable primary care relationship at the heart of information that is available about the circumstances of the patient?

[Lord Falconer of Thoroton (Lab)]

It might help the House if I answer those questions, because they are rather at the centre of the debate. Before I get there, I should say that, in the view of the sponsors, the requirement to be registered with a GP practice reflects the reality, which is that in some cases you will have a relationship with your GP but in other cases you will not, despite your best efforts to do so. The reason for the relationship with the GP’s practice was that it provides a central place for records to be kept. The noble Baroness, Lady Fox, rightly identified myriad references in the Bill to GP practices, and noble Lords will see that it is informing the GP of every step that is taken. As ever, though, the noble and learned Baroness, Lady Butler-Sloss, puts her finger on it: you cannot possibly rely on people having an established relationship with their GP, and that is not the protection.

The point made by the noble Baroness, Lady Gerada, seems to be key, and it is reflected in what the noble Baroness, Lady Finlay, has said. The people looking after you are those who should be putting their input into what the right course is. The wrong answer to this is ludicrous hurdles that you have to get over. I do not call the speech of the noble Baroness, Lady Lawlor, ludicrous, and I unreservedly withdraw that in relation to her, but having to have seen your GP six times in the previous years is not the way to deal with it. Surely the way to deal with it is to put in the Bill—and I am more than willing to discuss how we do that—how the multidisciplinary team, which might be GPs, oncologists, nurses, physiotherapists or social workers but it might not, get to have some input into it.

What I am taking away from this debate is this: do not think about the GP being able to provide it, because they will in some cases, but they will not in others. Think instead about how you get the multidisciplinary team who are looking after the patient who wants an assisted death to give the appropriate input. Again, the right course is to talk to the people who have some expertise in relation to this and think how we build that into the Bill. It is not in the Bill at the moment, but I think we can put it in.

[Baroness Finlay of Llandaff (CB)]

Can the noble and learned Lord clarify whether he would consider amending the Bill to ensure that information is sought from those who have provided care to the patient during the course of the serious life-limiting illness that has led them to request an assisted death, whether that is from primary care, a hospital or a private sector provider? Would that also include information from members of the family, as he suggested in the Demos commission, when the person is young and when there are circumstances that would be particularly pertinent?

[Lord Falconer of Thoroton (Lab)]

Yes, we should get the information from those responsible for the care of the individual in a health sense. However, I am not willing to commit myself to that in relation to the family. The person making the decision should think, “What should we do about the family?”—but what if the patient has not seen their family for a long time or are at odds with particular family members? I believe that it should be done very much on a case-by-case basis.

[Baroness Lawlor (Con)]

My Lords, the noble and learned Lord thought that it was ludicrous that a patient would see the same doctor. Is it ludicrous, in his view, that, on average, 3.5% of consultations between a patient and a doctor are face to face? Is it ludicrous that we should expect those consultations to be with the same doctor?

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[Baroness Merron (Lab)]

Acknowledging that the amendments that I was referring to were tabled by the noble Baroness, Lady Lawlor, I have nothing to add to the points that I have already made, other than to say that the noble Baroness used the word “average” and therefore there is a question about workability. Therefore, our interpretations on the noble Baroness’s second point do differ.

[Lord Falconer of Thoroton (Lab)]

My Lords, I indicated my position in my intervention. I will summarise my understanding of the amendment, what my response is and next steps. All the amendments in this group seek a requirement in addition to having a GP before you can have an assisted death. My noble friend Lord Rook suggests having a GP for at least 12 months and having seen him twice before the first declaration. The noble Baronesses, Lady O’Loan and Lady Grey-Thompson, refer to having an “established relationship” with a GP. The noble Baroness, Lady Finlay, refers to one consultation and a home visit before the application. The noble Baroness, Lady Lawlor, refers to a two-year relationship, an average number of visits face to face and then a letter that relates to the medical condition, the treatment and the state of mind of the patient.

As I have indicated, the GP, in the structure of the Bill, is not somebody who has to be involved. The noble Earl, Lord Howe, encapsulated perfectly that the GP is somebody who is receiving information. All these provisions for making it necessary to have a better relationship with your GP than just having a GP do not touch the safeguards. Quite separately from that, I support what the noble Lord, Lord Deben, and the noble and learned Baroness, Lady Butler-Sloss, said. These provisions have an air of utter unreality if you are saying that a condition of an assisted death is a particular relationship with a particular GP. I do not think that any of these safeguards work or reflect the current drafting of the Bill.

It is clear from listening to the debate that people who are concerned with the care should form a basis for the decision. It may not necessarily be making the decision—a lot of people would say that they should not be making the approval—but their input is vital. That was the insight of the noble Baroness, Lady Gerada, which was very much reflected around the Committee. I am willing and keen to reflect that insight in the Bill. But the route is not through newness in relation to the GP. It is reflecting the proposition that the multidisciplinary team dealing with the patient must have some input. I do not know whether that satisfies the question asked by the noble Earl, Lord Howe, but that is the purpose of what I am taking away from this very valuable debate.

As for the right reverend Prelate the Bishop of Gloucester, we are going to speak about prisoners on the next group. Can I reserve my position in relation to prisoners to avoid there being too much duplication?

In those circumstances, I invite the noble Lords not to press their amendments.

[Lord Rook (Lab)]

I thank noble Lords for their patience, passion and seriousness in scrutinising this part of the Bill.

My Amendment 19, which started this debate, possibly needs some clarification. Forgive me, as one who is still becoming accustomed to your Lordships’ House, if I should have intervened earlier on this. I am very grateful to the noble Baroness, Lady Gerada, for her remarks. I had the privilege of working with her in a previous life and saw her brilliant healthcare and the provision of many experts—not just healthcare professionals but the wider community—in seeking people’s health and well-being. Her best-case scenario is what we would like to see in all end-of-life care and in assisted dying.

However, to speak to the comments by the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Pannick, my amendment is not seeking for a patient to have to see the same GP twice. That is not the amendment that we are trying to make here. We are asking that someone should be registered in a practice for a year and see a GP twice in that year.

I am very grateful to the noble Baroness, Lady Hollins, for her view that this could mean a wider team engagement—it might not be just the GP. I am saying not that it has to be the same GP twice but that a person has to engage with a GP twice in that stage. If any one of us in this Committee, or any one of our loved ones, were facing a serious medical condition right now, I think we would all have the reasonable expectation that in the next 12 months we might see a GP at our practice. Given the importance of this legislation and just what it will do for the state’s relationship to life and the NHS’s relationship to life, someone who is critically facing the end of life and requesting an assisted death should also be afforded the opportunity to see a GP twice in that period.

Dr Michael Mulholland has been quoted a number of times from his remarks to the Select Committee. I will finish with a quote from him. He said:

“We need to be sure that these things are checked on many levels. It is not at a single time and point where you tick something”.


I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, for his willingness to consider this issue. I look forward to seeing how these concerns and conversations might be expressed and reflected in the Bill. With that, I beg leave to withdraw the amendment in my name.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I put a question to the noble Lord who has just spoken. I am really concerned—

[Lord Falconer of Thoroton (Lab)]

The noble Baroness is intervening on somebody who made an intervention on somebody else. We got a very severe talking to about that before, so I do not think that is allowed.

[Lord Deben (Con)]

I did not realise that the noble Lord was intervening on me, but I will just say that, for me, it is very difficult to have that argument. Kindness is absolutely the central point of everything that I believe in, so I am very vulnerable to that question. But the truth is, the Bill does not talk about pain at all. There is nothing in the Bill about pain. This is about a totally different circumstance. One of the problems in the country as a whole is that many people who support the Bill do so because they think it is about pain.

We could have a Bill about pain, but then we would come back to the point made by the noble Baroness, Lady Berridge, that that is not what the Bill should have been. The Government should have said that they would give a free vote on a government Bill on this subject, rather than slipping it in in a wholly different way.

However, we are faced with what we have, and in that case it does not seem kind to say to people who are under all sorts of pressures and who are particularly vulnerable that this is a choice they should make. If we want kindness, we should be saying to the Government, “Get the Bill withdrawn and introduce a government Bill that is properly thought through where we can have the real debate that the public as a whole want us to have. You can still have a free vote”, but it should never have been put through in this way.

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[Baroness Merron (Lab)]

I refer the noble Lord to the provisions within the Bill. His earlier question was very much about policy. I am sure that my noble and learned friend will also refer to this, but this is a matter of policy and therefore it is for Parliament to decide.

[Lord Falconer of Thoroton (Lab)]

I am obliged to noble Lords for all their questions. I will deal with the four issues that this group raises: prisoners, pregnant women, homeless people and those who are the subject of an education, health and care plan.

Turning first to prisoners, I declare my interest as chair of a prison charity, Liberty Kitchen. I have been involved in prison issues for a very long time; indeed, I was once the Minister responsible for prisons. When I was in that role, every time a prisoner committed suicide, it was deemed a failure of the Prison Service and something that we took incredibly seriously.

As far as prisoners are concerned, I will make two points. First, this is about people who are terminally ill and have six months or less to live. The question that the sponsors address is whether prisoners should be treated differently from the rest of the population. The posit is: if you are a prisoner and get a terminal illness, is the condition of the prison so terrible that you should never allow a prisoner ever to have that right?

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[Lord Farmer (Con)]

I thank the noble and learned Lord for giving way. I will comment on the other side of the argument, which is the moral hazard. This could be an extreme case, but I will give the example of somebody who has lung cancer and has within a year to live. They also have some very difficult relationships and have wanted to get rid of a certain person for a long time. If they get rid of them, they will be sent to prison but will be within having six months to live and can have an assisted death, which takes away from the victim, the victim’s family and others any concern that justice is done. By giving them an assisted suicide, justice would not be done in that case.

[Lord Falconer of Thoroton (Lab)]

I am not quite sure I understand the point. If the position is that I have six months to live and I want to kill somebody, which appears to be the example given, I am entitled to an assisted death whether I am in prison or not. It would probably take six months before the trial took place anyway. I am not quite sure what is the moral hazard that the noble Lord, Lord Farmer, has in mind, because the right to an assisted death would be there inside or outside of prison. So, I do not see what benefit would be obtained by excluding it from somebody in prison.

[Lord Farmer (Con)]

If I may try and answer that, the moral hazard is that the victim would have seen a criminal convicted, but the criminal would not serve the sentence given to them by the courts and would instead have an easy way out. You could say that he has six months to live, but as we know, in many cases —Esther Rantzen, for instance, is one of them—it can go on for years. To end his punishment would not give justice to the victim—that is the point I am making.

[Lord Falconer of Thoroton (Lab)]

It is just such an obscure proposition that we should not determine our policy in relation to it.

Moving on to pregnant women, the amendments say that no pregnant woman should have the right to an assisted death and that everybody who wants an assisted death must have a pregnancy test. The noble Baroness, Lady Grey-Thompson, made it clear that the second was a probing amendment and not a serious proposition. In relation to pregnant women, I completely accept what is being said, particularly by my noble friend Lady Berger, about what the statistics show. Again, safeguards can adequately deal with this and I am not in favour of any change in relation to it. We should remember that what we are dealing with here is somebody who has only six months to live. Homeless people—

[Lord Mackinlay of Richborough (Con)]

There is a big issue here. Other states around the world which have had assisted dying for some time have differences of view. In Oregon, which has had assisted dying since 1997, there is a requirement to keep the mother alive for as long as possible, particularly when there is a viable foetus. The Netherlands takes a completely different view, with foeticide—where the foetus must be terminated by one means or another, often by intracardial injection of potassium chloride—before the mother can be euthanised.

At which end of the scale does the noble and learned Lord prefer these things? The royal colleges are against this whole system, yet we will be relying on them to fill in the gaps in this legislation. It is incumbent upon us to fill in those gaps for them, because they are not keen on this.

[Lord Falconer of Thoroton (Lab)]

The noble Lord puts it accurately. Some countries have taken one view and other countries have taken another. It is clear from the choice that I am supporting that we take the view that pregnancy should not be a bar to it, though inevitably, as the noble Baroness, Lady Grey-Thompson, said, there should be questions in relation to appropriate people, whether they are pregnant or not, which may have an effect on the result. On the more detailed questions, based on what I am saying, they would not arise in the Bill.

Going on to the third category, homeless people, again with six months to live or less, will very frequently, as my noble friend Lady Gray said, have complex needs and complex lives. I am very strongly against that right to an assisted death being taken away from them, but the safeguards will apply, to be sure that it is their clear and settled view and not the product of coercion.

Finally, the noble Baroness, Lady Berridge, raised the education, health and care plan. The range of people with an EHCP is very wide, as everybody knows. I am again very against excluding everybody from the significant provisions of the Bill, because the protections are there. They can go up to the age of 25 and, as I indicated last Friday, for people aged 25 and under we should think of whether there should be enhanced protection. That would include everybody up to the age of 25, including those under an education, health and care plan. In the light of those indications, I hope—

[Lord Harries of Pentregarth (CB)]

My Lords, I spoke at Second Reading but have not yet intervened in Committee. I have the greatest respect for the noble and learned Lord. However, would he not agree that there is a special vulnerability about all the categories that we have been discussing this afternoon? Are there any provisions that he can build into the Bill to address this? If you took a homeless person who only had six months to live and said, “Come and live in a five-star hotel and have good palliative care”, would they then still choose an assisted death? If you took somebody out of prison who had only six months to live and said, “We’re giving you early release, you can live in a five-star hotel with good palliative care”, would they still choose an assisted death? There is a particular vulnerability about these people. It is no good simply talking about their rights. They do have their rights, but they are vulnerable. I hope that the noble and learned Lord might be able to build something into the Bill to protect these categories of people.

[Lord Falconer of Thoroton (Lab)]

I completely accept that there are vulnerabilities in these groups. The question is whether we should exclude everybody within those groups from this right. Should we exclude every single homeless person or prisoner? We can disagree on this, but I am saying that I do not think that is right because the protections are sufficient.

Finally, the noble Lord, Lord Carter of Haslemere, asked how we deliver our Article 2 duty to protect people from death when they are in prison and we are offering them an assisted death. We are protecting them through the detailed safeguards there are before the individual prisoner is entitled to have an assisted death. In my view, that will be an adequate protection and give adequate effect to Article 2. In light of my remarks, I hope the noble Baroness will feel able to withdraw her amendment.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 9th January 2026 Lords Chamber

[Lord Pannick (CB)]

I am sorry but, with the greatest respect, the noble Baroness has not listened or read what is in the Bill. If any of the three members is unwise enough to abstain—I agree that it is highly undesirable that they should—because they are not satisfied that the case is made out, eligibility is not satisfied and, therefore, the person concerned cannot take advantage of the provisions of this Bill. Again, if the noble and learned Lord, Lord Falconer, thinks that I have misunderstood this, he will say so, but he is nodding. The noble Baroness really needs to read the Bill.

[Lord Falconer of Thoroton (Lab)]

I agree with the noble Lord’s assessment.

[Lord Pannick (CB)]

If the noble Baroness reads the Bill, her concern will be addressed.

Then we need to look at paragraph 8 of Schedule 2, which tells the commissioner that he or she

“may give guidance about … practice and procedure”.

I would be very surprised if the practice and procedure did not allow for interested parties to be heard or provide—this is another point made by the noble Lord, Lord Carlile—documents to be requested. If they were not requested and a person did not supply relevant documents, I would expect one of the three members of the panel not to be satisfied.

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[Lord Gove (Con)]

My Lords, I speak because I was persuaded by the case made by the noble Lord, Lord Carlile, but I recognise that there are inevitable questions that his case provokes, which have been reflected in the debate.

Of course, not everyone has been convinced. I am reassured by the strength of the noble Lord’s case, having spent four and a half years as an Education Minister and one and a half years as a Justice Minister with direct responsibility for liaising with the family courts, and so my respect for those who work in those courts and the judges in them is all the greater for it.

However, as the noble Lord, Lord Pannick, has pointed out, not everyone believes that judges would be the ideal people to make decisions in this case. I remind the noble Lord, Lord Pannick, with respect, of the case that he made in his wonderful book, Judges, where he said:

“So long as men and women continue to wound, cheat, and damage each other, there will be a need for judges … Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid: make decisions”.


Each of us may consider either judges or a panel preferable, but there is one key question for those who agree with the noble Lord, Lord Pannick, in his current incarnation and believe that a panel is preferable. Can we know what the promoter of the Bill understands by “legal member”, and can we also understand what the Government believe the definition of “legal member” to be? What is the threshold, what qualification—

[Lord Falconer of Thoroton (Lab)]

There is a detailed definition of “legal member” in paragraph 2(2) of Schedule 2.

[Lord Gove (Con)]

I look forward to hearing what the Government believe the appropriate definition would be and what they understand that means in terms of the pressure on resources for the profession.

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[Lord Harper (Con)]

That is very good. I am glad that the noble Lord has confirmed that the Minister will respond; I look forward to her doing so.

My final point concerns whether the Bill’s sponsors have carried out the modelling and costings that their proposals will require. Have those been put before this House so that we can make the appropriate decisions?

[Lord Falconer of Thoroton (Lab)]

I am sure that the noble Lord will have read the impact assessment; it is based on the current Bill, which includes the panel, and contains detailed costings for the panel.

[Lord Harper (Con)]

I am aware of that. I want to know whether it will contain detailed costings for the court process. Obviously, I do not know what the noble and learned Lord, Lord Falconer, is going to say, but one of the things discussed yesterday was whether he will accept any of the amendments that have been tabled. The point I am making is that, if he were minded to accept the amendments from the noble Lord, Lord Carlile, which obviously have a cost implication, there is a role for the Government in assessing those costs as well as a role for the sponsors. I am simply asking whether, if the noble and learned Lord were to accept them—he may not, of course—he would also provide the costs to the Committee. At that point, I draw my remarks to a conclusion.

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[Baroness Levitt (Lab)]

It sounds like an important point. I am sure that the noble Baroness will understand that I do not have the answer to that at my fingertips right now, but I will write to her.

[Lord Falconer of Thoroton (Lab)]

My Lords, I declare that my wife is a recently retired designated family judge—one of the people whom the noble Lord, Lord Carlile, wishes to include in his court-based process. It makes me warmly in favour of them; I admire greatly the Family Division. I also completely endorse what the noble and learned Baroness, Lady Butler-Sloss, said: if this was put in the Bill, I have no doubt that the Family Division would deal with it well and in accordance with the directions of Parliament. However, I am not in favour of the change proposed by the noble Lord, Lord Carlile, in Amendment 120. I will deal with that in detail in a moment.

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[Lord Carlile of Berriew (CB)]

I do not want to take up unnecessary time, but the purpose of the judges’ role is to receive the evidence relevant to the issue under consideration. There are many tribunals, such as mental health tribunals, on which doctors serve, but in my view and that of many, where critical issues are being considered, a more satisfactory process, on the whole, is for the judge to hear the evidence and adjudicate on it. To pick up a point made by the noble Lord, Lord Hamilton, as the noble and learned Lord knows, judges are perfectly capable of rejecting medical evidence that is put before them and do so with reasonable frequency.

[Lord Falconer of Thoroton (Lab)]

I take that to be a yes. The position the noble Lord is proposing is that the judge hears the evidence of the doctors on issues, for example, of coercion, capacity and firm and settled view, and then makes the decision. The comparison we have is between what is in the Bill—two doctors each forming a view on the terminal illness decision and the issues of capacity and whether the person has reached a voluntary decision as to whether to have an assisted death, and the panel either endorsing it by giving the certificate or rejecting it—and, as the noble Lord is suggesting, letting the court in effect decide the whole thing. I reject that view because I am absolutely satisfied, although I accept that this issue requires a lot of work and thinking about, that you are much better off having a multidisciplinary approach to somebody making an assisted death decision. It is much better to let the social worker, the psychiatrist, the doctor and the legally qualified person look at the situation and then decide whether somebody should make that decision on assisted death.

The evidence given in Committee—

[Baroness O'Loan (CB)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

May just continue? I will come back to the noble Baroness in a moment. This is very important—it is the critical bit of the whole thing.

There was a lot of evidence given to the Commons Committee in which this very issue was discussed. Sarah Cox, an expert, gave evidence. She said:

“The other thing that concerns me is that we are putting all these assessments on the shoulders of two doctors individually, followed up by a High Court judge. In any other clinical practice, when we are making very serious decisions, we know that shared decisions are much better quality, much more robust and much safer. In clinical practice, we make all these decisions in multi-professional teams. I would never make these decisions independently of my team, because the perspective they bring can help me to understand things that I am not seeing”.”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 28/1/25; col. 74.]


Judges are marvellous, but a number of pairs of eyes in relation to this is better.

A huge number of questions were asked as to why the sponsor in the Commons and I—

[Baroness O'Loan (CB)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Will the noble Baroness let me finish? I am sorry but I am not going to take interventions at this stage. I will come to the noble Baroness in a moment, but I think I should make this argument in full.

The argument is that we made the decision to change from the judge, which I initially favoured, because of pressure and advice from the Ministry of Justice. That is not right. The change was made because the evidence was very clear, and I accepted that people are better off and it is safer if one does it with a multidisciplinary panel.

What are the reasons the noble Lord, Lord Carlile, has advanced for saying that we should have a court-based, not a panel-based process? First, he says that the court has experience of making analogous decisions. The type of decision he is referring to is the one the noble and learned Baroness, Lady Butler-Sloss, referred to: the Bland case, and whether people in a permanent vegetative state should have their life support turned off. That would be of assistance, but what we are proposing in the Bill is a panel, supervised by a commissioner, devoted completely to the question of whether assisted deaths should be permitted. Yes, we would get the benefit at the very outset of the analogous decisions the court has made, but here we would have a panel devoted only to that issue, and which is bound to become more experienced in it than the courts, which are rightly dealing with a whole range of things.

Secondly, it is said that the courts would give a reasoned judgment. As was pointed out in the debate, there is a requirement in paragraph 9 of Schedule 2 to the Bill that the panels give reasons in writing, and that will give rise to a body of decisions being made.

Thirdly, it is said that the court is a court of record. Yes, it is a court of record, but the key thing is, who is best at making the decision? Is it better to have just a judge, or an experienced legal member, a psychiatrist and a social worker? I do not think in all honesty that the fact it is a court of record will make any difference to that.

Fourthly, it is said that you can appeal to the Court of Appeal. We are talking here about people who want an assisted death. We want a safe process; we do not want an overengineered process. In my respectful view, the idea that you have to go into a system that carries with it appeals puts too much of a burden on the people.

Fifthly, it is said that the judges have a special respect in our system, a point made by the noble and right reverend Lord, Lord Harries. The key thing is not whether the judges have respect but whether our system of assisted dying will carry respect. This is a better way of making the judgment; that is why I support it.

A final point made by the noble Lord, Lord Pannick, who raised it and said it was the answer—it may have to do with the fact that it is a court of record—was that the courts have discovery powers et cetera. Yes, they do, but if the panel feels that there are areas that it is not getting to the bottom of, then of course it will not be satisfied and cannot give the certificate. For all those reasons, the panel is better than the courts. That is why the decision was made.

I will now answer the question from the noble Baroness, Lady O’Loan; I apologise for not answering it before.

[Baroness O'Loan (CB)]

I thank the noble and learned Lord. The question I wanted to ask him was connected to him telling us about panels and judges. As I understand it, the three members in the legislation he has presented to the House have expertise in their own area of competence. Does he accept that the benefit of the system devised by the noble Lord, Lord Carlile, is to bring many more disciplines—medical disciplines in particular—into the agenda? In particular, the judge would have the right to sit with the doctor, and there would be a psychiatrist’s report on the capacity et cetera of the individual, so the psychiatric issues would be taken care of. The amendment from the noble Lord, Lord Carlile, proposes something wider than that which the panel could provide.

[Lord Falconer of Thoroton (Lab)]

I do not accept that. The position is in relation to the panel. If it wants a report from a doctor, it can get it. I understand the noble Lord, Lord Carlile, to be saying that the court can ask for all these things—which of course it can—and if it thinks they are appropriate, it will do so. I assume it will not ask for them when it does not think they are necessary to the resolution of the issues. The panel can do the same and, if it does not get them, just like the court, it will have to say no.

[Baroness Berridge (Con)]

In relation to the panel, as a non-medic I understand from my time on the Select Committee that “multidisciplinary” has a particular meaning within healthcare that the witness to the Commons was relating to, so it is not quite the same issue. Is the noble and learned Lord not concerned that only two of the three representative bodies of the panel came and gave evidence to the Select Committee, and the British Association of Social Workers and the Royal College of Psychiatrists are not supporting the Bill, regardless of what their view might be on the principle? Although the noble and learned Lord is obviously very well persuaded by the evidence, the professional bodies that would sit on this panel are not yet persuaded.

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[Lord Falconer of Thoroton (Lab)]

The royal colleges are neutral on the principle. The Royal College of Psychiatrists has said that it is worried about the burden on psychiatrists, not by reference specifically to the panel—though it comes into what it says—but in relation to some of the capacity assessments it has made. I do not think it will be difficult to find, for the purposes of the panel, people who have the appropriate qualifications in psychiatry to sit on the panel. People who have had some experience and are maybe working part-time, for example, will be able to do it—so I am not concerned about the absence of people who could do it.

[Baroness Nicholson of Winterbourne (Con)]

Does the noble and learned Lord not accept that his particular panel make-up disregards deafness, which is probably the largest disability in the whole of the United Kingdom? Some 19 or 20 million people are deaf to different degrees. The issue is very underrepresented in this House, oddly enough, although a large number of Members suffer from deafness. It is also particularly badly treated in the National Health Service, as we have seen in the recent report that one in 1,000 babies is born deaf and the issue is not addressed as it should be. Why does he think his panel will be any better than the proposal by the noble Lord, Lord Carlile? Presumably a judge would consider every aspect of a patient before making any decision. I am concerned that this panel attitude is quite irrelevant to those of us who are deaf—nearly 20 million British people are deaf—and to the very large number of people who do not speak English.

[Lord Lemos (Lab)]

I think the noble and learned Lord can respond to the noble Baroness’s point.

[Lord Falconer of Thoroton (Lab)]

I am not sure, particularly given the way in which the noble Baroness addressed the issue at the very end, that this is a point about panel versus judge. I would expect a judge to be experienced and able to deal with somebody who is deaf, and if they are not able to, they should be. Equally, I would expect a panel to deal with that in the same way. In all honesty, that was not a factor in determining whether panel or judge was better. Both would have to deal with that.

[Baroness Nicholson of Winterbourne (Con)]

My question was about deafness. There is no social work relevance to deafness. The noble and learned Lord’s panel is very specific.

[Lord Falconer of Thoroton (Lab)]

I hope I have given a satisfactory answer in relation to that.

[Baroness Scotland of Asthal (Lab)]

I declare an interest as a former deputy High Court judge and recorder. Does the noble and learned Lord not think that one way of curing his concern in relation to the multidisciplinary nature of the assessment would be for the assessment to be made earlier in the process and the evidence made available to the court, which could then better make a determination?

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[Lord Falconer of Thoroton (Lab)]

Yes, I agree very strongly. This is a different use of the phrase: “multidisciplinary team” relates to the people treating the person. The more input they can have, the better. With respect to the noble and learned Baroness, I am not sure that bears on the question of whether panel or court is better because, whichever route is taken, one would hope that, at the stage where either the panel or the court is making a decision, it would have access to what the multidisciplinary team treating the patient thought about the patient.

[Baroness Scotland of Asthal (Lab)]

My Lords, if I may just assist the noble and learned Lord, the reason I think it relevant is that if that multidisciplinary assessment is available, and the court has that evidence available to it, together with any other assessment made by individual additional clinicians, the court can then make an informed assessment as to which method or approach it is minded to deal with, particularly when it does not necessarily agree with the evidence of one particular clinician from whom it has had the benefit of hearing. That is the reason I think it might be useful.

[Lord Falconer of Thoroton (Lab)]

I do not understand that proposition. It seems to me that the panel is able to take that into account just as well as the court—and, indeed, I think the panel would probably be better able to assess it. I am not sure I accept that proposition.

[Baroness Grey-Thompson (CB)]

My Lords, when this was debated in another place, that argument was made, and the Association for Palliative Medicine wrote formally to correct the record. In the statement, the APM clarified that the Bill does not align with the standard multiprofessional team decision-making process. The noble and learned Lord mentioned Dr Cox, who argued that the Bill’s model of two independent doctors working alone was inadequate, and that assessments should be carried out within the multiprofessional team model to strengthen the Bill. On that discrepancy, the APM and MPs noted that although the Bill introduces a panel of psychiatrists and social workers at the end of the process, that does not equate to multiprofessional assessment at the beginning—the assessment stage that Dr Cox was advocating for. That is really important. The Association for Palliative Medicine wrote formally to correct the record following the debate in the other place. If the noble and learned Lord does not want to respond to that point right now, I am very happy for him to write to me, but I think it is important for that to be on the record in this Chamber, as a by-product of what happened in another place.

[Lord Falconer of Thoroton (Lab)]

The reason why I quoted Dr Cox of the Association for Palliative Medicine was that she specifically said that it is better to approach this issue through a multidisciplinary process rather than by placing it on the shoulders of the two doctors and the High Court judge. The panel approach reflects that approach. That is why I quoted it. I do not think I need to write to say that. It was part of the evidence that was saying, “Have not one pair of eyes to judge, but three pairs of eyes”.

[Noble Lords]

My Lords—

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[Lord Falconer of Thoroton (Lab)]

I have had 21 minutes, so I have to get on and just deal very quickly, if I may, first with the costings. The only costings that have been done have been by the Government. The Government’s costings have been done in relation to the panel but not in relation to the High Court. I have no desire for a High Court costing to be done. If others want it, they can press for it, but I am not asking for it, nor would I expect it from the Government. The impact assessment has been done as it is, as part of the Bill. I am against the proposition to change the provision in relation to a panel, so I am not pressing for any such panel.

I will just get on and deal with the less prime points. Amendment 116, which I think was tabled by the noble Baroness, Lady Coffey, says not to use the Mental Capacity Act. I am against that for the reasons I have already given, which is that we should have one system for all these situations. Amendment 426, tabled by the noble Lord, Lord Carlile, suggests that we should use the criminal standard of proof for capacity. I am against that for the reasons given by the Minister.

The noble Baroness, Lady Coffey, in Amendment 426A, says that the panel should not sit in private. The Bill states:

“Panels are to determine referrals in public; but … The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private”.


If you are dying and want this last discussion with a panel to be in private, you should have that right, in my respectful view. I am strongly against the proposal that she makes. Amendment 426B, tabled by the noble Baroness, Lady Coffey, would require that the person attends in person, which is not understanding of the fact that some people would not be able to attend in person for obvious reasons. Amendment 120A, also in the name of the noble Baroness, Lady Coffey, would exclude legal aid. For the reasons that the Minister gave, I do not think that that is possible.

Amendment 37 asks why Clause 1 only refers to Clauses 8 to 30 and not to the whole Bill. The reason is that Clause 1(2) sets out the steps that have to be taken to satisfy the circumstances of the Bill and those are only in Clauses 8 to 30. The other parts of the Bill are on things such as keeping records and so on.

I think that I have dealt with all the substantive points. For the reasons I have given, and without any lack of respect for the noble Lord, Lord Carlile, who presented it very clearly, I am against the proposal that he is making.

[Lord Harries of Pentregarth (CB)]

My Lords, could I just put one thing to the noble and learned Lord? Granted that the panel and the court-based system have a great deal in common, six months to live and mental capacity are clear and settled decisions—

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[Lord Taylor of Holbeach (Con)]

My Lords, I think that part of the difficulty is that we are trying to find a pragmatic method of discussing this complicated Bill. There are some 80 amendments in this particular group and it is impossible for the noble and learned Lord, Lord Falconer, to give justice to all of them in 20 minutes. He has talked in general principles, but he must be aware that one of the difficulties, which connects with yesterday afternoon’s debate—I was not here for it, but I saw it on television—is that he is not satisfying the need of explanation for those who are articulating points of view. Taking just a little bit longer may well be a shortcut to getting the Bill done. I feel that part of the difficulty, having listened to a lot of the debate on the Bill, is that the noble and learned Lord is desperately keen to keep moving. I understand that, but there are points at which he can stop and explain, perhaps with a bit more sympathy to the points that have been made by other Members of the House.

[Lord Falconer of Thoroton (Lab)]

Can I answer what the noble Lord, Lord Taylor, whom I greatly respect, has said? I have answered in some degree of detail the main substantive points and I believe that I have dealt with them in a way that is appropriate for Committee. One of the things that one has to do in Committee is focus on the things that really matter and avoid the other things—that is what I have done. I am open to anybody coming to see me. I started this process by writing to individual Peers to say, “Come and see me to raise anything you’ve got.” If there is anything that they want to talk about, I am more than willing to talk about it. However, I very much believe that I have answered in detail the substantive application made for an amendment.

[Lord Carlile of Berriew (CB)]

My Lords, I am very grateful to everybody who has taken part in this debate. I hope your Lordships would agree that, although this debate has taken over three hours, it has been conducted in precisely the spirit that was discussed in the short debate yesterday and that it has justified taking that time. I said yesterday that I thought we should move more quickly in this process and I believe we will be able to do so in the future. This has been an example of doing so on a very important subject.

May I express my grateful thanks to both Front Benches for the way in which they summarised their particular interests in this debate? I thought both were extremely helpful. For those who have seen my noble kinswoman, the Minister, during the year she has been here, I think they will be reassured and understand that she is perfectly capable of erecting Chinese walls that put the Great Wall of China to shame.

A point that particularly caught my attention was made by my noble friend Lord Empey. He happens to be a very valued member of a Select Committee of this House that I chair and I can confirm that he is an expert in labyrinths. He is an expert in finding his way out of labyrinths and it is just possible that, from time to time, he is quite good at making labyrinths longer— I hope he takes that in good heart. He raised a question about whether, as he put it, there should be a “special chamber”. It occurs to me that, given that the purpose of my amendments is to ensure that this is a judicial process that falls into our judicial architecture, there may be room for the sort of discussion that we talked about in yesterday’s debate with the noble and learned Lord, Lord Falconer. One might be able to find a hybrid form of what the noble Lord, Lord Empey, and I have proposed that falls within the legal, judicial architecture.

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[Baroness Levitt (Lab)]

I am not taking any interventions. I would invite the noble Baroness, with the greatest of respect, to write to me, and we will deal with the matter then.

In answer to the noble Baroness, Lady Smith, who raised the issue, along with others, including the noble Lord, Lord Harper, I can confirm that the Minister for Care said this week that we will publish an interim report in the spring and a final modern service framework by the autumn. We want to get this right, so we are not going to rush it. I remind all noble Lords that this is not a government Bill; it is a Private Member’s Bill.

For completeness, as the Committee will be aware, none of the amendments in this group has had technical drafting support, so the way they are currently drafted means that they may not be fully workable, effective or enforceable, but the issues raised are a matter for Parliament to consider and decide.

Finally, I had almost forgotten—how could I forget?—the noble Lord, Lord Kamall. I am going to commit the noble Baroness, Lady Merron, to writing to him.

[Lord Falconer of Thoroton (Lab)]

My Lords, the relationship of palliative care to the Bill is very important and concerns both everybody in this House and people generally, so this is an important group of amendments. The amendments approach the issue in a number of ways. First, they approach it on the basis that, as the noble Baroness, Lady Finlay of Llandaff, said, in order to make a decision, you have to be properly informed. So there is an information aspect, which I will address in a moment. Secondly, there is an issue about whether, if you want to make an application for assisted death, you have to subject yourself to a compulsory assessment of some sort. Thirdly, there is the issue of whether you should be entitled to an assisted death only if you can access better and therefore more appropriate palliative care than might actually be available to you in the place in which you live. I will deal with each of those three issues, which are right at the heart of this group of amendments.

First of all, should you be properly informed? Yes, you most certainly should be properly informed of what palliative care is available to you, and the Bill should make that clear. I submit that the Bill makes that clear and does so in a reasonable way. I draw your Lordships’ attention to Clause 5, which says, on the preliminary discussion:

“If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must explain to and discuss with that person … all appropriate palliative, hospice or other care, including symptom management and psychological support, and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion”.


All the palliative care options that are available to you have to be discussed with you by the doctor in the preliminary discussion and, if you want, you can be referred to a specialist in palliative care as well. In addition to that, I refer your Lordships to Clause 12(2)(c)—I am grateful to the noble Lord, Lord Kamall, who took us through the provisions very helpfully—which says that each of the two doctors has to explain to the patient

“any available palliative, hospice or other care, including symptom management and psychological support”.

Therefore, there are three occasions on which the detail of the palliative care available to you is explained to you.

The noble Baroness, Lady Finlay of Llandaff, says that maybe they would not know the full detail. I recognise that that might be possible, but is it dealt with adequately in the Bill in terms of the information being provided? My own view is that it is. I do not think you need to make further provision as far as information is concerned. I am very happy to talk to any noble Lord in relation to that, but I think that this question has been addressed head-on and that a proportionate and sensible solution has been reached—proportionate even having regard to the fact that this is the most serious decision that somebody could take.

The second issue is whether, nevertheless, should you make a referral mandatory, it has to be done, you have to be examined and you have to have a meeting with a multidisciplinary palliative care team. I say no. I say that that is a choice, because the obligations of giving information are sufficient in relation to that.

The third issue raised by this group is that palliative care is patchy throughout the country; it is better in some places than others. I completely accept that. Everything that we do in relation to assisted dying should not lead to any reduction in finance for palliative care. I am sure that it will not. As those who have read the impact assessment provided by the Health Department will know, it makes it clear that the amounts of money we are talking about to fund assisted dying are in the tens of millions, which is not going to make a difference to the provision of palliative care in this country. I am not in favour of additional provision being made to provide palliative care for those who want an assisted death, nor am I in favour of saying that, unless the standard is the highest or a reasonable standard, you are not entitled to it.

As to the first of those two points—namely, that you are entitled to a higher standard if you apply for assisted death—the Minister said that that might well be contrary to the law, but put that to one side: we should do our best for everybody in relation to palliative care, and you should not get a special advantage if you apply for an assisted death. Secondly and separately, of course, nobody wants the absence of palliative care to be the reason you apply for an assisted death, but we have to give everybody this choice on the basis of the way the world is for them. It should not, for example, be available only in the areas where the best medical attention is available. As long as you know what you are entitled to, it should be available to everybody, not just those who live in Oxford or Cambridge or those who live close to St Thomas’ Hospital and other palliative care places.

The various amendments are all twists on those themes. My view is that we should make sure that they have the right information, and they should have access to a specialist who will tell them it if they want it, but I think the Bill does that. Although I am open to any discussion people want, I think we have done enough and addressed head-on these issues, so I invite the noble Baroness to withdraw her amendment.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 16th January 2026 Lords Chamber

For the other amendments in this group, on which I make no comment, any workability concerns are likely to be less significant. While these are choices for noble Lords, they may introduce inconsistencies and ambiguities to the Bill. As noble Lords will be aware, and as we discussed earlier, these amendments have not had technical drafting support from officials, so the way they are currently drafted means they may not be fully workable, effective or enforceable.

[Lord Falconer of Thoroton (Lab)]

I am grateful to all noble Lords who have contributed to this important debate. I will deal first with what the noble Lord, Lord Deben, said. Of course I have to listen and make changes; I am not Stonewall Jackson—a tactical genius who died at 39. I am a man trying to do his best aged 74, so I am in a completely different situation. However, the noble Lord makes an important point. I have to convince the House that I am listening and, if sensible proposals are put, I must deal with them. I believe that has been my attitude throughout.

I cite by way of example the very sensible proposals made in relation to involving the multidisciplinary team looking after somebody and incorporating that into the Bill. I am working to try to achieve that. Proposals were made that people between 18 and 25 might be especially vulnerable and need extra protection; I have sought to develop proposals on that. Another example is 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. Again, special provision should perhaps be made for them. I mention these points only to indicate that, far from being Stonewall Jackson, I am the House of Lords trying to do its best to make sure that we improve the workability of the Bill.

In that spirit, I turn to these amendments. My noble friend Lady Merron has gone through the technical problems with Amendment 27. For example, it refers to somebody being referred to an independent voluntary assisted dying service, which might or might not be sensible. I suspect that the later proposals from the noble Lord, Lord Birt, might relate to that. The noble Baroness, Lady Finlay, was making the wider point, which she expressed very clearly, that you should not be making a decision about whether you want an assisted death until you have been fully informed about all the consequences and the processes. She referred to a number of issues, including diagnosis, prognosis and the effect of an assisted death in terms of the substance.

In my respectful submission, the Bill reflects exactly the points that she is making, namely that there needs to be proper information made available to the patient by statute. I draw noble Lords’ attention to Clause 5(5), on the preliminary discussion that has to be recorded. It says:

“If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must explain to and discuss with that person—(a) the person’s diagnosis and prognosis; (b) any treatment available and the likely effect of it; (c) all appropriate palliative, hospice or other care, including symptom management and psychological support, and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion”.


All of that has to be available at the preliminary discussion.

Then, noble Lords will remember that there are two doctors who have to look at it: the co-ordinating doctor and then the independent doctor. Both doctors must, pursuant to Clause 12(2)(c) of the Bill,

“explain to and discuss with the person being assessed—(i) the person’s diagnosis and prognosis; (ii) any treatment available and the likely effect of it; (iii) any available palliative, hospice or other care, including symptom management and psychological support; (iv) the nature of the substance that is to be provided to assist the person to end their own life (including how it will bring about death and how it will be administered)”.

The panel has to be satisfied that all these processes have been gone through. I completely agree with the underlying proposition of Amendment 27, which is that a person should be fully informed—though it is Amendment 42 that puts it in those terms. However, I believe that the Bill has both made provision for that and has the means of enforcing it through the panel.

[Baroness O'Loan (CB)]

I am grateful to the noble and learned Lord for giving way. Could he clarify what is meant by Clause 12(2)(c)(iii) when it refers to

“any available palliative, hospice or other care”?

We know that palliative and hospice care is available if you can travel to it or if you live in a particular area, but it is not available in a very significant number of areas. So what is meant by “available” in that context?

[Lord Falconer of Thoroton (Lab)]

“Available” in that context obviously means available in a practical sense for that particular patient. If you live in the western part of England and there is palliative care of a particular sort available in a place you cannot access, that would not be “available”.

My noble friend Lady Merron indicated what the effect of Amendment 28 is, which was again proposed by the noble Baroness, Lady Finlay. The effect is that there are two additional requirements before you are eligible for an assisted death: first, that you are eligible for certain specific benefits available at end of life; and, secondly, that there has been a home visit by a GP to consider it.

Neither of those is appropriate for eligibility requirements for an assisted death. As my noble friend Lady Merron said, you might well not be eligible for particular benefits because, for example, they are means tested and you are above the means. It would be wholly wrong for that to prevent you getting an assisted death if you are otherwise entitled to it. Again, I do not think that the purpose of the noble Baroness, Lady Finlay, advancing that provision was to say, “You’ve got to satisfy these specific requirements”, with all the problems my noble friend Lady Merron indicated.

What I think she was getting at is that you have to be sure that financial circumstance—being short of money—is not a relevant reason for an assisted death. I put forward the Bill on the basis that choice is the key thing. Your financial position might be an element in what makes you reach a decision. From the way that the safeguards are put in the Bill, they are trying to ensure it is your decision, freely made.

[Lord Harper (Con)]

I am slightly incredulous about this, so I am just going to make sure I understand the noble and learned Lord correctly. As we also heard earlier from the noble Baroness, Lady Jay, he is talking about someone’s autonomy. If you are in a financial position where you feel you are unable to live properly because you have no money, and as a result of that you decide you want to end your life, that is not a freely reached decision; that is being done because of your circumstances. Is he really saying that he is okay with poor people ending their lives, with the assistance of others, because they are poor? That is what it sounds like. All we are talking about with these amendments is putting in provisions to make sure that is not the case. That is not paternalistic; it is protecting people. Exactly as my noble friend Lord Deben said, that is what we should be doing in this House.

[Lord Falconer of Thoroton (Lab)]

I am saying that what the Bill does is allow you to make your own decision. I am strongly against saying poor people should not have that choice, which appears to be what the noble Lord, Lord Harper, is saying. The evidence from abroad is that it is people from perhaps more financially secure circumstances who make this sort of choice.

[Lord Harper (Con)]

I am going to come back once more, because the noble and learned Lord suggested why I was saying what I was saying, which is absolutely not the case. What I am saying is that if someone is making the decision because they feel pressured because of their financial circumstances, that is not a free choice; that is a choice that is being forced upon someone by their circumstances. They are not in an equal position to someone with resources. That would be very wrong, and I think people would be horrified that he is suggesting that someone, because of their financial circumstances, should be more likely to end their life than someone else.

[Lord Falconer of Thoroton (Lab)]

I am saying it is their choice.

I will go on to Amendment 31 in the name of the noble Baroness, Lady Ritchie of Downpatrick, referred to by the noble Baroness, Lady Berger, in relation to the issue. The noble Baroness, Lady Berger, is saying on behalf of the noble Baroness, Lady Ritchie of Downpatrick, that it must be their own request for an assisted death. The whole Bill is posited on the proposition that the person making the request has to be doing it as their own free choice. I draw attention in that respect to Clause 1(1)(a),

“has the capacity to make a decision to end their own life”,

then Clause 1(2),

“has a clear, settled and informed wish to end their own life, and … has made the decision that they wish to end their own life voluntarily and has not been coerced”.

Then, if one goes over the page to the conditions, there is Clause 8(1):

“A person who wishes to be provided with assistance … must make a declaration to that effect”.


The only concession made is in Clause 21 on the declaration. Clause 21(1) states:

“This section applies where a person intending to make a first declaration or a second declaration … declares to a proxy that they are unable to sign their own name”.


It allows a proxy to sign their name. The noble Baroness, Lady Berger, and I are both saying that it has to be you who does it, the person who wants it, the patient. My own view, having consulted on this, is that that is absolutely clear under the Bill and that the terms of the amendment would make absolutely no difference to it legally. I make clear that the policy intent that the noble Baroness, Lady Berger, wishes to achieve is exactly the policy intent that has been achieved.

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[Baroness Lawlor (Con)]

I thank the noble and learned Lord the sponsor for his response, and I agree with him on Clause 1(1), as I said. However, my amendment seeks to bring the same precise language to subsections (2) and (3), because the conditions are not set out in the same way as they are in subsection (1); they are more descriptive. I tabled the amendments for that reason.

[Lord Falconer of Thoroton (Lab)]

They are more descriptive, but the provisions say “must” each time. Clause 32 says that someone can escape the consequences of the Suicide Act only if they have complied with all the provisions. I in no way disagree with the point that the noble Baroness is making but, as a drafting legal matter, I think it is covered.

[Baroness Lawlor (Con)]

Is the “must” there only a “may”?

[Lord Falconer of Thoroton (Lab)]

I am sorry; I did not quite get that.

[Baroness Lawlor (Con)]

I find the “must” in Clause 1(3) a bit puzzling. The noble and learned Lord can see that it reads:

“The steps to be taken under sections 8, 10, 11 and 19 must be taken … when the terminally ill person is in England or Wales, and … in the case of the steps under sections 10 and 11, by persons in England or Wales”.


My question of clarification is whether the steps in Sections 8, 10, 11 and 19 must be taken; is it not that they only may be taken?

[Lord Falconer of Thoroton (Lab)]

It is. The reason the two are different is that Clause 1(2) describes what is coming later in Clauses 8 to 30; Clause 1(3) is a mandatory requirement that the steps that come later have to take place when the person is in England or Wales. So they do different things. Subsection (2) is descriptive, and subsection (3) is a legal requirement. I am very happy to say that the shadow Attorney-General is nodding, which is very strengthening on this.

The one point that I have not dealt with properly, or at all, is that which the noble Baroness, Lady Berridge, made about the interaction between the Mental Health Act and the Bill. I was not sure which specific amendment she was referring to; it may have been Amendment 38, but I do not know. However, as far as I can see, there is no legal difficulty in this Bill sitting with the Mental Health Act because, as long as these conditions are satisfied, the patient is entitled to have an assisted death. There is nothing in the Mental Health Act that would prevent that. I am more than happy to have a more detailed conversation with the noble Baroness and Professor Ruck Keene, if she wishes to bring him along and he is willing to come.

I hope that I have dealt with every amendment put forward.

[Lord Deben (Con)]

Just one point, as a matter of personal explanation, I did not call the noble and learned Lord Stonewall; it was the noble Lord, Lord Empey, who did so and I do not want to take his excellent comment away from him.

[Lord Falconer of Thoroton (Lab)]

I apologise. I do not know whether the noble Lord feels that he is withdrawing a compliment or withdrawing an insult, but I get what he is doing.

To the noble Baroness, Lady Cash, before she gets to her feet, I say that she is right. In relation to the ECHR points that were raised by, I think, Mr Stevenson, who was the commissioner—I have the name wrong.

[Baroness Cash (Con)]

It was Alasdair Henderson, who gave evidence to the Select Committee and raised a lot of the concerns that have been reiterated by the noble Baroness, Lady Berger, and others today. Indeed, the point that the noble and learned Lord makes about being poor and having a choice is something that is really of concern to the EHRC, which raised that in evidence orally and in writing and, subsequently, in the letter to the noble and learned Lord, Lord Hope. Indirect discrimination, because of circumstances, is one of the problems with this Bill that troubles us most greatly. That has not been addressed, which is why the EHRC, without taking a position on the principle, has asked for that clarification. I would like to know whether it needs to write formally to request that, or is its evidence before the Select Committee and its subsequent letter adequate? Can the noble and learned Lord please clarify?

[Lord Falconer of Thoroton (Lab)]

The commissioner for the EHRC raised a number of points in relation to the risk of discrimination under the convention. The Government have done an equality impact assessment and, broadly, they adopt the approach that it is unlikely that the courts will interfere in a deliberate choice made by the Government, or the legislature in this case, as to what the limits would be of an assisted dying Bill. I agree strongly with that. It is the approach that the English courts have reflected in relation to assisted dying, and it is the approach that the European Court of Human Rights has taken as well. I therefore do not think that the views expressed by the commissioner to the Select Committee are right, but I am more than happy if the noble Baroness, Lady Cash, would like to raise specific ones—or all of them—she can do so with me, and I can raise them with the Government as well.

[Baroness Berger (Lab)]

On this particular point, there is something fundamental that would equip all of us in this Committee, irrespective of our views on the principle of the Bill before us, which is the equality impact assessment—it is lacking. The equality impact assessment came forward from the Government only at the end of Committee in the House of Commons. The response from the Equality and Human Rights Commission is that that assessment is wholly inadequate and is in no way commensurate to the length and detail that we would expect on a government Bill.

We have obviously already heard from the Minister in response to the current set of amendments, but I would urge that, in future responses, we hear from the Government about whether they might be forthcoming with an updated equality impact assessment in order to inform our discussions, debates and deliberations on what we might be considering going forward. So far, what we have heard from the Equality and Human Rights Commission is that we do not have the information before us. As the commission responsible for this legislation, it has some serious concerns, particularly in terms of the societal impact of this Bill that has in no way been addressed or deliberated by the Government in the way that it would have been otherwise.

[Lord Falconer of Thoroton (Lab)]

First, I do not agree with the proposition that it was a bad equality impact assessment. Secondly, the noble Baroness, Lady Cash, legitimately raised the question of differing economic circumstances and whether that could that lead to discrimination. If differing economic circumstances could lead to discrimination—the point that she quite properly raised—then almost every single piece of assisted dying law throughout Europe would be contrary to the European Convention on Human Rights. One has to provide some degree of realism about what the limits of the law are. What the courts here and in Europe are saying is that this is a sensitive and delicate area where they will defer to legislatures.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

The noble Baroness’s hands are not tied behind her back. Ultimately, whatever the EHRC says and whatever the equality assessment said, we have to decide here whether we believe that, because of problems surrounding the convention, we should make amendments. I am very happy to discuss any of them. It is clear—Stonewall Jackson is back—that I am not that persuaded that we need changes, but I am more than happy to discuss them. I would welcome a discussion with the noble Baroness, and anybody else who wants to come along, about amendments that she is particularly worried about. I am starting from the proposition, which is reflected in the equality assessment, that the courts are very unlikely to make much change here. I am fortified in believing that by what the noble and learned Baroness, Lady Butler-Sloss, said. I am happy to take any other questions.

[Baroness Finlay of Llandaff (CB)]

My Lords, this has in many ways been a fascinating debate, which has clearly illustrated the problems of this being a Private Member’s Bill and the difficulties that we are having in trying to raise issues and draft amendments to improve it. There have been a lot of suggestions about how the Bill could be made safer because of the concerns about coercion and protection for people. I will not take time commenting on every comment made, but I am grateful for all of them.

On the lasting power of attorney, I caution against dismissing this going into the Bill, given the number of complaints that go to the Court of Protection, where lasting powers of attorney have been abused by people who hold them. That needs to be looked at carefully.

I appreciate the fact that the noble and learned Lord, Lord Falconer, has begun to look at enhanced assessment for people who may be particularly vulnerable. It would be helpful to know when those amendments will be before us for us to consider them and whether that will be before we get into further rounds of amendments, which we will then be told are poorly drafted or not workable.

I am very grateful to the noble Lord, Lord Wolfson of Tredegar, for re-emphasising the criteria about having a fully informed decision, including the capacity to make that decision voluntarily. If I heard the noble and learned Lord, Lord Falconer, correctly, it sounded to me as though he is willing to accept my Amendment 42, which seeks to insert the word “fully” ahead of the word “informed”, to ensure that a fully informed decision is being taken.

I will make some comments on poverty. Unfortunately—

[Lord Falconer of Thoroton (Lab)]

Sorry, I do not want to create false hope. I do not believe that the word “fully” is necessary. The noble Baroness is right to say that I never made that clear. I do not believe that it is necessary because I went through all the provisions that required the information to be given anyway.

[Baroness Finlay of Llandaff (CB)]

That is disappointing, because the Committee, I think, would greatly welcome recognition from the noble and learned Lord that some of the things that we are trying to put down are seeking to improve the Bill. Perhaps we could work further on them.

On poverty, unfortunately, the SR1 does not happen automatically; there is no automatic trigger. The point of that amendment was that one wants to make sure that a person who may be in real financial straits and who has never known that there may be benefits for which they are eligible has someone ask them, “Are you finding things particularly difficult? Do you know that there are some benefits that might help improve your quality of life?”, irrespective of whether they do or do not wish to proceed. It is not to stop them; it is to make sure that they can access what they need.

The Ontario coroner’s review reports that there are people who, because of financial stringencies, have sought an assisted death—and been approved for one—but then dropped that request when there has been fundraising and donors have come forward to bail them out of their difficult circumstances. Saying that there are no such cases is really difficult. As I understand it, it is our duty to society to try to narrow the gaps on poverty and not just accept that, if you are in poverty, you may want to take this decision. There were some expressions of slight horror, I think, at the way in which the noble and learned Lord expressed his dismissal of poverty.

There is one final thing that I want to clarify; I feel, professionally, that I must. The noble Lord, Lord Markham, has referred on a few occasions to his mother being “helped on her way”. I am sure that the doctor was not giving the noble Lord’s mother a massive and lethal overdose of drugs, which is what would happen under this Bill. They may well have been giving her a little more analgesia or some other medication in order for her to be comfortable. That is routine clinical practice when people are dying. At that point, we as clinicians will say to the family, “Look, they don’t seem comfortable and they really are near the end”, and we will give a bit more analgesia—possibly an anxiolytic as well—which will allow the person to gently let go of life and die.

We know that pain is a potent driver of respiration and that people cannot let go of life until they are comfortable and out of pain. Sometimes it is a small dose; sometimes it is a larger dose. That is not what we are talking about in this Bill. It is important that the people out there who are listening to this debate do not think that we are going around shortening life by giving people the dose of analgesia or the anxiolytic that they need at the end of their life.

I am not going to go through all the other comments that have been made because of time—this has been a long and very informed debate—except to request that the equality impact assessment be looked at again. Although it may not be the opinion of the noble and learned Lord that it is inadequate, we have heard substantially from people who know equality impact assessments well that they are unhappy with it. I do not see the harm in it being revisited and retabled for us so that we can have an up-to-date version. Perhaps the same should go for the impact assessment, since there are concerns that the numbers in it may be inappropriately low. With that, I beg leave to withdraw my amendment.

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[Baroness Lawlor (Con)]

My Lords, I support all six sub-paragraphs in the amendment in the name of the noble Baroness, Lady Foster of Aghadrumsee, which was moved by the noble Lord, Lord Weir of Ballyholme, and is supported by the noble Baroness, Lady Fox, and the noble Lord, Lord Empey. However, I urge that there should be an additional sub-paragraph. As they stand, the sub-paragraphs in Amendment 30 provide a checklist to help those deciding whether to allow an assisted suicide to go ahead to determine whether the person has been led to the decision by an improper type of motivation.

Some of the types of motivation listed here are improper because, if permitted, they would risk leading to a situation where people, under some circumstances, are pressed or influenced into suicide as a way of solving social problems. We have heard quite a bit about that today.

My extra subclause mentions families explicitly and would add to the idea of not being a burden on the family that of not causing distress. It is all too easy to imagine families pressing, influencing, perhaps coercing, an ill person into a suicide they do not genuinely desire by appealing to altruistic feelings that they do not want to be a burden or to cause distress, especially to those they most love. Even worse, it is all too easy to imagine how, in the dismal future of a world where the Bill becomes law—

[Lord Falconer of Thoroton (Lab)]

Just so that I can properly respond to this, which amendment in the group is this addressed to?

[Baroness Lawlor (Con)]

It is addressed to Amendment 30ZA amending Amendment 30. It is on page 2 of Today’s Lists.

It is all too easy imagine such appeals by a family to altruistic feelings. They do not want to cause distress or be a burden, especially to those they most love. In the dismal world where the Bill has become law, such ways of thinking will have become a social norm. That is very easy to imagine.

My amendment is designed to make that future a little less dismal, by putting in an obstacle to this insidious form of coercion by those the person in question may love most.

--- Later in debate ---

As noble Lords will be aware, these amendments have not had technical drafting support from officials. The issues raised are, rightly, a matter for noble Lords to consider and decide but, given the way that these amendments are currently drafted, I note that they may require further consideration to make them fully workable, effective or enforceable.

[Lord Falconer of Thoroton (Lab)]

I am grateful to noble Lords who have contributed to this debate. I will make four quick preliminary points.

First, I join everybody in welcoming back the noble Baroness, Lady Campbell of Surbiton. The noble Baroness, Lady Campbell of Surbiton, and I have been debating this for at least 20 years, or maybe longer. It is very good that she is still with us and doing it in the same way.

Secondly, I mean no disrespect to the noble Baroness, Lady Monckton of Dallington Forest, but I will not deal with the points that she made because in a sense—and I quite understand why—they have nothing to do with these particular amendments, which she acknowledged. However, I am more than happy to talk to her about the process issues and I would welcome a conversation with her.

Thirdly, the noble Baroness, Lady Finlay of Llandaff, asked whether it is a medical procedure and whether it is part of the range of treatments that have to be offered or discussed with the patient. In relation to whether it is a medical procedure, the noble Baroness will know that the Bill provides that the actual provision of assistance has to be given by a doctor. I do not know what the consequences are in relation to either the medical or the legal world, but that is the medical connection.

In relation to whether it has to be raised if it is a possible medical procedure, the answer is unequivocally not, because the Bill specifically provides in Clause 5(1) that:

“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.


So the matter is put completely beyond doubt in the Bill.

I turn to the substance of the amendments, which fall into three categories. The first is the amendment ably moved by the noble Lord, Lord Weir, to the effect that certain motivations, if they exist, should ban or prohibit an assisted death. Secondly, an amendment says that the only circumstances in which you can have an assisted death are when you are acting for your own sake rather than for the benefit of others. The third category is where you are acting for the primary purpose of avoiding physical pain. All the amendments in this group are designed to try to limit it to certain permitted motivations only.

I want to adopt completely the speech of the noble Lord, Lord Markham, who described what the Bill is seeking to do: to give people who are diagnosed as having six months or less to live the choice about how their life ends in those six months. The choice they make may be motivated by a whole range of factors. The pain may be too much. They may not be able to bear the thought of being reliant on their children, not because they see themselves as a burden but because the whole change in the relationship is just unbearable. They may not want to go through that period while they await death and there is nothing else. They may find the whole sense that they are incurring expenditure for somebody else so awful for them that it makes them feel bad and they do not want to go through it.

I go through all those possibilities simply to indicate that the reasons why you may want an assisted death vary from person to person. From my own experience, it is very often what we would regard as pain and suffering that causes it, but what causes distress or unbearability to people is not always, and may not often be, the pain or the suffering; it is the whole circumstances in which they find themselves during that last six months.

There is an incredibly good article by somebody on what their mother, who had all the access to palliative care, said was awful about their circumstances. All the pain relief was there and everybody had come to say goodbye, but then weeks went by when there was nothing but staring at the wall in a period of not quite being able to engage with other people and wanting it to end. Would they qualify if, for example, pain and suffering was the requirement? No pain would be identified. The suffering would come from the unbearability of it.

The Bill is constructed on the basis that the person who has six months or less to live should have the choice. There are ideas to bring in these particular things. Do they feel they are a burden to somebody? Do financial considerations apply? They might well apply because there is only a limited amount of money to go around, so they might contribute. Is the panel or the doctor supposed to parse the precise part that every one of these motivations plays? In my view, that would be a very bad way of constructing the Bill. I am very happy to explain how I got there. I think it is a choice, and pain and suffering will often be the choice. If you are serious about putting the patient first, you have to give them the choice and not be in a position where you are trying to look into a whole range of multiple motivations.

[Lord Harper (Con)]

I am grateful to the noble and learned Lord for once again giving way. Can I just press him on this choice point? Although I do not agree with the Bill, there is an argument to be made for giving people a completely free choice, but does he accept that many people in society have many constraints on their ability to make choices? These amendments are trying to make sure they are making a free choice, not one that has been constrained by their other circumstances. Does the noble and learned Lord accept that it is a problem if someone has all these constraints on them and is not really making a free and unconstrained choice, which many people in this Committee would be able to make? Does he even accept that it is a problem that, although it may be difficult, potentially needs fixing?

[Lord Falconer of Thoroton (Lab)]

It is very difficult and would be inappropriate to try to examine exactly why people make particular choices. Look at the first Amendment 30 proposal:

“not wanting to be a burden on others or on public services”.

Why does the thought that they are going to be a burden on their children become an unbearable thing for some people to go through? They might make that choice because of what has gone on in their lives, but it is totally inappropriate, impossible and wrong in a Bill such as this to say that we have to ask why they are in that position.

The next proposal refers to a mental disorder—

[Baroness Fox of Buckley (Non-Afl)]

If the doctor was required to ask what someone’s motivation was, and the patient said, “I just really don’t want to be a burden on my family; it’s too intolerable”, but they have been told they are terminally ill relatively recently, is it not possible that there could be an intervention that would say, “Maybe you won’t be a burden” and to go and talk to their family? One of the problems is that it is assumed the endpoint is there already, whereas if you ask the question, there is a possibility that you could offer an alternative. If somebody says, “I can’t face the pain”, you can tell them there is pain relief available. This is not trying to undermine the Bill totally, but it is possible that if the doctor responds with some options, the patient would be on their way. Why not ask for the motivation? That would surely be positive.

[Lord Falconer of Thoroton (Lab)]

That is a very important question. There is a difference between excluding certain motivations, which is what Amendment 30 would do, and asking why, which the noble Baroness, Lady Smith of Newnham, raised. I see force in the proposition that somewhere in the Bill, somebody has to ask why—for two reasons. First, as was raised previously, if you ask why, it might throw some light on circumstances that suggest classic coercion. Secondly, and separately, it might deal with exactly what the noble Baroness, Lady Fox, is referring to.

Take an utterly absurd example: someone says, “I want an assisted death because I cannot deal with the noise that’s going on in my head”. The doctor could then reply, “Well, actually, that’s a building site that will stop tomorrow”. If it is something like that, one should know.

I am attracted by the idea of something in the Bill that says why. That has to be asked somewhere down the line. This also connects with our previous discussions about the multidisciplinary team engaged in looking after the person, which might well have a much better view about why.

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[Lord Deben (Con)]

Can I encourage the noble and learned Lord in what he has just said? I was going to intervene earlier, but decided I would wait for this moment. I am afraid the noble Baroness, Lady Whitaker, almost drove me to get up; she can say that she does not want to be a burden because she will not be one and I am quite sure her family would not let her be one. The truth of the matter is that we are concerned about making sure that people are given every opportunity to put themselves in the best position in the last six months of their lives. If the noble and learned Lord can find a way of having these questions asked without the disadvantage—I understand the point he makes—it would give us a great deal of support. I would like him to do that.

[Lord Falconer of Thoroton (Lab)]

I hope I have been clear about not liking the amendments as they are and that I am keen to see whether what the noble Baronesses, Lady Smith of Newnham and Lady Fox, said can be incorporated somewhere in the Bill. It may well connect with things we have said already. I hope I have made my position clear.

[Baroness Grey-Thompson (CB)]

My Lords, I feel a sense of disquiet listening to the noble and learned Lord’s response, especially when he talked about privilege. I have a huge amount of privilege in my life. If I need a new wheelchair, I can buy one. I can put a lift in my house. I can buy a car and pay for the hand controls. When I need a van with a tail lift, I can pay for that. Is he really saying that lack of privilege plays no part in somebody choosing to end their life?

[Lord Falconer of Thoroton (Lab)]

I am saying that everybody should have the choice. The way that one makes the choice is inevitably determined by how one got to the point where one had to make it. It is an impossible question. Why do we all make choices? They are all affected. Some people make them because they are richer or poorer than others, but I am not in favour of drawing financial distinctions. I hope that, in the light of my remarks, the noble Baroness— I cannot remember who started this—will withdraw her amendment.

[Baroness Fox of Buckley (Non-Afl)]

I blame myself for this, but the noble and learned Lord was about to say something about the mental health issue when I made a point, and we have not gone back to it. That is a very distinct question, so will he reflect on it?

[Lord Falconer of Thoroton (Lab)]

This is not a technical point, but the way the amendment is drafted is very confusing. If your mental illness makes you come to this conclusion, that may well go to capacity. I am not clear what is being got at in relation to the mental health issue. However, if the position is that you may have a mental health condition but are perfectly capable of making a decision, you should be allowed to make it.

[Baroness Lawlor (Con)]

My Lords, I thank all noble Lords who have contributed to this group. I am very grateful for the attention focused on the problems that people face in their lives, particularly those who have exceptional difficulties in exercising freedoms that we, as has been pointed out, all take for granted.

This suite of amendments sought to try to restrict the possibility of others pressurising people, particularly people in this very difficult position, to take a decision to seek assisted suicide under the Bill which they might not otherwise have taken had they had the support and had they not had the disabilities which have been mentioned in these amendments. They also seek to restrict the Bill to those who wanted to relieve pain only.

I am afraid I have been a bit disappointed, if I may say, with the noble and learned Lord the sponsor. In stressing autonomy and choice by one person, he is, I fear—perhaps inadvertently—neglecting the autonomy and choice of those who may want to live with their disability, with whatever ailment they have been born with or developed over their life but are facing terminal illness. We are concentrating on the autonomy of the person, but we are not giving enough attention in the Bill, I fear, to those who feel pressure, who feel they are a burden and who wish to avoid causing distress to those they love.

In doing so, we are doing a great disservice to the men and women of this country who do not want to be a burden to those they love. That burden is increased by virtue of the cost of living and the difficulties they have in making choices. We are putting the choice of those who want it and who have firm, clear intent, over those who may not wish to do it but feel pressured for the reasons of their life and their circumstances into doing so. I shall withdraw my amendment for now, but I hope to bring it back, if the noble Baroness, Lady Foster, wishes to bring hers back, and support the other amendments in this group.

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[Lord Frost (Non-Afl)]

My Lords, I have four amendments which constitute the entirety of this group: Amendments 34, 121, 138 and 153. I am very grateful to the noble Baronesses, Lady Fox of Buckley and Lady Lawlor, and the noble Lord, Lord Harper, for putting their name to these amendments.

I will begin by making a purely process point. Were the underlying change I propose to find favour, as the explanatory statement on the Marshalled List makes clear, a large number of textual amendments would in fact be needed to ensure internal coherence within the Bill. For the convenience of the House, I have not tabled all those amendments now. In this sense, my amendments are exploratory and probing. The four specific amendments I have chosen, which are on the Marshalled List, have been chosen because they represent the first occasion on which a particular type of change would be required.

To summarise, Amendment 34 represents the first occasion in the Bill in which the phrase

“assistance to end their own life”

occurs; Amendment 121 is similarly the first occasion in which the phrase “voluntary assisted dying commissioner” occurs; Amendment 138 is the first occasion in which the phrase “assisted dying review panel” occurs; and Amendment 153 is the first occasion in which the simple word “assistance” occurs: a word that is not in fact defined in isolation but is taken to be short for the phrase “provision of assistance to a person to end their own life”.

Let me now turn to the substance of these amendments. I put them forward for two major underlying reasons. First, it is bad for us as legislators to attempt to legislate in such ambiguous language. Secondly, such language substantively carries real risks for at least some of those who may wish to avail themselves of the provisions of this Bill or have it put to them that they should.

All these amendments have one thing in common. They would replace phrases including the word “assisted” or “assistance” with something much clearer—an explicit reference to what is actually provided for in the Bill, the provision of

“medical help to commit suicide by provision of lethal drugs”.

I was aware when I tabled these amendments—some noble Lords have subsequently mentioned this to me—that the phrase “commit suicide” raises particular wider issues. I understand that and I will come back to it, but let me first proceed with the text as tabled.

First, it is a well-understood principle in drafting legislation—the noble Lord, Lord Deben, made this point earlier today—that it should be unambiguously clear. In this Bill, we have a phrase which covers a wide range of possible meanings. The core phrase,

“assistance to end their own life”,

could be read in a wide variety of ways. It could be read as meaning making somebody comfortable in their last hours. It could be read as withdrawing food and drink in a medical setting. It could even be read as an actual act of killing by another party at the request of the individual concerned. It could be read as many other things too, including of course the thing that is actually provided for by this Bill.

The polling about this Bill and the discussion around it shows there are many misunderstandings about what it does and what it allows. Surveys and experimental research show that public responses to questions about legality and support are very sensitive to the wording chosen. That is why it is important to be clear. My amendment would do that by providing clear language. It is possibly language that would be regarded by some as forceful, but nevertheless it is clear.

[Lord Falconer of Thoroton (Lab)]

I apologise for intervening, but this is quite important to the debate. Is the noble Lord saying that his amendments—I take it they are simply exemplar ones—would change the meaning of the Bill, or are they just for the purposes of, as it were, better public understanding?

[Lord Frost (Non-Afl)]

Yes, they are intended to clarify what the Bill actually provides for. I will explain further. The provision of medical help to commit suicide by the provision of lethal drugs is what the Bill does. That is what it does and that is what it should say that it does. I would say in passing that it is particularly important, since the Bill leaves so much to delegated powers, that we should be unambiguous about the particular power that is provided for.

Secondly, this House and this Parliament should always be clear to ourselves what we are doing when we are legislating. We should try and avoid euphemism. Where we deal with difficult topics, I think it is good to avoid distancing ourselves from uncomfortable realities in legislation by using abstractions. I refer to the 2024 guidance to parliamentary draftsmen which says:

“Write in modern, standard English using vocabulary which reflects ordinary general usage”.


It goes on to say you should

“use precise and concrete words rather than vague and abstract words”.

It is noticeable the most common term in this Bill for the activity for which it provides is the single word “assistance”. The common meaning of that word, I think it is fair to say, does not include providing for the death of an individual. In this Bill, that word has become a euphemistic term of art. Indeed, it is easy to imagine it becoming a jargon word in which a practitioner says to a patient, “Have you thought of asking for assistance?”, as a comfortable way to suggest to vulnerable people that taking their own life might not be something to be too concerned about, or even in the worst case, almost hide from them in the initial discussion what is actually being discussed.

We can see the distancing function of this word, the Latinate “assistance”, if we replace it, as my amendment would, with the Anglo-Saxon “help”. If the Bill used “help”, the jarring nature of the contrast between that word and the action that is provided for by the Bill would, I think, be too great to bear. I will not go into detail for reasons of time, but exactly the same concern arises from the Bill’s use of the phrase, “approved substance” when what is meant is a lethal drug.

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[Lord Falconer of Thoroton (Lab)]

The purpose of making the amendments advanced by the noble Lord, Lord Frost, is clarity. We have to look at this not as some pamphlet but as a piece of legislation. The key thing is that it conveys what it means. The relevant words in the Bill at the moment are:

“A terminally ill person in England or Wales … may, on request, be provided in England or Wales with assistance to end their own life in accordance with sections 8 to 30”.


In my view, that could not be clearer. It is saying that the Bill is about providing assistance to end their own life in accordance with Sections 8 to 30.

The noble Lord, Lord Frost, wishes to change the words

“assistance to end their own life”

to

“medical help to commit suicide by provision of lethal drugs”.

The language of the noble Lord, Lord Frost, is both more technical and much looser. Simply as a matter of legal drafting, the draft as it is at the moment is much clearer and accurately describes what would happen. It is not my drafting or that of the sponsor in the other place; it is the drafting of a professional draftsman and I strongly urge the Committee to stick with the non-emotional, accurate, clear drafting that is there already.

[Lord Frost (Non-Afl)]

My Lords, I thank all those who have supported and engaged with the substance of my amendments. I think we have had a good debate. I also thank the Minister for acknowledging that these amendments would not cause significant or major workability issues—I think her words were something like that—at least on a first viewing. That is important.

I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, the sponsor of the Bill, but I think we will have to disagree on what language is clear and what is not. I continue to believe that the form of words in my amendments is much clearer and sharper, whereas the language in the Bill covers a multitude of possible actions.

To conclude, I continue to believe that there is an important and dangerous ambiguity at the heart of the Bill, which we can clear up by focusing on the language. Therefore, we will probably have to return to this—if we ever get that far. I beg leave to withdraw the amendment.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 23rd January 2026 Lords Chamber

[Lord Empey (UUP)]

My Lords, I wonder whether the proposer of these amendments, the noble Lord, Lord Birt, can tell us whether he has any indication from the relevant royal colleges that their members would be available for this service. The idea is that you will have senior clinicians on a 24-hour basis, 365 days per year. I wish our facilities had sufficient capacity, but it is nonsense; there is not the remotest possibility of the National Health Service and the relevant clinicians being available.

If I am wrong, and the noble Lord, Lord Birt, has an indication from them that their members will be available, the sooner we get that information here the better—but I just cannot see it. We cannot even deal with what we have at the moment, never mind adding to the burden.

On another issue, I must say to the noble and learned Lord, Lord Falconer, that it is 12.10 pm. By the time we finish this group, we will be at the lunch break. I have to say to him, as I said last week, that if we go on at the rate we are going, he is partly responsible. He needs to bring forward meaningful amendments, so that we can see the colour of his money now and not in weeks to come.

[Lord Falconer of Thoroton (Lab)]

We are debating other people’s amendments at the moment. This debate has ranged pretty far and wide. These are not my amendments; they raise three particular issues. First, should there be a new organisation, an assisted dying help service? Secondly, should we ensure a different and more expeditious series of arrangements than that put in my Bill? Thirdly, should the commissioner act only as a regulator? Those are the three essential parts. I think there is merit in much of what the noble Lord, Lord Birt, has said, but I am not in favour of an assisted dying help service. Further, my Bill sets out very detailed provisions for safeguards that are longer and less flexible than those proposed by the noble Lord, Lord Birt. As for the commissioner being solely a regulator, I am not in favour of that. I think we need a regulator and the CQC has been suggested in relation to that. That seems quite sensible. I simply say that we have ranged so far and wide that I am slightly miffed at the idea expressed by the noble Lord, Lord Empey, that I am detaining people from their lunch because we have had this long debate.

[Lord Empey (UUP)]

I have to say that that was not my intention—the noble and learned Lord knows that perfectly well. I raised the point merely to indicate the length of time that this is taking and that a lot of the proposals and amendments on the Marshalled List could be addressed if we had amendments put forward by the noble and learned Lord, which he indicated in an email last week would be forthcoming. They are not here.

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[Lord Gove (Con)]

My Lords, I am wholly in agreement with the noble Lord, Lord Rooker, and my noble friend Lord Deben, that greater clarity, both from the promoter of the Bill and from the Front Bench, would assist the Committee in making sure its mind could be made up on these delicate issues.

The noble Lord, Lord Birt, used to be my boss when I was a junior journalist at the BBC; I owe him a great deal. In framing this amendment, he has shown that a fine line, by insisting on speed and precision, can show us just what expedited delivery of a public service can achieve. If only the skill with which the noble Lord, Lord Birt, has ensured that the ratchet moves forward at speed in this legislation had been applied, for example, to our planning system, or to any of the other areas where government is laggard and failing. As the noble Baroness, Lady Fox of Buckley, pointed out, if the same degree of precision had been applied to the operation of our courts and tribunals, we would not need to be contemplating the end of trial by jury.

However, in putting forward this proposition, I fear that the noble Lord, Lord Birt, is guilty of falling prey to two fallacies. The first is the Gadarene swine fallacy: the idea that, because so many are moving in one direction, we must follow expeditiously. He cited the fact that Jersey has voted for a form of assisted dying, and we are aware the debates are carrying on in Scotland and Wales. I shall not go into the devolutionary and union ramifications of those debates here—we will return to those later; they are critically important. But, as was pointed out by the noble Baroness, Lady Berridge, the arc of history does not bend in any one particular direction, and certainly not in the direction that the noble Lord, Lord Birt, wishes to see it bend. We have been reminded this week that Denmark can say no to being told what to do by others, not just in geopolitics but in other areas as well. What we can learn from Denmark, and indeed from the French Senate, is that the consideration of the detail of legislation matters.

The other fallacy which was inherent in his speech is the Robespierre fallacy: the belief that one can discern and interpret the general will and then push in a particular direction. As we have heard on the Floor of this House, opinion polling on the question of assisted dying gives us almost the conclusions that we might want to have. I was struck by the opinion polling cited in the British Medical Journal, cited by the noble Baroness, Lady Finlay, which pointed out that the majority of those asked, when they were compelled to share what they thought assisted dying meant, thought that it either meant the withdrawal of existing treatment at a particular point, at the request of the patient, or improved palliative care. Of course, the noble Lord, Lord Markham, cited other opinion polling as well, but the critical thing is that opinion polling points in different directions. It causes me concern. But it is the purpose of this House and the purpose of legislators here not to attempt to discern the general will and to enact it, but to look at specific legislation and to decide whether it is fit for purpose.

That takes me to another point about the assisted dying help service: a question for the promoter of this amendment, the noble Lord, Lord Birt, for the promoter of the Bill, the noble and learned Lord, Lord Falconer, and for the Front Bench. It is undoubtedly the case that, if the amendment standing in his name and the name of the noble Lord, Lord Pannick, were agreed, the process would accelerate, relative to that which is contained within the Bill. Yet, at the same time, it is the case that a new service is being set up, which, as a number of colleagues here have pointed out, might draw resources away from other aspects of the NHS. How is it possible that a service that is set up explicitly to accelerate, to be a concierge service in that way, will also attract, be staffed and operate in a way which ensures that at every point, objective, neutral, balanced advice is offered? Is it not in the very nature of this service that those staffing it—and one has to ask who would volunteer or would be paid for that role—would become engineers of a particular purpose? Is it not the case that those who would move towards recruitment in this area would be people who would be motivated I am sure from the best and most idealistic of motives, but those who would want to advance the path to death and accelerate suicide rather than incur reflection?

That takes me to a question for the noble and learned Lord, Lord Falconer, who might say that this is an amendment from the Back Benches, not something that he has been party to and that we as the Committee might consider it overall. He might well say that he has his own timetable in this legislation to which he is attached, which he would like us to pay particular attention to as we reflect on the Bill. But the question for the noble and learned Lord, Lord Falconer, is: if he could, would he back the amendment of the noble Lords, Lord Birt and Lord Pannick? Is he in sympathy with the desire to accelerate this process? It is not enough for him to say, “Look, I haven’t put this forward”. The key question is: if he is in sympathy, will he say so, and if not, why not? If he believes he is not in sympathy, is that because he thinks it is right that there should be appropriate, greater reflection, and that there is something momentous about this decision? Is it also right that he believes that this would mean a diversion of resources?

[Lord Falconer of Thoroton (Lab)]

I support the safeguards in my Bill, because I think they are the right safeguards. So, I do not support the proposals made. The Bill has got to be properly safeguarded, and my Bill gets the balance right.

[Lord Gove (Con)]

I am grateful to the promoter of the Bill for that, but that is a broad defence of the legislation as written and it takes us to the critical question for the Minister, which relates both to resource and timing.

The Government have committed additional money for palliative care, for hospices, which is welcome: £100 million for adult care in hospices; £80 million for children’s care in hospices. But those who lead the hospice service say that this additional money has already been swallowed up in additional costs. It does not augment palliative care. Yet, money is inevitably going to be diverted, if we pass the amendment of the noble Lord, Lord Pannick, and set this service up, as the promoter of the Bill acknowledges. Yet, as the noble Lord, Lord Stevens, has pointed out, we have not had from the Government any adequate response on what additional resource might be devoted to palliative care, despite the fact that we had a national report into end-of-life care, produced by Marie Curie Cancer Care and others, more than 15 months ago. There has been no adequate response to that report. As the former Prime Minister, Gordon Brown, has said, it is unconscionable that we should pass the Bill until we have had that response from the Government. It would be illuminating to know what the Government’s plans are on resources, not just if the amendment is passed but for care overall.

There is another responsibility on the Front Bench as well. Is it the case that, in the particular framing of the Bill we have in front of us, a future Government or Administration could create the service that the noble Lord, Lord Birt, wants by the simple assertion of a statutory instrument, 90 minutes’ debate, no proper vote and then, suddenly, the creation of exactly what the noble Lord, Lord Birt, wants with his assisted dying help service? It will not be good enough for Ministers once again to talk about studied neutrality and to canter through the speech that may have been written for them by diligent public servants in their own department. We need to know: if the Bill is passed, could it be the case that the service that the noble Lord, Lord Birt, wants could be created by statutory instrument without appropriate scrutiny? Because if the Bill does mean that, then what we know is that we are creating a Bill with holes, opportunities, lacunae, slippery slopes, whatever language you may wish to use—a Bill which is, in itself, unsafe.

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[Baroness Blake of Leeds (Lab)]

I repeat that I am happy to write to noble Lords further on this point. I do not think that Members are going to move away from this point, so I am very happy to do that.

The noble Lord, Lord Gove, asked whether the assisted dying help service could be set up through statutory instrument, and I am happy to write to him to clarify that point. I will write to the noble Baroness, Lady Finlay, on the point of the constitution. That is the most straightforward way to deal with this.

With the undertaking that the Government will write on the points that have not been addressed, I hope noble Lords will understand that, on the areas that I have not raised, we cannot confirm that the amendments are workable. That is the point I must make. With those comments, I hope that the noble Lord will withdraw his amendment.

[Lord Falconer of Thoroton (Lab)]

I thank everybody who has contributed to this debate, in particular my noble friend Lady Blake, who ended up caught up in the eye of a storm that was not of her own making. I very much sympathise with her. I thank the noble Lord, Lord Kamall, for his mature and helpful interventions.

The amendments from the noble Lord, Lord Birt, would, as he said, effectively do three things. First, they would introduce a new organisation called the assisted dying help service that would be responsible for providing both the judgment and the navigation through the process of assisted dying. Secondly, they would give the assisted dying help service specific power and a timeline that is much shorter and more flexible than the one in the existing Bill. Thirdly, the noble Lord insisted that the commissioner not give guidance, provide leadership, collect information and make assessments as to what is going on. Instead, the commissioner would be solely a regulator, without monitoring and other functions.

As I have indicated, I do not support those amendments. In relation to the key point, the safeguards in the Bill at the moment, as the noble Lord indicated, consist of three doctors, including the preliminary doctor, the panel, the periods of reflection and the doctor who gives the assistance at the end having to be satisfied that all the requirements are still in place and operative. That structure is the one we support, and we stick by it, because we think it provides a safeguard. We are not in favour of changing that.

Separately, in relation to the assisted dying help service, I am strongly in favour of the basic principle outlined by Stephen Kinnock, when he gave evidence to the Lords Committee, and of the points made by the noble Lord, Lord Markham, and my noble friend Lady Blake. The Bill gives the Secretary of State the power to determine how it should be delivered. I accept that Clause 41, which was criticised by the deregulation committee in this House for being too vague, needs more detail. I said that I would come forward with more detail, so let me indicate what sort of detail, because people have indicated that they want that. I particularly isolate the noble Lord, Lord Goodman, whose speech was effective in that respect.

It will name as the possible commissioners ICBs, the National Health Service England—which I appreciate is itself in a terminal condition and will shortly be abolished, but it has to be kept there—or the Secretary of State. Picking up the regulation point, it will specify that the services will have to be regulated by either NHSE or the CQC. It will specifically impose duties that currently reside with the NHS commissioners on the people who can make the commission. It will indicate the principles that the Secretary of State has to provide in doing the commissioning and it will limit the Henry VIII power in Clause 41(6), which is currently very wide and, as the deregulation committee said, needs to be limited. We will make considerable progress on that. I apologise for that not being available at the moment, but there are a number of amendments to be dealt with. I hope that is helpful. That deals with the essence of the points that have been made.

The points made by the noble Lord, Lord Harper, and the noble Baroness, Lady Coffey, were in effect about the problems with the amendment from the noble Lord, Lord Birt. Because I do not support that amendment, it would be otiose and time wasting for me to go through them.

I will deal with two other points: how much it is going to cost and where it is going to come from. There is an impact assessment that, as the noble Lord, Lord Markham, said, suggests that in year 10 the annual cost will be something under £30 million. It is ridiculous to suggest where that money is going to come from in 10 years. The noble Lord, Lord Deben, says that we need to know where the money is going to come from and how much it is going to cost.

The noble Baroness, Lady Grey-Thompson, says that maybe the money will come from somewhere else. The noble Baroness criticises the impact assessment because she says it is based on Oregon, not on greater experience. If the Government take the view that they cannot rely on the impact assessment for the points that she makes—it is not a promoter view; it is a government view—then no doubt the Government will have to make a decision about whether they need a new impact assessment. For my part, the impact assessment looks careful and rigorous. When we make the decision about assisted dying, we know how much it will cost on the basis of the impact assessment. We have to make a decision as a Parliament as to whether, in the light of that cost, we think it should go ahead. It is true to say that it is a very small part—a tiny part—of the total budget for the NHS.

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[Lord Stevens of Birmingham (CB)]

On that very point, the noble and learned Lord’s Bill, at Clause 41(4), does indeed propose that an interpretation will be imposed on Section 1(1) of the 2006 Act, suggesting that he thinks there is some ambiguity on that point. As to the question about withdrawing care from an MND patient, surely the distinction between an act and an omission—the ability for somebody to choose to decline treatment—is a well-understood principle that has no bearing on the question of an assisted death.

[Lord Falconer of Thoroton (Lab)]

They are fundamentally different, but the idea that removing the respiratory equipment does not involve some acts is not realistic. But I completely accept the proposition that they are different. On the legal point, there is some ambiguity about what the section means and whether it needs to be changed, but I am making it absolutely clear that, from my point of view and that of the promoters of the Bill, it is most certainly not outside the broader founding principles of the NHS.

[Lord Deben (Con)]

I accept that very much from the noble and learned Lord. The question I asked, because I think it important, is for the Government to say what the legal situation is, which they have a duty to tell us before we can make the decision. I entirely accept what the noble and learned Lord said about his own position, but this is a question for the Government, if they are independent of this. They have a duty to provide information to the House before we can make these decisions.

[Lord Falconer of Thoroton (Lab)]

The broader question of whether this contributes to healthcare is for each of us to make our own judgment about. If noble Lords take the view—I am talking not about the legal issue but the broader issue—that this is wrong and contrary to the basic founding principles of the NHS, they can vote against the Bill. But if Parliament passes the Bill and says, “We are happy that that is the position”, it is saying that it is an acceptable part of healthcare.

[Lord Deben (Con)]

The noble and learned Lord really must accept that there is a problem with this being a Private Member’s Bill. He can say what he likes about the Bill, and I acknowledge and accept his absolute honesty about it, but the Government have the role of informing the House. Indeed, they do it: every time we have a debate, the Minister gets up and says that this or that would be difficult or awkward, or would be contrary to the European Court of Human Rights. I am only asking that they do that job on this. Is what is being proposed contrary to the founding position? Would the law have to be changed? It is up to the Government to tell us. We can then decide whether that matters.

[Lord Falconer of Thoroton (Lab)]

It is for Parliament to decide whether it is willing to pass the Bill. If Parliament is willing to pass the Bill, there may be the need for the legal change that the noble Lord, Lord Stevens, referred to. Whether or not you are willing to make the change is, for the reason I have said, a matter of what you think is the principle. Those are the only remarks that I need to make in relation to that, and I invite the noble Lord to withdraw his amendment.

[Baroness Berridge (Con)]

There will later be a group of amendments that relate to freedom of conscience. The noble and learned Lord has outlined another group of people in response to solving the issue from the Delegated Powers Committee around commissioners and NHS England. At this stage, in an effort to use our time efficiently, will he think about how wide the conscience clause will need to be to include people who have objections to this—it is not just clinicians; it may be those who do not want to be involved in commissioning these services—so that we do not end up with a huge group later in Committee?

[Lord Falconer of Thoroton (Lab)]

I will certainly think about it. I am not quite sure what the noble Baroness is asking, but whatever it is, I will try to co-operate as much as possible.

[Lord Gove (Con)]

The noble and learned Lord made it clear that he felt that there needed to be further clarity in the Bill following the point made by my noble friend Lord Goodman about who would eventually provide the service. Is it the case that he believes that the Bill, as written currently, would allow the Government to create an assisted dying help service by means of statutory instrument?

[Lord Falconer of Thoroton (Lab)]

I expect that it would not, but I cannot give a definitive view in relation to that. The reason I responded to the noble Lord, Lord Goodman, in the way that I did is because I have already committed myself, in the light of the Delegated Powers Committee’s report, to limit the scope of Clause 41.

[Lord Gove (Con)]

I am very grateful. I note that the noble and learned Lord says he suspects that it would not. It might be of assistance, certainly to me if to no one else, if he, and indeed the Minister, could let me know, with greater clarity, whether or not my concerns can be addressed with a greater degree of certainty.

[Lord Falconer of Thoroton (Lab)]

I will certainly try to provide that co-operation.

[Lord Birt (CB)]

My Lords, I will try not to keep us too long from our lunch. This has been a lively and helpful debate, and I think it has exposed a fair number of critical issues that are yet to be resolved.

My past has caught up with me in this debate. How many people here knew that I used to be the boss of the noble Lord, Lord Gove? It was not my fault. He was a genuinely distinguished young BBC journalist, in all seriousness, and hugely admired by his colleagues. The debate has also revealed that the noble Baroness, Lady Coffey, and I went to the same north Liverpool grammar school, so anybody who objects to anything that she or I put forward can blame the Irish Christian Brothers.

I cannot possibly deal in any detail—and noble Lords would not want me to—with the many points raised over the past three hours. I approached the construction of these amendments, with the noble Lord, Lord Pannick, with a truly open mind, and I retain an open mind. The Chief Whip often tells us that his door is always open. My door is always open—not that there is one, because I do not have a proper office—and I am completely open to discussing any issue that has been raised. I am sure that the noble Lord, Lord Pannick, and I will wish to return to these matters when we come to Report.

I will just say a few things now. I approached the Australian practitioners with a completely open mind. I was in favour of assisted dying but I wanted to understand what real-life experience was like. I am very data-driven, as the noble Lord, Lord Markham, has often pointed out, and wanted to immerse myself in the Australian data. It was my learning, and then discussions with the noble Lord, Lord Pannick, that caused us to frame our amendments in the way we did.

The central thing that emerged from those discussions, which has been lost in our debate so far, is that, actually, people are not coming forward. They already have palliative care. Their pain is more or less controlled. The central point that the Australian practitioners wanted to get across to me, over and again, was that this is about misery, and people running out of time and wanting to end their life. Hence the key Australian data I shared was that, roughly speaking, 25% of people who come forward for assisted death die within nine days.

That is why I told the Committee about the Nicholas Dimbleby experience, because I thought that was indicative of the kind of people who want it. It is at the end of a very painful, prolonged process of suffering that people want an expeditious end. That is why the noble Lord, Lord Pannick, and I have sought to retain the process that is in the Bill but tried to make it more flexible, to deal with what can be genuine emergencies. And it is an emergency. There is a part of the National Health Service that deals with emergencies on Christmas Day—it is called A&E. We are talking about a service that will deal with genuine emergencies.

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[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.

--- Later in debate ---

[Lord Empey (UUP)]

My Lords, there are some amendments in a later group—the 50th group—on this subject of approved substances and their regulation.

As the noble Baroness, Lady Hollins, pointed out, if you buy a packet of aspirin, you get a sheet that gives you the different risk levels. What I would like to know from the Government is: what will be done to ascertain how this list of approved substances is compiled? We know from examples given earlier today that, sometimes, things go wrong. When you go through any medical procedure, you are always asked to sign a piece of paper asking whether you consent: quite often, you are practically on the slab when you are asked to sign it.

The point I am getting at is: have we done any homework on what these substances should be? Have we analysed internationally how they have interacted in circumstances where assisted suicide is being promoted or is available? Do we have any of that information? We know, as has been mentioned, of circumstances in which executions have been carried out in certain American states, and even there, where multiple substances have been used with one purpose, sometimes it does not work out. We know that that is the case, and I cannot think of anything worse if we go down this track.

Although the promoter of the Bill has made his position clear, this is a matter for the Government as well. The Government have to tell us whether they have done any meaningful research. What is the legal framework? How will these substances be handled, bearing in mind that they will be going all over the country? They will not be going just to a single place. Pharmacies throughout the hospital system are very pressurised environments. Staff will have to be retrained. Given the nature of these substances, special procedures will have to be employed in practically every pharmacy in the United Kingdom where they will be required; I should say that, by “pharmacy”, I mean a hospital pharmacy.

I fear that this is another example of something that is half-baked; it is not worked out, researched or available. We have blank spaces around these lethal substances, and we are asking: what are they? All the questions—

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting. In group 50, we will deal with the process of the selection, approval and regulation of substances. In this group, we are dealing with making sure that the patient is properly informed before they make the decision. Many of the questions that the noble Lord raises about how we are going to choose the substances are perfectly valid, but I suggest that we deal with them under group 50.

[Lord Empey (UUP)]

As I said when I opened my remarks, I have amendments in group 50 for that purpose, but there is an inextricable link between having knowledge about these substances and having informed consent, so we cannot compartmentalise it as easily as that. The people who are overseeing the consent of the person must also have that knowledge. The risk factors have to be made available to the patient: that is my point. Because there has not been sufficient research done on these matters, I am not convinced at this stage that the information being provided to the patient is accurate. How can it be if the research has not been done?

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[Lord Katz (Lab)]

To repeat—and I hope this helps—the Government do not see any major workability concerns. Our concern is specifically with the drafting, in that it uses different language from language that already exists in the Bill. We feel there is a risk of duplicating existing requirements in Clause 12 for the assessing doctor to explain and discuss with the person what approved substance would be provided and how it would bring about death. There could be the risk of that duplication, but there are no major workability issues.

[Lord Falconer of Thoroton (Lab)]

My Lords, I thank everybody who has taken part in this interesting and important debate. The amendments fall into four categories, all of which overlap. The first category is the amendments from the noble Lord, Lord Blencathra, which say that the patient has to have demonstrably understood the information about diagnosis, prognosis, treatment and the drugs that will be prescribed. The noble Baroness, Lady Coffey, says that “demonstrably” should be put before “informed”. She also seeks to insert into the Bill what is regarded as the Montgomery v Lancashire test from the Supreme Court—that is the third one. The fourth is that a number of noble Baronesses and noble Lords have indicated that they want to be absolutely clear that the patient is properly informed of the effect of the drugs, any side-effects, any complications and what is going to happen.

I have thought very carefully, listening to the debate, whether one needs to make any changes to the Bill in order properly to reflect that the patient has to be properly informed before they make their decision. There is absolutely no doubt on anybody’s part in the course of this debate that, before any decision is made, the person has to be properly informed, and that means they have to be properly informed on prognosis, diagnosis, palliative care options and what the effect will be of the drug being administered, including side-effects, complications and what may happen in relation to complications.

As far as the Bill is concerned at the moment, Clause 1(2) says that steps need

“to be taken to establish that the person … has a clear, settled and informed wish to end their own life”.

“Informed” there plainly has a meaning well acquainted to the law: that they know enough material to be able to take the decision. Enough material to take the decision in relation to prognosis and diagnosis would need to involve knowing what the level of certainty of the diagnosis is, what possible steps could be taken to alleviate the position and the various risks in relation to that, the effect of the drugs on me physiologically—the lethal drugs, if I choose to have an assisted death—what the risk of complications is and what would happen if I got complications. Without that material, it would not be “informed”. That reference to “clear, settled and informed” is then repeated four times, significantly, throughout the Bill.

First of all, in Clause 10(2), the first doctor has to be satisfied that the person has a clear, settled and informed wish to end their life. Secondly, the second doctor has to be satisfied that the patient has a clear, settled and informed wish. Thirdly, the panel has to be satisfied that the person has a clear, settled and informed wish. Fourthly, at the point that the assistance is given, the provider of the assistance, the co-ordinating doctor, must be satisfied at the time the approved substance is provided that the person has a clear, settled and informed wish to end their own life.

--- Later in debate ---

[Baroness Berridge (Con)]

I made precisely this point, not about the information that is provided but about how people are getting their information, and about misinformation. We are beginning to hear of cases of ChatGPT potentially suggesting that a young person take their own life. Informed consent as the noble and learned Lord described is very much in the classical sense, as I learned. The point I made is about dealing with misinformation and malinformation. What is the duty now? I invite the noble and learned Lord to write to me, but I think—I hope—it is a developing area of law.

[Lord Falconer of Thoroton (Lab)]

I apologise; I should have answered that request. I do not want to write; I want to tell the noble Baroness the answer now. The Bill, in the places that I have indicated, says that the panel, the two doctors and the assisting doctor must be satisfied that the consent is informed. If the position is that the person who wants the assistance, or is about to get the assistance, is misinformed in the way that the noble Baroness described, that would not be informed consent. For example, having been subject to digital information that is completely wrong or misleading in what it says would not be informed consent. As time goes on, no doubt doctors and others who have to satisfy themselves that the consent is informed will have to take steps to ensure that the patient’s understanding is right.

This goes to what the noble Baroness, Lady Finlay, said. Sometimes, people do not take in what you are saying. Some people take in the wrong thing. Other people are, in the back of their mind—you cannot know this—thinking of something that is completely wrong. It is for the doctor or the panel in every case to satisfy themselves. It is explicit in the Bill that consent must be informed.

[Lord Deben (Con)]

To clarify one issue, the noble Lord, Lord Wolfson, suggested that the Government should answer the question about whether they believe that these circumstances are covered. The government spokesman kindly passed it back to the noble and learned Lord, the proposer of the Bill. Could he please explain why it would not be sensible to put in the Bill precisely what would normally be expected of the doctor? This is merely because we would be much happier if that were there, and it would take it away from the problem the Minister does not want to touch himself, in case in some way he gets infected by not being independent. Why can he not just accept that, if what he says is true, putting it in the Bill does not alter it but makes people much more secure?

[Lord Falconer of Thoroton (Lab)]

I listened very carefully to that. I indicated previously, in relation to powers of attorney, for example, that it would be worth putting it in. First, I am not sure what “it” is. Secondly, “it” is there: the key is the words “informed consent”, which nobody has any difficulty in understanding. It may have a particular implication in a particular case, and you have to give people flexibility in relation to what they say, because it will depend on the circumstances. If I knew what “it” was, I would put it in, but it is just not that simple.

[Lord Mawson (CB)]

My Lords, I said to the noble and learned Lord earlier that in some ways, this feels—from where I have spent a lot of my life, in the East End of London—like quite a white, middle-class conversation. Where I spend my life, one is dealing with every nationality on earth, often with lots of people whose grasp of English, in communication and really understanding what they are saying to each other, is quite complicated. I am just trying—because I am a practical person—to understand how this will work in practice. How will one ensure that, with the panel and the doctors, you will have in that process the people with the language and other capabilities and skills to really know what informed consent is? How much will it cost to ensure that all those elements are in this process?

[Lord Falconer of Thoroton (Lab)]

The noble Lord makes a good point: how do you, in dealing with a wide range of cultures, establish that it is the informed wish of the individual that they want an assisted death? You cannot prescribe in a Bill how you would do it in every case, but there is absolutely no doubt, as far as the Bill is concerned, that the establishment of that informed wish is the basic foundation before you get there. Therefore, in each case, if it involves a different culture or a different language, that must be gone through before you can be satisfied.

[Lord Carlile of Berriew (CB)]

My Lords—

[Lord Carter of Haslemere (CB)]

I am very grateful to the noble and learned Lord for his explanation of informed consent. There is a little doubt as to whether giving people lots of information, leading to an informed wish, actually encapsulates them fully understanding it. I was wondering: is the answer to this not to put in a definition of informed consent? Would that not be sensible? Then it is there in black and white. I have it here—AI is very helpful sometimes, is it not? “Informed consent is a process where a person voluntarily agrees to medical treatment, research, or a procedure after receiving and understanding all relevant information, including risks, benefits, alternatives and consequences, and they have a capacity to decide and are free from pressure”. There is a beautiful little definition that you could put straight into the definition section, and everyone would be happy.

[Lord Falconer of Thoroton (Lab)]

I thought carefully about that. The language concerns whether it is the person’s clear, settled and informed wish. Interestingly, the law—the Supreme Court—over a period of years constantly changes what in individual cases informed consent, or informed wish, as it is in the Bill, might be. The essence of the word “informed” is that you have enough material to make the decision. I hear what the noble Lord, Lord Carter, says, and I see what AI says about it, but I think it is better just to say, “informed wish”.

[Lord Carlile of Berriew (CB)]

I apologise to the noble Lord, Lord Carter; I did not see him behind me. The noble and learned Lord, Lord Falconer, has been using the phrase “informed consent”—

[Lord Falconer of Thoroton (Lab)]

“Informed wish” is in the language of the Bill.

[Lord Carlile of Berriew (CB)]

The noble and learned Lord has been using the phrases “informed consent” and “informed wish” as though they are definitely synonyms. I just wonder why we do not se “consent” with “informed” next to it in the Bill because, as the noble and learned Lord has let slip, informed consent is a well-understood concept. Putting it in the Bill would take away most of the doubts that some of us have expressed. What is the problem?

[Lord Falconer of Thoroton (Lab)]

The format of the Bill asks: “Is it your wish to receive assistance?” It has to be an informed wish. It seems to me that there is no need to add in another concept—that of informed consent —when we have “informed wish”, which is perfectly adequate.

[Baroness Finlay of Llandaff (CB)]

The noble and learned Lord has not responded to the question of what the doctor does if the patient develops the complication of not dying. The patient may begin to reawaken, but it is not clear at all what should happen if they say, “I want you to suffocate me. I want you to inject me with lethal drugs. I want you to force me to reingest”, or whatever. What is the doctor to do? The Bill requires the doctor to be present until either death occurs, the patient changes their mind or the procedure fails. So it would be helpful to make it clear that, in the event of a complication, the doctor is just to stand back and let things happen, because any intervention, such as clearing the patient’s airway when they are vomiting, would in fact be a resuscitative intervention.

[Lord Falconer of Thoroton (Lab)]

First, the noble Baroness is absolutely right when she says that, at that stage, no step can be taken by the doctor to kill the patient, as it were, because this is about the patient doing it. They will have to discuss it, and a whole variety of measures could be taken by a doctor in the face of complications. It is impossible for me to indicate in relation to every complication but, pursuant to Clause 12(2)(d), that is what must be discussed with the patient—subject to the important point, on which we both agree, that the doctor cannot kill.

[Lord Hacking (Lab)]

Next business.

[Baroness Lawlor (Con)]

What would happen if they were taken to court in a medical negligence case? Let us take the example given by the noble Lord, Lord Mawson, where they had not explained graphically to someone who may not speak or understand English what could happen if there were a complication, but a graphic explanation was needed; otherwise, they might have failed medically to do their job.

[Lord Falconer of Thoroton (Lab)]

If they failed medically to do their job, they might be liable to a civil suit, but it is impossible to answer that question without specific facts. This Bill is placing on doctors and panels the duty to make sure that the consent to assisted dying is properly informed. If a doctor fails in that respect, you might have a situation where, for example, the thing should not have been done in the first place or was done inadequately. That might give rise to a civil suit but it does not really go to the question of whether we need to put a heavier burden, in terms of giving information, in the Bill; with respect, I think that the burden in the Bill is sufficient.

[Lord Hacking (Lab)]

Next business.

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[Baroness Coffey (Con)]

May I see whether the noble and learned Lord can give me an answer on the idea of having the principles in the GMC guidance? They have come in only as a result of the Montgomery ruling in the court.

[Lord Falconer of Thoroton (Lab)]

On the first point—the reference to the immunity in respect of civil suit—I will check this but I think the immunity is with respect to criminal proceedings.

I was so distracted by the penetrating question from the noble Baroness, Lady Berridge, that I did not quite take in the question from the noble Baroness, Lady Coffey. If she would be willing to repeat it, I would be very grateful.

[Baroness Coffey (Con)]

I was cutting across, perhaps. I think the noble and learned Lord recognised my concern, in Amendment 188A, that I wanted stuff that is in case law now to be firmly included in the Bill, because, as I pointed out to the Committee in response to somebody else, the GMC guidance changed only as a consequence of that ruling. For me, that is really important to how we make sure that patients are at the heart of this.

[Lord Falconer of Thoroton (Lab)]

The guidance that was given changed in the light of the Montgomery case. I envisage that the GMC guidance would be of some significance and would change from time to time as people’s concepts change.

On the question from the noble Baroness, Lady Berridge, it is Clause 32 and it is about criminal liability.

[Baroness O’Loan (CB)]

I want to be really clear about this, because it is so fundamental and so important. The noble and learned Lord just described Clause 12(2)(c). Sub-paragraphs (i) to (iii) are not relevant to this discussion, but sub-paragraph (iv) and paragraph (d) are. They require three pieces of information in order to enable an informed wish:

“the nature of the substance … how it will bring about death and how it will be administered”,

and the person’s

“wishes in the event of complications”.

It does not require communication of what the complications might be. I simply ask him: why will he not put in the Bill a requirement to explain the complications?

[Lord Falconer of Thoroton (Lab)]

My answer to that—because the answer I gave in my long and tedious speech was obviously inadequate—was that to be properly informed, you would have to say what the effect of the drugs and what the complications would be. That comes from the word “informed”. If there could be any doubt about that, the fact that you have to discuss how, physiologically, it brings about the death and you need to discuss what happens in relation to the complications puts that beyond doubt.

I will just go back to the question from the noble Baroness, Lady Berridge. It is Clause 33, not Clause 32, which is the civil liability for providing assistance. That provides that if it is done in accordance with the Act then there is no civil liability, but it needs to be done in accordance with the Act, which means it has to be the informed wish.

[Lord Stevens of Birmingham (CB)]

Could I pursue that point and connect it with the question from the noble Baroness, Lady Finlay? It is very important that we clarify this for the benefit of the medical profession. Clause 33(2)(b), which covers civil liability, says that the civil liability exemptions are not available to a doctor

“in tort arising from a breach of a duty of care owed to a person”.

In the scenario described by the noble Baroness, Lady Finlay, what is the duty of care that the doctor owes the patient who has just not died?

[Lord Falconer of Thoroton (Lab)]

I am not sure whether the noble Lord is asking that in the context of giving information or of doing it negligently. The effect of Clause 33(2) is that nothing prevents the obligation on the doctor to act with reasonable care towards the patient. If, carelessly, the doctor failed to set out all the risks or maladministered the assistance, either the patient or the estate of the patient would have a claim against that doctor for negligence. There might be a dependency claim as well.

[Lord Wolfson of Tredegar (Con)]

I am sorry, but I think the noble and learned Lord has not quite picked up the noble Lord’s point. Of course, if the doctor does not explain it properly, or if the doctor maladministers the drug, there is liability in tort. As I understood the point being put, the doctor has explained it properly and the patient has administered the drug properly under supervision, but the patient has not died and is writhing around, for example. What is the doctor then meant to do, consistent with their duty of care to the patient? As I understand it, that is the question. I do not know the answer, but that, I think, at least is the question.

[Lord Falconer of Thoroton (Lab)]

In response to the question from the noble Baroness, Lady Finlay, regarding the complications, that has to be agreed in advance. I did not think that that was the question from the noble Lord, Lord Stevens.

[Lord Stevens of Birmingham (CB)]

That was indeed my question.

[Lord Falconer of Thoroton (Lab)]

The doctor has to take reasonable care at that point. They cannot do anything to kill the patient, so they have to provide reasonable treatment to save the patient’s life at that point.

[Baroness Finlay of Llandaff (CB)]

I seek a little more clarification. The noble and learned Lord just said that the doctor should act in a way to save the patient’s life. In that case, if the patient takes their lethal drugs and does not die, the doctor then stands back, lets them wake up, lets them vomit and tries to stop them fitting or clears the airway. But that has to be explicit in the Bill, so that there is no misunderstanding at all that there is any circumstance in which the doctor can then proceed to top up or further inject lethal drugs. In other countries, that is what happens if the patient has not died. Here we are talking about it being self-administered by the patient.

[Lord Falconer of Thoroton (Lab)]

I think that this is absolutely clear in the Bill. Self-administration is what is required. We are discussing how to deal with complications, including whether or not the patient wants some sort of non-intervention, which is perfectly possible. If it is not specifically agreed, and the patient is suffering in some way, the role of the doctor is to save their life, because the doctor cannot kill. I do not think that there is any doubt about that position in the Bill. I do not think that this is properly covered by the terms of this amendment—I will look at it again—and so I do not think that any further change is required.

[Lord Harper (Con)]

I again apologise for not being a lawyer. I listened to this very carefully. I think there is a big gap here. The noble and learned Lord talked about the doctor, in effect, giving treatment to save the patient’s life. If the patient has expressed a clear and informed wish to die—I think this is the question that the noble Lord, Lord Stevens, asked—does the doctor owe a duty of care then to save the patient’s life? I do not think that that is clear at all. Doctors, I think, are asking what it is they are supposed to do. If they do not do anything and the patient dies and then it is found that they should have done something, that is incredibly serious. Doctors are asking for it to be put beyond doubt what they should do in those circumstances.

[Lord Falconer of Thoroton (Lab)]

First of all, there is absolutely no need to apologise for not being a lawyer; some of my best friends are non-lawyers. Secondly, this very thing was very closely considered, hence the provision in the Bill to say that, if there are complications, let us try to agree in advance what we should do. We will not, I am sure, be able to cover every complication, hence the questions from the noble Baroness, Lady Finlay, and the noble Lord, Lord Stevens. The answer is clear and beyond doubt—hence the reference to the need to address the question of complications—that the doctor should do what the doctor is always obliged to do, which is to save life.

[Lord Moore of Etchingham (Non-Afl)]

Forgive me if I have misunderstood the noble and learned Lord, but what about the situation in which the patient does not die, is conscious and says, “I still want to die”? What is the doctor supposed to do at that point?

[Lord Falconer of Thoroton (Lab)]

The doctor cannot administer a substance. It has to be done by the patient, because the doctor has no right to kill. If the patient is saying, “No intervention”, then there will be no intervention at that particular point. The key thing about this is that it is assisting somebody to take their own life.

[Lord Moore of Etchingham (Non-Afl)]

The patient could say, if capable of action after having woken up from taking the poison, “I want more poison, give me some”. If that happened, what would the doctor’s duty be?

[Lord Falconer of Thoroton (Lab)]

If the person said, “I will take more poison”, then the person can do that. It is perfectly permissible.

[Baroness O'Loan (CB)]

Can I ask a question before the noble Lord sits down—eventually? There is a clause—I apologise, but I cannot remember which one it is—that says that if the patient cannot administer, push or whatever the substance, then the doctor can assist. If the patient comes around and is fitting, and has said that they want to die, is the doctor supposed to put their thumb on the switch or whatever it is and push it to make them take it themselves? It seems so uncertain what the obligation of the doctor is. For the people watching outside, this must be horrific. We are thinking about people coming round—we know there is a significant risk of them coming around—and we are not telling doctors in the Bill what they are required to do.

[Lord Falconer of Thoroton (Lab)]

Again, I do not think it needs to be on the face of the Bill, because the Bill is clear about the rights of the doctor in relation to that.

[Baroness Berridge (Con)]

Sadly, for the noble and learned Lord, I think that there are more amendments that need to be discussed, including one that I have laid. We have all discussed this on the basis that there is no one else in the room. There could be relatives there expressing a wish. We have discussed this on the basis that the patient rises and has capacity. They may not have capacity and there may be relatives in the room with enduring powers of attorney. The noble Baroness, Lady Hayter, shakes her head, but there are many scenarios in which there is not clarity in the Bill between the moment the drug is administered and the moment of death or it fails. I am afraid that I give the noble and learned Lord notice that I think we will have to come back to this, because the medical profession is asking for clarity.

[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.

--- Later in debate ---

[Lord Katz (Lab)]

I thank the noble Lord, Lord Blencathra, for tabling these amendments. I note his wish to keep this brief so that we can move on to a later group to discuss the issues that he raises in greater breadth.

Amendment 39C seeks to exclude anyone whose primary motivations for the request for an assisted death are financial concerns, lack of housing or lack of social support. This would require someone to establish the motivations of a person requesting an assisted death. It is not clear who would make this assessment or how they would make it. It is also unclear how a number of the phrases in the amendment are meant to be interpreted and assessed, including “financial concerns”, “lack of housing” or “lack of social support”, because these terms are not defined. The amendment also conflicts with later provisions of the Bill setting out how eligibility is assessed in more detail, which would cause confusion. If passed, considerable further policy and drafting work would need to be done to clarify the intent.

In the spirit of brevity, I make no comment on the other amendment in this group. However, as noble Lords will be aware, the amendment has not had technical drafting support from officials.

[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.

--- Later in debate ---

[Lord Katz (Lab)]

I thank noble Lords for their considered contributions on the motivation for assisted dying. Before I go into the meat of my comments, I join the noble Lord, Lord Kamall, in thanking the House clerks and staff for all their efforts and dedication in allowing us to sit for longer on a Friday to consider these weighty issues properly.

I also share the noble Lord’s comments about our wider motivations across the House, and about generally in politics wanting a better society. For what it is worth, I find myself in agreement with the noble Lord, Lord Deben, that, indeed, no man is an island. Whether that makes me a classical liberal or not, I am not sure—probably not.

These amendments seek to amend the eligibility criteria for assisted dying, to require that the person’s wish to end their own life is due to their terminal illness rather than to other reasons. I will keep any detailed comments limited to the amendments on which the Government have major legal, technical or operational workability concerns.

Amendments 320ZA and 332AA, tabled by the noble Lord, Lord Blencathra, seek to prevent people being eligible for an assisted death if they are motivated by non-medical factors such as loneliness, poverty or lack of services. There are various workability issues with these amendments, which I will briefly outline to aid noble Lords’ consideration. First, it could be challenging to establish whether someone is seeking an assisted death as a result of specified factors, given that a person’s motivations could be complex. Furthermore, a wide range of factors could be deemed as non-medical, given that the term is not defined and the list given is non-exhaustive. It is also unclear how the patient or doctor are meant to proceed if these factors are present.

I raise no major workability issues with the other amendments in this group, which are rightly a matter for your Lordships’ House to decide. However, I would like to set out their potential effects, which noble Lords may wish to consider. The amendments would require a person’s terminal illness to be a motivation for them seeking an assisted death, but, as drafted, they do not require it to be the only or primary motivation. It is arguable that every person seeking an assisted death under the Bill would be doing so in some way because of their terminal illness, so it may be that, in practice, the amendments would not impact on who is eligible.

The noble Lord, Lord Kamall, asked me some questions. I would push back on his first question around how the Government envisage a process or system for establishing motivation beyond condition: we genuinely think this is a policy decision, and that is one for my noble and learned friend Lord Falconer, the Bill’s sponsor, and those others who support the Bill. On his question about any work or research that NHS England has undertaken, I do not have that answer at my disposal, but I am very happy to take it back and write to him.

Finally, I would just like to mention that none of the amendments in this group has had technical drafting support from officials, so the way they are currently drafted means that they may not be fully workable, effective or enforceable.

[Lord Falconer of Thoroton (Lab)]

My Lords, I join with the noble Lord, Lord Kamall, and my noble friend Lord Katz in thanking the staff for staying for so long this evening. I also congratulate the Committee on what was a very high-quality debate at the very end. We did incredibly well to have such a high-quality debate in the last hour or two at 6 pm. Thirdly, this is not in any way to denigrate the debate; it has been threaded through the whole of these Committee stages. Indeed, we had a quite similar debate last week, which the noble Lord, Lord Harper, referred to.

I will make three specific points about the amendment. There is a group of amendments, but at the heart of the lead amendment is that you should be entitled to an assisted death only where your motivation is

“because of the terminal illness”.

My noble friend Lord Katz adverted to this, but it is almost impossible to see that that has any real meaning in the context of a person who is, in fact, terminally ill. If any of us became terminally ill, it is almost impossible to imagine that the terminal illness would not have an effect on any decision that we would take, in particular a decision on whether we wanted an assisted death. The noble Lord, Lord Moore, touched on this. I do not know that I would put it in exactly the same way, but, to “Why do you want an assisted death?” they might say, “Well, obviously, I am terminally ill, and I have other factors as well”. So I am not sure that the amendment has any real impact.

Secondly, there is an underlying issue. I ask the noble Lord to let me finish—then, by all means, he can come at me at the end.

Secondly, there is an underlying issue. The noble Baroness, Lady Cass, said that perhaps breathlessness and pain should be the only justification, because that is all that doctors could properly measure. Again, that indicates a significant disagreement between us about the principle of the Bill. I do not shy away from saying that the principle of the Bill is that, once you are diagnosed with a terminal illness, then, subject to the stringent safeguards being satisfied, you should have the option of deciding for yourself how you die. If you go down the route that my noble friend Lady Berger, in her amendment, wishes us to go down, this, in my respectful submission, would be an impossible task.

--- Later in debate ---

[Lord Goodman of Wycombe (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

If the noble Lord will let me finish, then he can come at me. The noble Lord, Lord Hamilton, refers to the question of wrong diagnoses. We will come to that in the group that starts with Amendment 71; I do not want to go into it now. However, we are dealing here with a terminal diagnosis, with two doctors and a panel who have approved it. Doctors are not perfect, of course, but this is very much a safeguarded measure.

I apologise for not taking the noble Lord’s intervention straight away.

[Lord Goodman of Wycombe (Con)]

Imagine I were a poor person who went before the panel and opted for an assisted death, but said, “Were I rich, I would not do this; I would take my chance on the diagnosis being wrong”. If the amendment moved by the noble Baroness, Lady Berger, was passed, I would surely be ineligible, so her amendment is meaningful. If the noble and learned Lord believes that one should be able to choose an assisted death if one is poor, that is one thing, but, as my noble friend Lord Deben argued, one should be protected from having to choose it because one is poor. That is the difference.

[Lord Falconer of Thoroton (Lab)]

The way the noble Lord has put the question to me means that, plainly, this would be because of the illness, would it not? I want an assisted death because the illness is going to kill me. That seems quite a bad example.

[Baroness Fox of Buckley (Non-Afl)]

I appreciate that the noble and learned Lord is saying that we have covered a lot of this ground before, but there is one reason that people keep coming back to similar threads. The noble and learned Lord has in many instances said, “I’m listening to you. I’ll think about that”, and nothing happens. It is not reassuring and there are different ways of approaching this. I thought I had made some inroads. The noble and learned Lord was quite positive about the question of motivation being relevant.

A patient arrives at the doctors and says, “I’ve got a terminal illness”. The doctor says, “Why do you want an assisted death?” The patient says, “I’m costing my kids a fortune—their inheritance. The care home costs tens of thousands of pounds. I’m a burden”. The noble and learned Lord just suggested to the noble Lord, Lord Deben, that you would say, “That’s your choice”. As in an earlier discussion in relation to the NHS, we are talking about NHS doctors, whom you would think would say, “Let me have a chat with you about that” and challenge them. They cannot just say, “If that’s what you want, carry on”.

All those examples I gave—I will not go over the millions of better ones used in the past—show that this undermines autonomy and suggests that the state is indifferent to somebody, in effect, asking for help in a different way but the form it takes is, “I might as well have an assisted death”. If you listen to them, they might be asking for something else that the state can intervene and help them with, whereas we just go, “Assisted death? We can provide that. Any of that other stuff you want, like financial help or help with loneliness and all that—we can’t afford that. That’s not happening, but assisted dying? You’re on your way”. That is why we are worried, and it is why these amendments are worth taking seriously. The noble and learned Lord needs to come back with written amendments that will reassure some of us so that we do not keep repeating ourselves.

[Lord Falconer of Thoroton (Lab)]

That was not really an intervention; it was just a statement. I should have said to the noble Baroness, Lady Fox, that, as I said last week, I will make an amendment so that the question of why will be asked, but I do not depart from the proposition that autonomy should be the leading reason for it. We disagree about that, and the House can reject that view on Report, but I am explaining what my position is.

[Lord Harper (Con)]

I want to pick the noble and learned Lord up on the progress that I thought we had made last week, which he has just confirmed a bit, when he accepted that asking the question was valid. The problem is, if the result of asking that question is that nothing changes, it is just cosmetic window dressing. He may not have intended to, but he illustrated beautifully the point of asking the question. If we talk to somebody and it is clear that the reason they do not wish to go on is that they are lonely and they have no one there, we can do something about that. There are organisations and people who would provide that companionship. I see the noble Baroness, Lady Hayter, shaking her head. There are organisations and people who would do something about that.

It comes down to the point I made last week. We are saying that, if your life is terrible and you get a terminal illness diagnosis, under the Bill, you are more likely to want to end your life with assistance than someone whose life is great. That is a terrible thing for us to do. The noble and learned Lord does not agree with me; that is fine. The House will have to make a decision, and I think that the position that we have set out with these amendments would lead to a better Bill and a better society than the one he is setting out. We will keep making that point and attempting to move him to that position.

[Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)]

My Lords, we are meant to be having brief questions here; these are not brief questions.

[Lord Falconer of Thoroton (Lab)]

That was the very thought going through my mind as I listened to the noble Lord, Lord Harper, and the noble Baroness, Lady Fox. They just made the same speeches again. On the point that he is making, the question of why is worth asking for two reasons: first, it might go to the question of coercion; and, secondly, it might throw up something that can be remedied, but, in the example I gave about loneliness, it may well be that meeting an organisation in those circumstances is simply not enough and does not change the person’s view. That is why I say that autonomy, rather than parsing the reasons, is the right course. In those circumstances, I invite the noble Baroness to withdraw her amendment.

[Baroness Cass (CB)]

May I just correct something? The noble and learned Lord said that I wanted it to be only things that doctors can measure. It is not so much about things that doctors can measure. I was saying that it is about whether it is plausible—a doctor should have good judgment of this—that the distress the person is experiencing is in any way related to the illness with which they have been diagnosed. There is a subtle but significant difference because that is what helps you distinguish between it being that or coercion.

[Lord Falconer of Thoroton (Lab)]

I will think about what the noble Baroness said. Perhaps it is my fault for not getting it. I will not write, but I will talk to her and listen to what she says.

[Baroness Finlay of Llandaff (CB)]

I have a short question, if I may. If I heard it right, the noble and learned Lord said that he would bring forward an amendment to put asking the question of why in the Bill. Whereabouts in the Bill does he intend to put it, and when will we see it?

[Lord Falconer of Thoroton (Lab)]

I do not want to commit myself to where it will be. It will come somewhere, but I assume the best place for it, subject to advice, would be either with the co-ordinating doctor or the independent doctor, or the panel or all three, having to ask why.

[Baroness Berger (Lab)]

My Lords, I also extend my thanks to the staff of the House for all their diligence in looking after us, particularly at this late hour. I thank all those who have participated in this important debate which, as I said at the start, goes to the heart of what this Bill sets out to do. While I am mindful of the time, I want to acknowledge the fact that there are a number of colleagues who wanted to participate in this debate but were prevented from doing so because of where they live across the UK. I myself would not be here right now if it was not for the fact that I am leading on this group of amendments. I would be with my family, acknowledging the Jewish Sabbath, as I do on a customary basis every single week.

I think it is worth rapidly reflecting on the contributions which build the case for these amendments. We heard from the noble Lord, Lord Shinkwin, about his lived experience of being told that he was going to die, and he is obviously still with us—we are delighted he is still with us—decades later. The noble Lord, Lord Hamilton of Epsom, talked about the challenges of a six-month terminal prognosis and errors in diagnosis. That point was echoed by others during our debate. The noble Lord, Lord Blencathra, talked about the challenges of non-medical motivations dominating the reasons for choosing an assisted death in some other jurisdictions, which really is the prompt for the amendments that we have discussed this afternoon. The noble Lord, Lord Carlile, said that the capability to have an assisted death alone should be due to the terminal illness itself. It was illuminating to hear from the noble Lord, Lord Deben, about his socialist ideals. However, the context in which we consider this Bill is that we are not just individuals; we exist within a society.

I am very grateful to the noble Baroness, Lady Cass, who corroborated how these amendments in a medical context ensure that the motivations for an assisted death are concrete, clear and defensible. I listened closely to the challenge from the noble Lord, Lord Moore of Etchingham—I do not think he is in his place. He asked how these amendments will make a difference, and this was a point echoed by my noble and learned friend. These amendments cement the principle of this Bill. It makes very clear to the public that it is your terminal illness that has to be the reason why you are pursuing an assisted death. Currently, the requirement is that doctors have to assess the patient and, instead of just establishing a clear, settled and informed wish to die, they must, via these amendments, establish that the terminal illness is the reason. That is not to say that there is no risk of someone being misled—that is the inherent risk to this entire Bill, in particular because of the lack of training that will be available to doctors as set out currently in the impact assessment.

The points made by the noble Lord, Lord Harper, showed us how these amendments connect to meeting the public’s expectations of this Bill. The noble Baroness, Lady Finlay, made it clear that the motivation to have an assisted death should be because of terminal illness and we should set that out in the Bill. This is yet another issue that is not clear and we need those clear boundaries. I am grateful to the noble Baroness, Lady Grey-Thompson, for setting out some real-life case studies and examples of why these amendments matter.

I believe that this debate, and, indeed, how my noble and learned friend set out his conclusion just now, has confirmed that there is a real difference at play in how we understand what the Bill sets out to do. For some—I hope I am not mischaracterising, but this was certainly in the contributions of the noble Baroness, Lady Blackstone, and alluded to by the noble Lord, Lord Markham, and my noble friend Lady Royall—it is about autonomy: allowing those who are already dying to exercise choice over the timing and manner of that death. For others, like me, it is primarily about compassion in seeking to prevent or minimise the suffering associated with their illness. These are related positions but they are distinct. My amendments have sought to establish which is the position of the Committee.

For myself and, in particular, those with a strong interest in mental health and suicide prevention, it is the latter that offers the stronger consideration for introducing a system that I am concerned is fraught with obvious risk to the vulnerable and those at risk of pressure. That means that we must do more than simply establish that a person is terminally ill and that they genuinely wish to end their lives; we must have a means of establishing the link between those two questions so that we do not open the door to having the state, which should protect vulnerable people, instead becoming complicit in their premature deaths.

None of these amendments, I believe, prevents there being additional motivations for seeking an assisted death. I intend to revisit this fundamental issue at the next stage and, indeed, through my engagement with this enormously consequential legislation. I will certainly consider the Government’s assessment of the wording as set out by the Minister, and I hope that the sponsor will also consider the profound concerns that have been raised during the course of the debate when we return on Report. For now, I beg leave to withdraw my amendment.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 30th January 2026 Lords Chamber

[Baroness Grey-Thompson (CB)]

I realise that your Lordships wish to get on to the substance of the Bill, and the points I am about to raise are specifically on the Bill and will have an impact on the groupings we are about to debate. I notified the Chief Whip, the clerks and the noble and learned Lord, Lord Falconer, of my intention to raise them.

The noble and learned Lord, Lord Falconer, explained in his letter this week that he recognises the concerns raised about independent advocates and that following discussions with the sponsor in the other place and their amendments, he has tabled changes. I am raising this now because of the sense of frustration that we are not getting answers to the amendments we are tabling in good faith. I hope that the noble and learned Lord will be able to answer these questions, so that we can move with a bit more pace.

I would like to probe how the changes the noble and learned Lord has suggested relate to what was agreed in the other place. The amendments in the Commons were understood to introduce independent advocates as a mandatory safeguard. This is an area that many of us are concerned about, reflecting the fact that the individuals in scope may have substantial difficulty understanding the process or communicating their wishes. Under the noble and learned Lord’s amendments, a person is treated as having an independent advocate, even if the advocate is not present or involved in the decision-making process. The amendments do not require an advocate to be present when the co-ordinating or independent doctor meets with the patient, nor when the panel considers the case. Advocacy is therefore satisfied by instruction alone rather than active participation. In addition, advocacy is made conditional on request. The preliminary discussion may proceed without an advocate, and a qualifying person may refuse one.

Could the noble and learned Lord please explain whether he considers that this framework preserves the substance of the Commons concession, or whether he accepts that it represents a shift away from a mandatory safeguard towards a more discretionary model? In particular, how does he address the concern that people who qualify precisely because they struggle to understand are required, unaided, to decide whether to waive one of the Bill’s central protections at the very outset of the process?

[Lord Falconer of Thoroton (Lab)]

These questions relate to a detailed amendment to Clause 22 that I tabled yesterday, which provides for an independent advocate to help people who need assistance. I will read the questions the noble Baroness has given me—she did not give me notice of them, and I make no complaint about that at all—but the appropriate place to deal with them is when we get to the amendments relating to Clause 22.

Clause 1: Assisted dying

Amendment 60

Moved by

--- Later in debate ---

[Baroness Merron (Lab)]

I understand the point, but it is about verifying that.

[Lord Falconer of Thoroton (Lab)]

My Lords, I express my gratitude to everyone who has taken part in the debate. I make special mention of the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Polak, who spoke about the death of their father and mother. Like everyone else, I am grateful for what may have been something that was quite difficult to contribute to the debate. I hope I have not left out anyone else out who has done that.

These amendments fall effectively into two categories. The first is the England and Wales category—what do you have to be in England and Wales to do?—and, secondly, and separately, in what circumstances is a face-to-face meeting between either the patient and the doctors or the patient and the panel required?

I will deal first with the position of England and Wales, raised by Amendment 60, from the noble Baroness, Lady Coffey. Currently, under the provisions of the Bill, the first declaration made by the patient, the second declaration made by the patient, the first assessment of the patient, the second assessment of the patient and assistance being given to the patient all have to take place in England and Wales. There was a range of other things that the noble Baroness wished to take place while the patient was in England and Wales—for example, switching from one doctor to another, which is a process. For my part, I think the Bill has broadly got right when you have to be in England and Wales. Having listened carefully to what the noble Baroness has said, I am not minded to suggest an amendment in relation to that, and I note that it was not picked up as an issue by other people.

The face-to-face issues were much more what the Committee, if I may say so, was interested in through the course of this debate. The effect of the debate has been, in effect, to identify four possibilities. First, Amendment 65 wants each of the occasions, namely the two doctors and the panel, to always involve a face-to-face meeting. Secondly, there should be a face-to-face meeting unless there are—I use this phrase without intending to pick up all the amendments—exceptional circumstances or practicability issues. Thirdly, the third amendment from the noble Lord, Lord Blencathra, which he referred to, is that there should be, to use his language, a “statutory protocol” defining where there can be remote meetings, accepting that the norm is face to face. Fourthly, we could simply rely on the existing provisions of the Bill, which is that codes of practice can be issued by the Minister under the various provisions of the Bill saying when face to face is appropriate and when it is not.

The testimony—that is what it felt like—given of cases where remote has gone wrong have enormous power and I think we are all aware of circumstances where face to face will lead to much greater and better communication. The other side of the coin, which was referred to by the noble Baronesses, Lady Pidgeon and Lady Hayman, my noble friends Lady Jay and Lady Blackstone and the noble Earl, Lord Howe, is that there will be circumstances where, if you insist on face to face, you are, in effect, excluding some people from this right when they should have it. There are arguments on both sides.

I come away with the strongest possible feeling that the Committee thinks that face to face where possible is best but that there will be circumstances where it is not appropriate. That brings me to my third and fourth possibilities. It is wrong and dangerous to try to use a phrase such as “reasonably practicable” or “exceptional”; more is required and guidance should be given. This is not a criticism—it is a congratulation—but I do not think the words “statutory protocol” are right, but I get from what the noble Lord, Lord Blencathra, is saying that he wants something that has the force of regulations or something similar that says, “This is what we have in mind”. Whether that is a code of practice or a statutory protocol, I am not sure. I am sure it is not what is called a protocol, but it might be something quite like that. I think the right course for me is to go away and bring back something that satisfies the Committee that there will be something—a statutory protocol or a code of guidance—that indicates when face to face is appropriate or should be the norm, but gives the circumstances where it would not be, because I get the sense of anxiety about that. I hope, in the light of that approach, noble Lords will feel able to withdraw or not to press their amendments.

[Lord Harries of Pentregarth (CB)]

I cannot quite understand why the noble and learned Lord is so unwilling to have in the Bill that the presumption should be face to face, with exceptions written into a protocol? Why is he objecting to having it that way round?

[Lord Falconer of Thoroton (Lab)]

As a lawyer, going for a presumption is wrong. I think the right thing to do is say something such as the norm is face to face, but there could be circumstances in which you may not do that. You should give maximum flexibility.

[Lord Harper (Con)]

Can I just illustrate, perhaps, to the noble and learned Lord why people are so nervous? In the Commons, at Second Reading and for much of the Committee stage, MPs were told that the panel would have to speak to the patient. Amendments were tabled subsequently—the ones I talked about—which then allowed the panel to accept pre-recorded video and waive hearing from the applicant entirely in those undefined exceptional circumstances. I absolutely accept the argument against a blanket position, but if there was a rebuttable presumption that it should be face to face and some circumstances were set out, which could be developed with case law, from listening to the debate, it seems that that would command widespread support from the Committee and would deal both with people’s concerns and, rightly, the patient-centred approach that the three noble Baronesses set out for noble Lords.

[Lord Falconer of Thoroton (Lab)]

In relation to the noble Lord’s point about the imposition of subsection (6), the Bill currently says that the panel

“must (subject to subsection (6)) hear from, and may question, the person to whom the referral relates”,

so it has to question the person, though not necessarily in person. Subsection (6), which he referred to, says:

“The duty … to hear from the person … does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person”.


That was added during Committee, because a Member of the Committee described the circumstances of his own mother, I think. That is why it happened. But I will note what the noble Lord says. I do not think I will go for a presumption, but I hear what he says.

[Lord Harper (Con)]

The noble and learned Lord talked about questioning; this is important, because I think he slightly misspoke. Subsection (5) says:

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


The problem with that is that you lose any ability to ask questions, which is critical. That was added afterwards—after people had heard these concerns—and it went backwards. Will the noble and learned Lord reflect on that? If he is going to table an amendment, I ask him to make sure that it reflects the debate that he has heard this morning in your Lordships’ Committee.

[Lord Falconer of Thoroton (Lab)]

Obviously, you cannot ask questions under subsection (6), so it is exactly the same point. The point being made in subsections (5) and (6) is that the panel recognises that there are circumstances in which questioning is not possible. I do not know what additional point the noble Lord was making.

[Lord Blencathra (Con)]

I am grateful to the noble and learned Lord. I acknowledge that he has accepted that something else needs to be added to the Bill, possibly along the lines that I was suggesting. That comes on top of the dozen new clauses that he is already planning to add to the Bill, so I ask him to help me understand something. If the noble and learned Lord is therefore admitting that the Bill is fundamentally flawed, to a greater or lesser extent, and that it needs to be amended, how on earth can he reconcile that with what he said a couple of days ago? He said that he would seek to drive the Bill through, unamended from the House of Commons—the Bill that is so fundamentally flawed that he is now trying to move amendments to correct it. That said, I am grateful for his concession this morning.

[Lord Falconer of Thoroton (Lab)]

I would not look a gift horse in the mouth if I were the noble Lord. First, I do not regard accepting amendments in Committee of the House of Lords as indicating that a Bill is fundamentally flawed; I regard it as listening and making appropriate changes. Secondly, in relation to the question of the Parliament Act, the last thing I want is for this to happen through the Parliament Act. I want this House to do the job that it is supposed to do, which is do scrutiny and then send it back to the Commons.

In the debate on 8 January 2026, I gave in detail the reasons why I thought we were not going about it properly, and I thought that the House agreed with me when it said that we needed to move quicker. The problem is not that everybody does not have good ideas; the problem is that it is taking not just far too long but disproportionately long. My experience of the Lords is that we can do this, and we can do it much quicker than we are doing it and there still be quality. That was the point I made on 8 January and that I understood the House to have accepted.

[Baroness O'Loan (CB)]

My Lords, if I remember it correctly, the Motion that the noble and learned Lord put before the House on 8 January was a Motion that more time was required, not that the House needed to race through the Bill and proceed more quickly. The Motion did not say that we needed to move more quickly; it said that we needed more time. That is what the House agreed to.

[Lord Falconer of Thoroton (Lab)]

The Motion said that more time should be given so that we could complete the stages of the Bill so that it would have sufficient time to get back to the Commons. I was particularly impressed during that debate by what my friend, the noble and learned Baroness, Lady Butler-Sloss, said—that we have to “get through” this. We are not getting through it.

[Baroness O'Loan (CB)]

My Lords, the noble and learned Lord has made the point that I was making. We were saying—we agreed and did not vote against him—that more time was required. But the discussion earlier this morning was about the fact that the House must not rush this, because that we are talking about life and death, and in particular the life and death of very vulnerable and marginalised people who are living in poverty and all those things. These things require the kind of consideration which has occurred this morning, as reflected in the noble and learned Lord’s response.

[Baroness Grey-Thompson (CB)]

I understand the noble and learned Lord’s comments about “reasonably practicable” in relation to this group of amendments. But the Bill actually has “reasonably practicable” written many times—in Clauses 10, 11, 16, 18, 47 and 50—in relation to the length of time a doctor should take to write a written report. I have amendments to shorten that length of time. I am interested in why the noble and learned Lord does not think—I am sure he is going to say that we will discuss this when we get on to those groupings—that “reasonably practicable” is not suitable in this situation, but is suitable in situations such as the length of time it takes doctors to write a report?

[Lord Falconer of Thoroton (Lab)]

That is a very valid point in relation to this particular amendment. The reason I think some sort of regulatory process from the Secretary of State—a code of practice or something similar—is better is that you can give much more detail and many more examples. You should not be relying on just a particular two-word legal test.

[Baroness Coffey (Con)]

My Lords, this has been quite a revealing debate in many ways. In trying to go with the spirit of getting on with the Bill, I could have easily broken that group into just consideration about what should be physically in the country and what should be face to face. However, I thought bringing that debate together could have been, and has been, of benefit to your Lordships.

One thing that has come up, and the noble and learned Lord has recognised, is that the concept of face to face being largely default has been well received. There have been a few other issues, though. In her contribution, the noble Baroness, Lady Pidgeon, gave a series of examples where, I have been informed by barristers, it would be required for clinicians to conduct home visits.

I was particularly struck by several speeches: I am not going to repeat them all. The noble Baroness, Lady Keeley, spoke about something as straightforward as a will, and certainly the legal protections are there.

Going forward to Report, I am clear that I believe that a lot of the operation and activities of these panels should happen in this country, rather than the psychiatrist, the KC or whoever being abroad in Tenerife—never mind anybody else. I think it is not sufficient to rely simply on statutory guidance. I gave the example last week when we talked about Montgomery: the GMC only changed their guidance, as was referred to, five years after the legal ruling. It did not happen straight away. The other thing about statutory guidance is that it does not have to come to Parliament; it is simply what the Minister can put out. For me, there are deficiencies in that approach, although I understand the flexibility. The whole point is that—

[Lord Falconer of Thoroton (Lab)]

Whether it has to come to Parliament depends on the provisions, does it not?

[Baroness Coffey (Con)]

As it stands, there seems to be a variety around the Bill on whether or not there is that 40-day pre-laying. It just seems to vary. Standard legislation would not require it, unless Parliament or the Government inserted that specifically into the Bill.

Overall, there is still a lot to be discussed. I would like to seek a meeting with the Minister on the response that somehow Article 8 is engaged, linked to Article 14 and how Amendments 60 and 65 in particular are not operable in that regard. With that, I beg leave to withdraw Amendment 60.

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[Baroness Merron (Lab)]

My Lords, I thank noble Lords for their contributions on this debate on artificial intelligence. It follows the debate yesterday, as referred to by the noble Lord, Lord Deben. The purpose of Amendment 66, tabled by the noble Baroness, Lady Coffey, is to prohibit artificial intelligence from being used to carry out functions under any section of or schedule to the Bill. This amendment is likely to have major workability impacts that could render the Bill unworkable and/or undeliverable.

While this is a policy matter, I will pick up points and considerations that have been made on the use of AI in practice. Broadly, artificial intelligence is absolutely in use in a number of pathways. It was indeed referred to in the 10-year health plan, and the ways it is being used include imaging and diagnosis. As this amendment stands, it would preclude an improvement in speed and in quality of care for patients.

Following my comments on workability, the amendment would incur an administrative burden that is likely to increase over time. AI is increasingly used across the economy and public services, including in the NHS, as set out in the 10-year health plan. The effect of the amendment as drafted is very broad in prohibiting this use of AI from carrying out any functions under the Bill. In the future, when AI is integrated into NHS systems across the board, it may well be difficult or even impossible to quarantine systems that are used for functions under the Bill. Additionally, this may risk creating a parallel system where voluntary assisted dying services are left behind and are potentially less safe for patients.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble Baroness, Lady Coffey, for raising artificial intelligence. There was, broadly, a consensus around the Committee, which the noble Baroness supported, that the amendment is much too blunt, but as she said, fairly, it gives us an opportunity to talk about AI. I will also pick up the right reverend Prelate the Bishop of Hereford’s contribution; he rightly said, as has been echoed around the Committee, that there have been huge benefits for patients from AI.

I think four concerns were raised during the debate. The first was: will AI affect decision-making? I think the underlying point there is that we do not want machines to make the decisions that are referred to in the Bill; we want human beings to make them. In particular, the decisions I have in mind are the decision of the first doctor, the decision of the second doctor, the decision of the panel, and the decision of the doctor, at the point that the assistance is being given, that the conditions are still satisfied. Everybody around the Chamber wants that to be decided by a doctor or a panel, depending on which it is, and I completely and unreservedly endorse and accept that.

Does that need to be made even clearer in the Bill? I will consider it, but I do not think that it does. The acid test for me is that if you fail to comply with your obligations as a doctor or as a panel, you can go to prison for up to five years. It is very difficult to imagine how you could put a machine in prison, so it is pretty clear that these decisions must be made by a human being. For my part and for everybody who supports the Bill, that must remain the position.

The second concern is advertising, which the noble Baroness, Lady Berridge, referred to. She is absolutely right. I have made it clear that I will bring forward amendments. Those amendments, which are almost finally drafted, make provision specifically in relation to digital advertising—they do not specifically refer to AI, but we need to address that in the advertising provision. I will lay those amendments so that the House can consider them.

The third concern is slightly generalised, which is that AI is very persuasive, particularly in persuading people to do things that they do not necessarily want to do. The first thing on that is that there is a wider societal requirement to address the pervasive impacts of AI in a whole range of things. We should all try to contribute to that. More focused on this is the question of the safeguards in the Bill, because they then become incredibly important. In particular, the safeguards require that there is doctor-to-patient discussion in relation to the decision for that patient, and they are specifically required in the preliminary conversation, the first conversation and the second conversation. It is those safeguards that one must see as the antidote to the persuasive aspect of AI, but I completely accept what people said on that.

The fourth issue, which was touched on very briefly, was the operation of devices. That, I think, referred to the fact that quite a number of medical devices can be operated by, for example, the blink of an eye or something quite minor. Again, that needs to be properly safeguarded. Those may not necessarily be AI problems but problems with other sorts of developments in technology.

I thank the noble Baroness, Lady Coffey, for raising this. We need to consider all the points she made. At the moment, apart from the advertising amendment, which I will bring forward, I am not sure that it requires amendment to the Bill.

[Baroness Berridge (Con)]

Is there a guarantee that we will see those amendments in Committee rather than on Report? That is important, because there is a very different procedure in Committee, in which we can go back and forth and query amendments.

[Lord Falconer of Thoroton (Lab)]

I am going to do my best.

[Baroness Coffey (Con)]

My Lords, it has been an interesting debate. I was struck by the question from the noble Baroness, Lady Finlay of Llandaff, about fake voices. That is an interesting thing for us to consider.

Yes, my amendment was quite blunt, but we once had a briefing—sorry, it sounds like I am going to name drop—at the Cabinet table; we had a whole session on it, telling us that artificial intelligence had learned to lie. A classic example is “I am not a robot”: artificial intelligence will, in effect, just press the element that says, “I’ve got accessibility issues”, and if you do that, you do not have to do any more verification. There is a whole series here. The noble Lord, Lord McCrea, referred to an article. It is worth reading AI and Ethics Volume 5 from last year.

I wondered if the Minister might raise—I hoped that she would—the commission by the MHRA, which was started last year, specifically considering artificial intelligence. If she has not already, I think it would be worth while sending an instruction to the MHRA to start considering this aspect.

Ultimately, although I appreciate that there are noble Lords who do not want us to talk about the detail of how this might work, I think it is critical that we as parliamentarians set out for the future of any potential guidance, SIs or whatever legal rulings what we expect or how we expect this Act to deploy.

There is no doubt that algorithmic bias is a concern. That is why, although I do not entirely agree with the noble and learned Lord that we might not revisit an amendment on Report referring to AI, I thank noble Lords for this debate and beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Polak (Con)]

My Lords, I apologise to the Committee for intervening, but I have waited—we are now in our eighth week, I think. I have three amendments coming up in the next group but one. I have to be in synagogue at 4.30 pm so I will not be able to speak to them, sadly; I had short speeches on them but I thought that, as a courtesy, I should let the Committee know that I will not be here to make them.

[Lord Falconer of Thoroton (Lab)]

The noble Lord notified me of that beforehand; I thank him greatly for his courtesy.

May I briefly refer to the contents of the debate? First, the noble Baroness mentioned devolution. I have nothing to add in relation to devolution, but it felt like she was aiming more at the Government than at me. I am very supportive of the Government in this respect, but I had to say something in relation to that.

I will focus primarily on what my noble friend Lord Rooker said. I do not say this without thinking about it. I have the greatest respect for my noble friend, having been in government—though not as long as him, because I was sacked three years before he was sacked, and he was sacked only because the electorate replaced the Labour Government with a Conservative Government. He survived throughout the whole thing.

My noble friend is, in broad outline, right when he says that Clause 1 contains the spine—the trunk—of the Bill. I believe that this moment very much represents an opportunity for us as a House to see whether there is a way to get through this in time to send the Bill back. I completely accept what my noble friend said about my responsibility for bringing forward, as quickly and as well as possible, the areas where he was kind enough to say that I had been clear about my amendments. So I welcome the door that my noble friend has opened. I am more than willing, in relation to each of the areas where I have identified that I am willing to move, to sit down and try to agree, as much as possible, what those movements should be. I am absolutely sure that we will not agree on everything, but we can determine the things on which we do not agree on Report. So I welcome enthusiastically what my noble friend said about the way forward.

May I deal briefly with what the noble Baroness, Lady Falkner, said? Obviously, I am not responsible for either the impact assessment or the equality impact assessment. I must say, having read the points made by the commissioner of the EHRC, I think that the Government are right: it does not justify either a new impact assessment or a new equality assessment. The Government have been absolutely clear on why they think that, in principle, the Bill does not offend against the convention or the Human Rights Act. They have also been incredibly helpful, through Ministers, in saying where they think amendments might give rise to problems. It is perfectly legitimate for the Government to say, “We’re worried about amendments” but not to introduce a whole new assessment in relation to them.

[Baroness Falkner of Margravine (CB)]

Does the noble and learned Lord agree that, when courts in the United Kingdom rule that the public sector equality duty cannot be an afterthought—that it has to be complied with throughout and that Parliament needs to be aware of changes in circumstances or new issues that come up—it needs to be abided by? I am sorry; I cannot remember the title of the court case I referenced, but I am sure the noble and learned Lord will be able to find it in Hansard.

[Lord Falconer of Thoroton (Lab)]

I am well aware of the court case. It does not justify a new equality assessment in this case.

[Baroness Falkner of Margravine (CB)]

I was talking about the applicability of the public sector equality duty.

[Lord Falconer of Thoroton (Lab)]

I do not think that it justifies a new equality assessment. The thing about equality assessments is that lawyers can constantly write to clients and say, “You haven’t considered this and you haven’t considered that”. Having read in detail the equality assessment, I say that it deals properly and adequately with the issues.

[Baroness Butler-Sloss (CB)]

My Lords, I wonder whether it would be possible to get to the next group of amendments.

--- Later in debate ---

[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.

[Lord Falconer of Thoroton (Lab)]

My Lords, there are effectively two entirely separate issues raised by this group of amendments. The first is whether we should extend the current eligibility to people who have an inevitably progressive illness or disease to somebody who is terminally ill because they have injuries—for example, from a car accident—that might make them die within a specified period.

I was not sure whether the noble Lord, Lord Harper, was pressing that as an amendment, because the thrust of his remarks was much more focused on the effect on the Fatal Accidents Act. Whatever his position, I am afraid that I am not in favour of that amendment because the whole Bill has been put together and the argument for it has been based on people who are terminally ill. That is very different, for a whole variety of reasons mentioned by people, from somebody who is the victim of an injury.

I can see that people might say there was considerable moral equivalence, and the noble Lord, Lord Hendy, was right to say how persuasive he was when I spoke to him in relation to it. However, my clear view is that we should not extend the Bill beyond its current eligibility. I should also make absolutely clear that the wording of the Bill is clear; there is no prospect whatever that a court could construe the words “illness” or “disease” as meaning “injury”. What we send from Parliament will be the way it is read.

[Lord Sandhurst (Con)]

I am surprised by that because mesothelioma is an illness or disease caused by the injury—and that injury has been inflicted by the wrongdoing.

[Lord Falconer of Thoroton (Lab)]

I completely agree with that analysis, but it does not mean that if you have mesothelioma you are not suffering from a progressive illness or disease. That is different from somebody who is injured and has an injury that cannot be cured and was plainly caused by, for example, a car accident. I am grateful to the noble Lord, Lord Sandhurst, for making that point, because I was going to say that, when we are talking about, for example, an illness caused by smoking or a disease caused by industrial waste, that does not make it any the less an illness or disease. The Bill is not interested in how you got lung cancer or bowel cancer; it is interested only in whether you have an illness or disease.

The second point is of considerable importance—the question of the Fatal Accidents Act. I do not think that anybody in the Committee wants somebody who has, for example, mesothelioma to be deprived of any claim that they may have against somebody who has committed a tort in giving them mesothelioma. They should not lose that right as a result of taking an assisted death. My noble friend Lord Hendy made the important point that somebody who might want an assisted death should not be deterred from it because they worry that that might affect it. For me and for the Bill’s sponsor in the other place, the only question is: what is the best way to deal with that? One of the possible answers is to have a considered review that will report before the Act comes into force. There is a little difference between what I am saying now and what the noble Lord said. I have absolutely no desire to test this by a few court decisions early on. We have to resolve this before that happens.

That is why my Amendment 786A requires the Secretary of State to produce a report about the effects of the Fatal Accidents Act within “the first reporting period”—that means within 12 months of the Bill being passed—which is more than two years before it would come into effect. Plainly, the intention is that the report be given and then whatever necessary steps there are that have to be taken to deal with the position in tort can then be taken, if necessary, by primary legislation.

I think what the noble Baroness, Lady Finlay, meant in her speech was, “That is not good enough. You need to deal with the Fatal Accidents Act now, in the Bill.” There was no real sense one way or the other. Obviously, I will consider what she and others have said. If an amendment were tabled on Report saying that this had to be dealt with then and there—by which I mean a provision that said words to the effect of, “You do not lose your rights under the Fatal Accidents Act because you have an assisted death if you otherwise had them immediately before the assisted death”—it would be for the House to decide in relation to it.

The reason why I am advancing a review approach rather than nailing it down in the way proposed by the noble Baroness, Lady Finlay, is that it gives every single angle the opportunity to be looked at. But it would be for the House to decide which was the better way of dealing with it. There is no doubt that, one way or another, the point needs to be dealt with.

Three other points were raised. First, what about the statutory mesothelioma scheme, which makes provision for the payment of compensation? It is dealt with by regulations. We would need to look—actually I cannot look at them, but the Government would need to—at the regulations. I anticipate that there would be no real issue for the Government in making sure that an assisted death was not prejudicial to someone under that.

Secondly, on statutory compensation—I may have misunderstood the question but the noble Lord, Lord Harper, will help me with this if I have—statutory compensation for the military might have been what he had in mind, under the various statutory compensation schemes. Again, they are in the hands of the Government and we need to see what those statutory compensation schemes say.

The final point, made by the noble Baroness, Lady Finlay, was about insurance policies. As she will know, they depend entirely on the terms of the insurance policy and it is difficult to deal with the terms of an insurance policy in an Act of Parliament. However, I am grateful to everyone who contributed to this debate.

[Baroness Finlay of Llandaff (CB)]

Before the noble and learned Lord sits down and we end this, I have a real concern. If we are going to have a review from when the law is implemented, and it reports and decides what needs to be done, what is going to happen during that period to the victims, who may find that the argument that the chain of causation has been broken is picked up by insurance companies in an industry that is desperate not to pay out? As we have heard, the Government themselves have an interest in not having to pay out because of the size of the compensation for which people are rightly due because their lives have been not only ruined but taken away.

To go back to the point about injury, one of the long-term dangers of a catastrophic injury is renal failure. What if someone in that position decides that they do not want to continue with dialysis? That would then put them in the category of being terminally ill. I am also concerned that the building site, or wherever it was where they were working, that caused the catastrophic injury could then claim that the chain of causation had been broken in this situation and therefore wriggle out of compensation that would otherwise be due.

[Lord Falconer of Thoroton (Lab)]

On the first point, as I said, the review has to report in the first reporting period required under Clause 50. That means that it reports probably three years before the Bill comes into force, so there will be no cases. It is not doing what the noble Lord, Lord Sandhurst, was saying. On the second point about wriggling out, what the noble Baroness was describing would also be a Fatal Accidents Act case, so it would be covered, one hopes, by what the review deals with.

[Lord Deben (Con)]

My Lords, I come back to the idea of having an inquiry and a report. I do not quite understand why the noble and learned Lord does not feel that it is much more sensible for us to have it in the Bill. After all, otherwise you are in a sense dictating what the inquiry shall come up with. The only inquiry that you would want to have is one that found an answer to the problem, but you do not know that if you set up an inquiry. I would rather like to have the answer to start with in the Act so that we know that those people are protected.

[Lord Falconer of Thoroton (Lab)]

The reason, from discussing and thinking about this issue, is that the Government see the most convenient way of doing it is to have a review that can make sure every single aspect is covered. That is the argument for the review.

[Baroness O’Loan (CB)]

It seems from what the noble and learned Lord just said that the Government have been discussing this issue. If they have, is it his intention to ensure that, in providing such information as the Government provide under the terms of the Bill, they warn people that if they opt for assisted suicide in certain circumstances, it is possible that they will lose compensation to which they would otherwise be entitled and that this is a matter on which advice needs to be sought? Are the Government aware of any other situations in which this may happen to people who may opt for assisted suicide?

[Lord Falconer of Thoroton (Lab)]

I am afraid that I am not the Government. On the issue of risk, my proposal—although I recognise that some people want to go further—sets out a sensible course to reach the aim that everyone wants to reach, which is that the problem does not arise. One will have to look at the extent to which one has to warn against that problem when one sees where the review goes, because the question of what warnings have to be given will have to be addressed only at the point when the review has already reported and any action has been taken on it.

[Lord Harper (Con)]

My Lords, this has been a good debate, and it has raised a very important issue. The noble Lord, Lord Hendy, being a distinguished KC, and my noble friend Lord Blencathra spotted that I had not in my remarks pushed the injuries point. I confess that I am torn on that, because some injuries are effectively caused by employment, like mesothelioma where asbestos ingestion through employment results in an illness, as defined in this Bill already. Of course, there are other injuries that can be received in an employment context, where they would not qualify as an illness but where the outcomes may be very similar. But I do recognise all the issues raised by my noble friend Lord Blencathra, so I am torn on that.

--- Later in debate ---

[Lord Farmer (Con)]

My Lords, the noble Lord, Lord Pannick, is quite right that autonomy is the basic principle under this Bill. In fact, the noble and learned Lord, Lord Falconer, told the Select Committee that the essence of the Bill before us is autonomy, which makes it an outlier. Terminal illness plus an autonomous decision should not be the model that allows this Bill to be engaged. That terminal illness must also be causing suffering, which is why I support my noble friend Lord Frost’s Amendment 84. Rather than this being a cruel and heartless precondition, there are many public policy reasons for this that others have mentioned.

First, it would prevent social and economic circumstances and fear of being a burden from driving applications for assisted suicide. Secondly, if suffering were included, doctors could properly discuss palliative care and pain management, and lack of care could never be the motivation. Finally, there is a democratic imperative. The publicly presented raison d’être for this Bill is always the relief of suffering. Yet, without a suffering requirement, assisted suicide can be for any reason if there is a terminal illness judged to lead to death within six months. Others, such as the noble Baroness, Lady Finlay of Llandaff, have said why this six-month rule is unsafe and unworkable. We are glad Esther Rantzen is still with us three years after she was diagnosed with stage four lung cancer. We all sympathise greatly and genuinely with the loss of control she is facing; none of us looks forward to that. Like Dame Esther, I am also in my ninth decade. It is not at all theoretical that I, or indeed anybody else in this Chamber, might be in a similar position fairly soon.

None of us can be casual or flippant about the loss of autonomy. However, neither can we be reckless about this further move into what is in fact extreme bodily autonomy. I am particularly taken by the treatment of autonomy by the late Rabbi Jonathan Sacks. The noble and learned Lord, Lord Falconer, assured the nation on the “Today” programme yesterday that he respects people of faith. Throughout Morality, the last book Sacks published while alive, he stressed that human dignity does not come from autonomy alone but from being in relationship with others and—dare I say it—with God. The thread running through it is that we are moral beings because we are not alone. Autonomy is, he said, a “significant moral principle”, but there are other values, equally significant, that limit autonomy. When it comes to life and death, society must decide whether life is something we own or something over which we are stewards. For Sacks, redefining life as private property is inherently dangerous. If life becomes seen as disposable at will, society risks weakening its shared responsibility to protect and care for the vulnerable. When autonomy is allowed to trump all other values, the moral fabric of care and duty begins to unravel.

Allowing assisted suicide to enable unfettered choice shifts dignity away from intrinsic worth towards functionality or self-sufficiency, which is a dangerous precedent. Once the boundary between caring for life and ending life is blurred, society risks losing reverence for the vulnerable. Sacks treats the enthroning of personal autonomy as symptomatic of our cultural shift away from shared moral responsibility—a “we” orientation—to hyper-individualism, the fixation on “me”, which you could also say is selfishness. Assisted suicide further skews this imbalance by treating life purely as an individual possession rather than a shared trust.

It is not surprising that Bill’s sponsors have gone down the same autonomy rather than suffering route as the US has done, because international metrics bracket us with the US in terms of how individualistic we are as a nation. Yet Australia has an even higher individualism score than the UK. States and territories within it, and other high-scoring countries such as Netherlands, Canada and New Zealand, have all resisted the siren song of extreme bodily autonomy in this area and so should we.

[Lord Falconer of Thoroton (Lab)]

This is a pretty high-quality speech; it has pretty little to do with the six months. It is about the whole principle of the Bill. I am just wondering whether it is going to connect back to the six months.

[Lord Farmer (Con)]

I am supporting the inclusion of suffering from the noble Lord, Lord Frost, which is increasing the choice from autonomy to increased suffering. That is how it joins here. As many noble Lords have said, it is a very important area for us to discuss, and it is the underlying principle that the noble and learned Lord has said is supporting this Bill.

I mentioned shrouded attributes at Second Reading: the long-term unintended consequences of a course of action that might be politically attractive in the short term. Others have warned of the inevitable widening of the Bill through judicial review and future legislation, but I want to point out where else extreme bodily autonomy might take us. It is currently illegal to sell body materials—no money can change hands, apart from fixed compensation for expenses incurred for donating, for example, eggs, sperm or live organs such as kidneys. All that people can get for donating blood and plasma is light refreshments. Asserting autonomy and ownership over body parts would mean that people could sell one of their kidneys, perhaps to get out of debt. Do we really want that?

People with the rare condition body integrity dysphoria—BID—feel that a specific, healthy part of their body does not belong to them and that their body might feel right if it were removed or disabled. Until this happens—and, sadly, sometimes after amputation—they experience intense persistent distress, which usually starts in childhood or early adolescence and is lifelong. Again, do we really want what is illegal for doctors to perform now in this area to become legal and socially acceptable?

It is our duty and role in the UK legislative system to bottom out these shrouded attributes and long-term culture-shifting consequences. Bodily autonomy can never be treated as an absolute right. It must always be balanced against our status as moral social beings. Its primacy in the Bill is not a virtue but a fatal flaw.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

[Lord Moylan (Con)]

This has exposed something that has never been mentioned in relation to the Bill before, or in the whole of our debate on terminal illness. It is a matter of crucial importance. I know the Minister wants to dodge it, but it seems that the Government’s interpretation of Clause 2(1) is very different from what it appears to say in plain language.

[Lord Falconer of Thoroton (Lab)]

I pay tribute to the speeches of the noble Lords, Lord Farmer, Lord Shinkwin and Lord Shamash, all of whom referred to distressing personal circumstances. The Committee is grateful that people are willing to talk about these issues in this very difficult debate.

This group of amendments concerns the definition of terminal illness. As people have just identified, the definition of a person being terminally ill to satisfy the requirements of the Bill is that

“the person has an inevitably progressive illness or disease which cannot be reversed by treatment, and … the person’s death in consequence of that illness or disease can reasonably be expected within six months”.

I will pick up on four points that came out of the debate. First, to deal with the point raised by the noble Lord, Lord Moylan, the words “inevitably” and “progressive” plainly limit the words “illness or disease”, so the illness or disease has to be both inevitable and progressive.

Secondly, to deal with the very important point raised by the Baroness, Lady Finlay of Llandaff, frailty is plainly not within that definition. Frailty, old age or something similar would not satisfy the requirements of

“an inevitably progressive illness or disease”.

That specific point was addressed in the Commons, where the initial draft of the Bill had the words

“inevitably progressive illness, disease or medical condition”.

The words “medical condition” were removed to deal with that specific point. The words

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

deal with the sort of example given by the noble Baroness, Lady Coffey, and other noble Lords. There will be illnesses or diseases, such as type 1 diabetes or HIV/AIDS, where there is a traditional and accepted treatment which will effectively reverse the effect of the condition. It will not get rid of it completely. You still may have HIV or be a type 1 diabetic, but the effect of the condition is reversed. The intention behind putting in the word “reversed” was to deal with those.

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[Baroness Grey-Thompson (CB)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

May I just finish this?

For example, the noble Baroness, Lady Lawlor, proposed 80% and two people expert in the area. The requirement of the Bill is that there should be a reasonable expectation that the person’s death will come within six months. That has to be approved by two separate doctors and a panel. Where there is any doubt about the prognosis, each or both of the doctors have to seek the advice of somebody specialist in the area. That seems an appropriate degree of safeguard.

I apologise to the noble Baroness.

[Baroness Grey-Thompson (CB)]

I just wanted to clarify what the noble and learned Lord said. He said, as I understand it, that he did not support these amendments because they would mean that a dying person would have to make difficult decisions. Is requesting assisted suicide not a difficult decision, which they would already be taking?

[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—

[Lord Harper (Con)]

I deliberately did not intervene on the noble and learned Lord earlier, because he dealt with the point and I thought that we had spent enough time on it. He has now just made it even more confusing. I just want to make sure that I have this right. The Minister appeared to be saying that you could have a set of conditions, none of which was fatal but the combination of them was terminal, and that that would trigger the circumstance. I said that that was not what the Bill said. The noble Lord, Lord Pannick, pointed out that if you had a range of conditions, all of which were fatal, that would count—I do not dispute that at all. The noble and learned Lord seems to be saying that if someone has a condition that is not currently recognised as terminal, they would qualify under the Bill. Did I hear him correctly or have I got that wrong?

[Lord Falconer of Thoroton (Lab)]

The noble Lord has got that wrong. I was saying that, for example, the medical profession could easily recognise that HIV/AIDS is fatal. It would have recognised that at a particular time and that would be a medical diagnosis. The effect of the amendment in the name of the noble Lord, Lord Moylan, would be that you cannot rely on HIV/AIDS as a basis for saying that you have an inevitably progressive illness or disease that cannot be reversed by treatment, which was the position for a long time, unless the state has put it into a list of regulations. I am saying that it should be the doctor’s determination of whether theTo go on with the questions that have been raised, the noble Lord, Lord Moylan, asked what the paragraph under Clause 2(4) means. It means that the fact that you have a disability or a mental disorder that cannot justify a terminal illness does not mean that you cannot nevertheless qualify because you do have a terminal illness that satisfies the requirement of Clause 2(1).

On the question of congenital disorder and Amendment 105, if the position is that you are suffering from a progressive illness or disease that is likely to end your life within six months, I think that you should be entitled to an assisted death. My noble friend Lord Shamash referred to such a condition in relation to his cousin; I am not in favour of excluding a particular category in relation to that.

Everybody in the House has enormous respect for the noble Lord, Lord Shinkwin, and I completely accept the proposition that those of us who are not disabled have to listen very carefully to those who are. It is true that, in the other place, Marie Tidball, who is a Member of Parliament, supported the Bill and was in particular influenced by the fact that amendments were made to it that ensured that a disability group would monitor the performance of the Bill. However, I completely accept the proposition that the noble Lord, Lord Shinkwin, makes that we have to listen as hard as we can because it is not part of our experience. That proposition applies not just to this Bill but to a whole range of Bills.

On two further points, first, a number of noble Lords made the point about developments in medicine. It is true that medicine develops all the time; one needs to keep up with those developments and the doctors making the diagnosis have to have those in mind. But the fact that there are going to be developments in the future does not prevent the position from being that at a particular moment in time—HIV/AIDS is the obvious example—because those developments have not yet occurred, those diseases are going to be fatal. The fact that something may occur in the future does not prevent the judgment from having to be made.

Finally, on Amendments 97 and 98, proposed by the noble Baroness, Lady Grey-Thompson, for understandable reasons she proposes effectively a shift in the wording to be much more respectful of disabled people. I can see no reason why we should not make that amendment.

[Lord Hamilton of Epsom (Con)]

The noble and learned Lord kindly agreed to address the issue of inadvertent misdiagnosis and he said that this group of amendments led by Amendment 71 was the time to bring that up. It was pointed out at the time by the noble Baroness, Lady Berger, that 23% of six-month diagnoses of death turned out to be wrong. How does that tie in with the Minister telling us that there had to be an assumption of an 80% chance of somebody dying within six months? Can the noble and learned Lord address that problem before we finish?

[Lord Falconer of Thoroton (Lab)]

First, I am saying that six months is safe for the reasons that Chris Whitty gave: six months is generally about right; it might not be right and it might be five months or seven months, but it is a proper basis on which to proceed. The statistical evidence that the noble Lord, Lord Hamilton, is relying on is about errors that are not of the massive scale that would undermine that proposition. Secondly, having just checked with my noble friend the Minister, she was not saying that it had to be 80% right. She was saying what the amendment said—I think it was in the name of the noble Baroness, Lady Lawlor—and why it was not an appropriate or workable amendment.

[Lord Shinkwin (Con)]

I thank the noble and learned Lord for mentioning the importance of listening. I also thank him for the fact that, in dismissing every single amendment that your Lordships have considered, he has reminded the House of the extent to which he is listening. I ask him, because he failed to address my question about filibustering, to confirm that our consideration of these amendments will not be presented as filibustering—a yes or no would suffice. Finally, I do not suffer from my condition; I live with it, despite obstacles that I encounter. I suffer from prejudice.

[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.

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Moved by

[Lord Falconer of Thoroton]

87: Clause 2, page 2, line 7, leave out subsection (2) and insert—
“(2) Where—(a) a person does not eat or drink, or limits their eating or drinking, because of a mental disorder, and(b) their not eating or drinking, or limited eating or drinking, causes them to have an illness or disease, the person is not regarded for the purposes of this Act as terminally ill by virtue of the illness or disease.”Member's explanatory statement
This amendment clarifies the intended effect of the subsection (namely, excluding from the definition of “terminally ill” any illness or disease caused by the person not eating or drinking, where not eating or drinking occurs as a result of a mental disorder), and expressly provides that the subsection also covers cases of limited eating or drinking.

[Lord Falconer of Thoroton (Lab)]

My Lords, this is an important amendment designed to ensure that persons with anorexia cannot, by not eating, put themselves into a position in which they qualify for an assisted death. I am delighted to have the support of the noble Lord, Lord Carlile, the noble Baroness, Lady Parminter—who has played a very significant part in bringing this to our attention and ensuring that we get the right answer—and the noble Baroness, Lady Hollins, who is in her place.

The matter was raised in the Commons and an amendment was agreed on Report, because everybody agreed that people with anorexia should not be able to get themselves into eligibility. Clause 2(2) was inserted, stating:

“A person who would not otherwise meet the requirements of subsection (1) shall not be considered to meet those requirements solely as a result of voluntarily stopping eating or drinking”.


That gives rise to two significant problems. The first concerns “solely”. If it was only by reason of not eating or drinking, you would fall out of it, but it might be partly because of it and partly for other reasons—which would make anorexia a means of getting you to an assisted death. Secondly, there was doubt about “voluntarily”. Is it voluntary if it is truly a medical condition?

The amendment that I and those supporting me are proposing is intended to deal with both issues. It says that where

“a person does not eat or drink, or limits their eating or drinking, because of a mental disorder, and … their not eating or drinking, or limited eating or drinking, causes them to have an illness or disease, the person is not regarded for the purposes of this Act as terminally ill”,

so it does not have to be the sole reason. I believe that this is workable and does what I think everybody in this Chamber would want—to exclude people with anorexia from making themselves eligible.

Since that amendment was tabled, an amendment has been tabled in the name of my noble and learned friend Lady Scotland of Asthal, supported by my noble friend Lady Berger, which would put in before

“because of a mental disorder”

in my amendment “either voluntarily or”. That would cover every possibility.

I am keen to accept the amendment to my amendment tabled by the noble and learned Baroness, Lady Scotland, and the noble Baroness, Lady Berger. I invite the Committee to agree my amendment today. I will not put it to a vote, but if the Committee thinks it is the right course to take, I invite noble Lords, in accordance with acceptable practice in Committee, to agree on the nod that it goes in today. I beg to move.

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[Baroness Merron (Lab)]

My Lords, I am grateful to noble Lords for their contributions to this debate. Amendment 87, tabled by my noble and learned friend Lord Falconer, the sponsor of the Bill, would clarify the intention of the current Clause 2(2), which is to prevent someone becoming eligible for an assisted death due to an eating disorder. Amendment 87 replaces Clause 2(2). The Bill’s sponsor in the other place indicated that they would look to improve the clarity on who is and who is not eligible in this clause. The noble Lord, Lord Harper, asked about interpretation. I hope those comments will be helpful, because the eligibility of people with eating disorders under the Bill is, of course, a policy decision, not one for government. I am sure that my noble and learned friend heard the noble Lord’s point.

This amendment, as is usual practice, has been drafted with the technical support of the Government, within the policy intent of the sponsor and of the other place. The amendment excludes from the definition of “terminally ill” any illness or disease caused by the person not eating or drinking, where not eating or drinking occurs as a result of a mental disorder. It also makes it clear that this expressly covers cases of limited eating or drinking. Given that Amendment 87 replaces Clause 2(2), if noble Lords accept it, a number of the other amendments in this group will, of course, fall away.

I turn to detailed comments on amendments that the Government consider have major legal, technical or operational workability concerns. Amendment 89, tabled by the noble Lord, Lord Polak, would lead to a person not being considered terminally ill under the Bill solely as a result of withdrawing medication, hydration or life-sustaining devices. Amendment 91, tabled by the noble Baroness, Lady Finlay, would mean that those whose refusal of nutrition is due to a mental illness would not be considered terminally ill under the Bill.

Amendment 92, tabled by my noble friend Lady Debbonaire, would exclude a person from eligibility if their terminal illness was

“solely as a result of standard medical treatment being refused or withheld”.

This amendment could have the potential undesirable impact of undermining a person’s autonomy and right to make informed choices about their own medical care. The definition of “standard medical treatment” is unclear here: the exclusion from eligibility could apply to a patient who refuses one standard medical treatment in favour of an alternative standard medical treatment. A refusal of standard medical treatment would mean that a person would become ineligible for ever, even where their refusal had no impact on their prognosis.

Amendment 101, tabled by the noble Baroness, Lady Parminter, would prevent people with physical effects or complications of a mental disorder being eligible for an assisted death. This may be difficult for clinicians to apply, as “physical effects” is an undefined term. The current drafting also layers a “for the avoidance of doubt” provision on top of another “for the avoidance of doubt” provision, which could lead to ambiguity about how the legislation should be interpreted. I heard the noble Baroness say that she was concerned about the drafting, so I hope those comments will be helpful to her.

Amendment 103, tabled by the noble Baroness, Lady Fox, would remove from eligibility people who, because of the effect of a mental disorder, refuse life-saving treatment and develop a terminal condition. Where amendments limit eligibility for specific groups, they could give rise to legal challenge under Articles 2 or 8, with Article 14, of the ECHR if such restrictions are not objectively and reasonably justified. As I have said, it is for noble Lords to consider the amendments in that light, should they wish to.

[Lord Falconer of Thoroton (Lab)]

First, I detect that the mood of the Committee is that I should put my Amendment 87 into the Bill, but subject to the amendment tabled by the noble and learned Baroness, Lady Scotland, and by the noble Baroness, Lady Berger, so I am minded, unless anybody indicates to the contrary, to let that process go ahead. I accept that, in putting it in, there are those who would like to build on it on Report, but I think we should put it in now.

I will deal very quickly with the other amendments in the group. Amendment 88, tabled by the noble Baroness, Lady Grey-Thompson, would leave out “solely”.

[Lord Harper (Con)]

I completely agree with the noble and learned Lord, and I would be happy for the amendment to be made, but he said that he recognises that there are those who would want to build on it on Report. Can he cover the point I made? Obviously, he will have the support of draftspeople and policy officials from the department to help him craft something. Does he recognise that there is still a gap in dealing with some other eating disorders? Will he bring forward some amendments or will he expect those to come from others?

[Lord Falconer of Thoroton (Lab)]

Two groups of eating disorders were identified. First, the noble Baroness, Lady Finlay of Llandaff, identified people who eat only one particular thing. I myself have experience of fruitarians and the consequences of eating only fruit—it may be very bad. Those who have a limited, particular intake are covered by Amendment 87.

A separate group, the bulimic group, gives rise to different sorts of problems. I will consider the position of bulimics, but I do not want to create any expectation that that would lead me to table any further amendments. It may be that other people will table them in the light of what I have said, in which case I will of course consider them, but I think that might be a slightly different category.

[Baroness Finlay of Llandaff (CB)]

Would the noble and learned Lord consider the T1DE group? Eating disorder charities recognise not only that this is a serious group but that it has a very high mortality rate.

[Lord Falconer of Thoroton (Lab)]

Of course I will consider it.

Amendment 88, in the name of the noble Baroness, Lady Grey-Thompson, is an amendment to Clause 2(2), which will go, in the light of Amendment 87. Amendment 89 is in the name of the noble Lord, Lord Polak, but was spoken to by the noble Lord, Lord Empey, who is, sadly, not in his place. It would make ineligible those who withdraw

“medication, hydration, or life-sustaining devices”.

Hydration is covered already by Amendment 87, which is coming. I am not in favour of the changes in relation to withdrawing medication or life-sustaining devices because, as I said on the first group, it is generally for the patient to decide what treatment to have. If, for example, they do not wish to have a difficult further round of chemotherapy, they should be allowed to make that choice. If, for example, they have MND, and they wish to be taken off the respirator, they should be allowed to do so as well. Unfortunately, I therefore do not support those amendments.

Amendment 91, tabled by the noble Baroness, Lady Finlay of Llandaff, which would insert

“where the refusal of nutrition is a result of mental illness”,

is now covered by Amendment 87.

Amendment 92 would insert:

“A person who would not otherwise meet the requirements of subsection (1)”—


that is, the definition of terminal illness—

“shall not be considered to meet those requirements solely as a result of standard medical treatment being refused or withheld”.

I dealt with that in a previous group. If it is a case of type 1 diabetes or dialysis then you do not make yourself eligible by refusing that. I do not think that any further change is necessary.

Amendment 101, in the name of the noble Baroness, Lady Parminter, would insert:

“For the avoidance of doubt, the physical effects of a mental disorder, such as an eating disorder, would not alone make a person eligible to meet the conditions in subsection (1)(a) and (1)(b)”.


That is what provoked the change in Amendment 87. I appreciate that the noble Baroness, Lady Parminter, is the person responsible for the change, and that she has supported our amendments.

Finally, Amendment 103, tabled by the noble Baroness, Lady Fox of Buckley, addressed those who would refuse treatment as a result of a mental illness, and then that refusal leads them to be eligible. I am not in favour of the amendment for two reasons. If you have refused treatment because of a mental illness, you would not have had capacity to refuse treatment in the first place. Suppose that, as a result of a mental illness, you ended up not getting treatment for something and now, with complete capacity, your cancer is much worse than it would otherwise have been. Should you be denied an assisted death if it is otherwise available? In my view, you should not.

Amendment 87A (to Amendment 87) agreed.

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[Baroness Berger (Lab)]

I endeavoured to keep my remarks brief, and I believe I did so, taking under five minutes. The point of the amendments is very specific, around eligibility, which we had not discussed. We talked more broadly about the concerns around the Mental Capacity Act, but not specifically in the context of capacity. Obviously, we listened closely to the sponsor of the Bill’s response to the earlier debate, and the point raised in these amendments was not in any way addressed. These are additional points, beyond the principle and the wider concerns about people who are under deprivation of liberty and those who will be considered under the Mental Capacity Act. Clearly, we have listened to the experts, who have raised many concerns about the Mental Capacity Act, but the purpose of these amendments is to address eligibility.

I hope that the sponsor of the Bill will give us some more colour and detail about amendments he might come forward with on Report. But we have been in Committee since the middle of November, and in the absence of anything so far coming forward from the sponsor on the Mental Capacity Act and deprivation of liberty safeguards—I think this speaks to the concerns of many in this House—we are therefore compelled to bring forward these amendments to raise these issues. If something did come forward, that might enable us to withdraw future groups of amendments altogether, and maybe that will be the case. I look forward to the sponsor’s response.

[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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[Baroness Finlay of Llandaff (CB)]

My Lords, I am grateful to the noble Viscount, Lord Colville, for having spoken so clearly and eloquently to Amendment 115, which I tabled because it was suggested by the Complex Life and Death Decisions group at King’s, with particular input from the eminent national expert on mental capacity law and practice, Professor Alex Ruck Keene KC.

The amendment aims to provide clarity for doctors who are going to make the decisions as gatekeepers on the process. The amendment is necessary for two reasons. Let us remember that the Mental Capacity Act was written to prevent someone from doing something to you that you did not consent to. When you are unable to decide whether or not somebody can do something to you, you fall into the best interest decision framework, but that will never apply in this situation.

The amendment is necessary, first, to comply with our obligations under the ECHR and, secondly, to make the test of capacity enshrined in the MCA fit for purpose within the scheme of the Bill. The amendment is compatible with the Mental Capacity Act. It would not create a different process but would clarify that the point made in the letter from Sir Chris Whitty, following his evidence, is adhered to. He said that

“there is a clear need to have capacity for the particular decision that is to be taken. It follows that the more complex the decision the more the individual will need to be able to weigh the consequences and an assessment of their ability to do this is a key part of assessing whether or not they have capacity”.

We must not lose sight of the fact that the decision to take one’s life is the most momentous decision and is irreversible. It therefore requires a higher standard than the myriad other decisions that people take in the context of health and social care or finance.

The state’s obligations under Article 2 of the ECHR are to

“prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved”.

That was the verdict in Haas v Switzerland in 2022. The amended Clause 3, as tabled, would discharge the state’s obligations by ensuring proper consideration of their capacity and that they have a full understanding of what the receipt of assistance in dying involves. However, the MCA does not work in the context of the Bill, as it would mean that unresolved doubt would compel the conclusion that the person had capacity to decide to end their life and oblige those assessing the person to support the person in that decision.

Amendment 115 would maintain the test of capacity with which practitioners are familiar but enable them to apply that test within the framework of the Bill. It would therefore constitute not a further hurdle but an appropriate framing. It borrows language from the MCA where appropriate, as in subsection (2). That language is familiar to anyone who has used the Mental Capacity Act. Like other amendments in this group, it would remove the inherent dangers of the presumption of capacity that others have spoken of.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting. Just so that I am clear, is the noble Baroness, Lady Finlay, making the point that if we use the provisions of the Mental Capacity Act to determine capacity for assisted dying, we are breaching the ECHR? I think that that is what she is saying.

[Baroness Finlay of Llandaff (CB)]

The noble and learned Lord is correct that that is a challenge that has been put forward—that, as the Bill is currently written, that may be the case, but Amendment 115 would correct that.

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[Baroness Merron (Lab)]

I am sure that both I and my noble friend will be very pleased, together or separately, to reply to the noble Baroness.

[Lord Falconer of Thoroton (Lab)]

I shall deal with the issues raised in this debate under the following heads. First, what is the correct test and legal framework to apply in relation to mental capacity? Secondly, how do we deal with the question of particular conditions that people have? Does it make it inappropriate, or should there be exceptional protection? Thirdly, what about Clause 22, which is the independent advocate provision?

First, on capacity, as noble Lords know, the Bill provides that the tests under the Mental Capacity Act 2005 shall be applied to determine whether or not the person seeking an assisted death has the capacity to make such a request. Remember as well, for what it is worth, that, in addition to having the capacity to make that request, the person, in order to get an assisted death, also has to have a clear, settled and informed wish to end their own life, and has made that decision to end their own life voluntarily and has not been coerced or pressured by any other person into making it. Those last two protections—a clear, settled and informed wish, voluntary and no coercion—are separate from the question of capacity.

The question of capacity is: is that person capable of making the decision? The Mental Capacity Act, which has been in force for approximately 20 years, starts from the assumption that a person does have capacity to make a particular decision, and only if it is shown that the person does not have that ability are they not able to make that decision themselves.

Should we change that assumption? There are two big proposals in front of us. First, there is Amendment 115 in the name of the noble Baroness, Lady Findlay of Llandaff, and supported in particular by the noble Viscount, Lord Colville of Culross, who made a speech in favour of it. Subsection (1) of that proposal says:

“In this Act, a person has capacity to make a decision to end their own life if they do not lack capacity to make that decision, and references to “capacity” are to be read accordingly”.


I shall read that again for those who did not get it first time round. In this Act, the proposal is that

“a person has capacity to make a decision to end their own life if they do not lack capacity to make that decision, and references to “capacity” are to be read accordingly”.

That looks almost identical to the existing provisions, and I am quite unable to see what the difference is that is being proposed.

[Baroness Finlay of Llandaff (CB)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

May I go on with this amendment? I want to finish before the noble Baroness comes in.

The bulk of the amendment, or at least a lot of it, is similar to what is already in the Act. A number of questions are spelled out in subsection (6) of the draft; for example, there should be discussion of the

“relevant and available care and treatment, including palliative care, hospice or other care”.

What is being said is that in testing capacity there has to be consideration of all the detailed factual material that might be relevant to such a decision. Noble Lords will recall that both the co-ordinating doctor and the independent doctor have to consider and discuss with the patient almost all those issues. For example, they have to

“explain to and discuss with the person being assessed … the person’s diagnosis and prognosis … any treatment available and the likely effect of it … any available palliative, hospice or other care, including symptom management … the nature of the substance that is to be provided”.

The point I am making is that the difference between what the noble Baroness, Lady Finlay, is proposing in her amendment and the existing law on mental capacity looks incredibly thin. The difference is very slight.

Secondly, and separately, any reasonable person going through this would have to discuss what the consequences were of an assisted death, but that is already provided for in the Bill. I ask the question: is it sensible for there to be two similar but different capacity tests operating in the context of both the health service and what the panel has to decide?

Sir Christopher Whitty said that he was concerned about the idea of two different fine legal distinctions applying, particularly, as he emphasised, because the decision on capacity would be a different question—for example, someone in one room deciding, “Should I have an assisted death?” and in the next room, someone making the decision, “Should I have the ventilation removed in the later stages of my motor neurone disease?” The noble Lord, Lord Wolfson, who I am glad to see in his place, has made the distinction between an assisted death on the one hand and the removal of treatment on the other, but, for the patient involved, both involve the certainty of death.

In my view, having listened very carefully, read a lot about this and talked a lot about it, the idea that two separate tests should apply is damaging, confusing and wrong. Although it is helpful because it is detailed and sets out what the noble Baroness has in mind, I am not in favour of that particular change to the Mental Capacity Act. Yes, there are problems around its enforcement, and it is patchy in its enforcement, but we are talking about the legal framework within which the decision has to be made.

The other aspect of this has to be: will it be properly enforced? People are saying, “It won’t be properly enforced—look at the way decisions are made, sometimes badly, now”. The magnitude of the decision that is being made is why we have a co-ordinating doctor, an independent doctor and then the panel making sure at every stage that the position has been dealt with.

[Baroness Finlay of Llandaff (CB)]

May I finally ask the noble and learned Lord my questions? I waited until he had finished. Does he recognise that the Mental Capacity Act has no test at its start because the starting point of the Act is that there is a presumption of capacity? The danger is in the overpresumption of capacity. That is why the wording in the amendment uses the language of the Mental Capacity Act to close that gap and avoid the chasm of presuming that there is capacity when there is not.

I gave the example of those with frontal lobe disorder, but we also see disordered thinking in people who have severe electrolyte disturbance. That can be corrected, but the problem with frontal lobe disorder is that it is usually irreversible—

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[Lord Falconer of Thoroton (Lab)]

My Lords—

[Baroness Finlay of Llandaff (CB)]

May I finish my list of questions and then the noble and learned Lord can come back? Can he write to us to tell us who Chris Whitty spoke to before giving evidence to the committee that the Mental Capacity Act is adequate? If he spoke to the CLADD group and those involved in the National Mental Capacity Forum, I am surprised that they would have said it was adequate, because they are the people who were particularly concerned about that clause and felt that this should be corrected.

[Lord Falconer of Thoroton (Lab)]

My Lords—

[Baroness Finlay of Llandaff (CB)]

All right, I will stop there and come back in afterwards.

[Lord Falconer of Thoroton (Lab)]

First, in relation to the noble Baroness’s analysis of the Mental Capacity Act, Section 1 says that you shall be assumed to have capacity unless you do not have capacity and Section 2 says, broadly, that you do not have capacity if you are not capable of making a particular decision. The law and, I believe, practitioners, have found that a perfectly adequate framework within which to operate.

Secondly, on the example the noble Baroness gives about frontal lobal problems, this is a problem not about presumption but that, in certain cases, capacity is difficult to identify. That has to be addressed under the Bill, because the two doctors and the panel have to be satisfied that there is capacity. As it happens, they also have to be satisfied that it is the firm and settled view of the person that that is what they want.

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[Baroness Cass (CB)]

I would never come at the noble and learned Lord, for whom I have the greatest respect. We de facto have to make changes to the Mental Capacity Act in the application of this, because, where a person does not have capacity, you make a best interests decision, but, clearly, we are not doing that in this case, so we are already deviating from how the Mental Capacity Act would work normally in relation to medical procedures. Where you think the medical procedure is the right thing, either the patient makes that decision or someone else would make it for them in their best interest, so we are already deviating.

Secondly, people will be trained specifically to carry out this work, so we have four years to train people to do this appropriately. I do not think slightly different training in this setting, compared to capacity in other situations, would be too burdensome for practitioners.

[Lord Falconer of Thoroton (Lab)]

On the Act not applying, the noble Baroness is absolutely right that best interests never come into it, because if the patient does not have capacity, that is the end of the matter and they cannot have an assisted death. It is worth pointing out that the Bill says:

“In this Act, references to a person having capacity are to be read in accordance with the Mental Capacity Act 2005”.


All this Bill is incorporating is the reference to capacity, not the second half of the Mental Capacity Act, which sets out what happens if you do not have capacity.

[Baroness Lawlor (Con)]

If the noble and learned Lord is not going to write to Sir Chris Whitty to find out further, can he remind us to what evidence he referred when he gave his judgment that the Mental Capacity Act 2005 was suitable for the purposes of this Bill?

[Lord Falconer of Thoroton (Lab)]

He gave evidence both to the House of Lords Select Committee and the Commons Select Committee, where he gave his opinion that having two different tests for mental capacity was a bad idea. He gave as a particular reason for that the fact that it would be inappropriate and difficult for doctors to apply the capacity test in one room about the withdrawal of treatment and in the other about an assisted death. That was the material he relied on. We are each capable of evaluating that argument for ourselves. If the noble Baronesses, Lady Lawlor or Lady Finlay, would like to interrogate him further on that, be my guest.

[Baroness Finlay of Llandaff (CB)]

My Lords, I said I would come back. For the information of the Committee, I have had confirmation that Chris Whitty did not speak to the chair of the National Mental Capacity Forum before giving evidence. He may have bypassed her—so be it.

However, there is another aspect. The doctors doing the assessments are going to be trained; it will not be just any doctor, anywhere, doing these assessments without specific training. If they are going to be trained, it is difficult to understand why the noble and learned Lord does not think that we should make sure their training is as watertight as possible and that they are as best equipped as possible to assess capacity, which may be at a higher level than other doctors who are not involved in this process.

[Lord Falconer of Thoroton (Lab)]

I do think they should be properly trained—I am very strongly in favour of that. But, with the greatest respect to the noble Baroness, Lady Finlay, that appears to be a completely different question from what the right legal framework should be. That is what we are talking about here.

[Baroness Finlay of Llandaff (CB)]

Could the noble and learned Lord clarify whether or not the legal framework we are talking about in the Bill is to be applied by the assessing doctors?

[Lord Falconer of Thoroton (Lab)]

The framework that is to be applied by the co-ordinating doctor and the independent doctor is the framework for assessing capacity under the Mental Capacity Act. That is what the Bill says, and I am resisting the changes in Amendment 115, in the name of the noble Baroness, Lady Finlay.

The noble Baroness, Lady Hollins, is proposing something rather different from that which the noble Baroness, Lady Finlay, is proposing. She proposes that the Secretary of State must, by regulations, establish a framework for the assessing and determination of capacity; that having capacity is to be read in accordance with that framework and not the framework under the Mental Capacity Act; that regulations must involve setting out an evidence-based methodology; and that any assessment must be conducted by a practitioner psychologist who holds particular qualifications and requires the use of validated, standardised instruments capable of detecting subtle or partial impairments in cognition, reasoning or decision-making capacity.

I understand from the speech that the noble Baroness made, and from her splendidly detailed amendment, that particular specialists applying a different regime from that which already applies, with specialised tests, should be the only people who can give a capacity assessment here. Again, in my respectful submission, that falls foul of the same arguments that I advanced before. The first of those is that the Mental Capacity Act is tried and tested in dealing with the question of whether someone is able to make the decision. Secondly—and I am glad the noble Baroness, Lady Finlay, gave me the opportunity to answer this—the co-ordinating doctor and the independent doctor will require training, and the panel will have experience in making these decisions. Thirdly, they will be making decisions having received proper advice.

[Baroness Hollins (CB)]

A bespoke decision-making framework would initially be legally untested, but the same is true of the Mental Capacity Act, which, as my noble friend Lady Cass said, has never been operationalised or judicially tested in the context of assisted dying. The idea that the two doctors involved would be trained ignores my point that this kind of complexity is not something that can be learned simply through an extra little module. It requires years of experience to help people develop the understanding and ability to make these kinds of assessments. Further, the existence of bespoke decision-making frameworks is not novel in UK law. The Mental Health Act already operates in power over the Mental Capacity Act, recognising that certain contexts require a different approach to decision-making.

[Lord Falconer of Thoroton (Lab)]

I do not want to be disrespectful, but that was just a repeat of the speech that has already been made and it did not contain a question. I completely respect the arguments of the noble Baroness, Lady Hollins, but she should really only ask me questions, rather than make a speech in the middle of my speech. I apologise for having to say that, but she has not asked me a question.

[Baroness Hollins (CB)]

Let me frame it as a question then. Does the noble and learned Lord agree that there are already bespoke decision-making frameworks and that this is not novel in UK law?

[Lord Falconer of Thoroton (Lab)]

I agree that there are bespoke decision-making processes in existence. It is not the law; it is how it works in practice. Through codes of practice, it will be possible to develop appropriate methods of dealing with it.

[Baroness Lawlor (Con)]

I have difficulty with the noble and learned Lord’s answer in respect of the Mental Capacity Act. He is absolutely right to say that, if you do not have capacity, you cannot avail yourself of this, but the Mental Capacity Act also says that you should not be judged not to have capacity if, to paraphrase, you cannot retain relevant information over a period of time, as referred to in Amendment 107, from the noble Lord, Lord Hunt, or, as referred to in my amendment, you can understand relevant matters in simplistic, visual or other ways appropriate to you. To my mind, that suggests that the Mental Capacity Act, in making exceptions about having capacity, is actually unsuitable for this. We hear all the time about the earlier part—and the noble and learned Lord is absolutely right—but it is those exceptions to the judgment on having capacity that worry me. They are not suitable for this. Will the noble and learned Lord explain why that inconsistency in judging capacity is suitable for the measure that he is proposing?

[Lord Falconer of Thoroton (Lab)]

I am not sure that I followed the subtlety of that question. The Mental Capacity Act 2005 is a tried and tested framework, which seeks to ensure that someone—a doctor, for example—has to make a decision about whether a patient is capable of deciding to withdraw from treatment. The doctors will be experienced in doing that and the legal tests have worked over the years. The noble Baroness, Lady Finlay, is right when she says that they are frequently not applied in the correct manner, but in this Bill the key thing is that there are safeguards so that those particular problems will not apply. That is why I am espousing quite strongly keeping the same test for the assisted dying Bill as in the rest of medicine.

[Baroness Butler-Sloss (CB)]

I have a practical question. What, then, is the noble and learned Lord going to offer us?

[Lord Falconer of Thoroton (Lab)]

I am not offering anything in the way of a different framework in relation to this. I am more than happy to discuss with people what sort of code of practice there should be. I say that not because I have not been listening—I have been listening as hard as I possibly can; but listening does, from time to time, involve disagreement as well. I apologise for disagreeing, but I do disagree with the two big schemes that have been put by the noble Baronesses, Lady Finlay and Lady Hollins.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

The noble Baroness can tell them that they will be safe. The question that she is raising in relation to such people is whether they will be overpressed to have an assisted death. My answer is that they will not, because they would have to satisfy a co-ordinating doctor, an independent doctor, a panel consisting of an ex-judge or a King’s Counsel, a psychiatrist and a social worker. In my view, this will provide him with protections. If the noble Baroness has the opportunity to speak to him, I very much hope she might tell him that there are those protections.

I am very aware of the fact that in normal day-to-day interchanges with various parts of the systems, both health and legal, there are those who may make disabled people feel that their lives are not sufficiently valued. Of all the interactions with the health service, however, this is the one that will be most protected. And by most protected, I mean giving most safeguards to somebody in Tommy’s position.

I should probably get on if we want to get away. I move to the question of the various conditions: this is the position of the noble Lord, Lord Moylan. He is asking whether we might just exclude certain conditions under the Mental Health Act, such as autism and learning disabilities. Many of these people will not be able to get an assisted death because they will not satisfy the capacity test, or they will not satisfy the requirement for it to be their firm and “settled” view. I do not believe that they should be excluded altogether in relation to that because, as pointed out by the noble Baroness, Lady Coffey, such a wide range of conditions are covered by the Mental Health Act. Autism covers a very wide set of circumstances. Is it right that everybody who is autistic should not have that right? Learning disabilities includes people who are dyslexic, for example. If that right is available to people, should it not be available to people who are dyslexic? I am not in favour of the suggestion made by the noble Lord, Lord Moylan.

I turn to the important point raised by the noble Lord, Lord Sandhurst, who draws our attention to Clause 25. This deals with the position at the moment of providing the assistance—that is, when the drugs are provided. It says:

“The coordinating doctor must be satisfied, at the time the approved substance is provided, that the person to whom it is provided … has capacity”.


The noble Lord, Lord Sandhurst, raised the question of what happens if he has doubts in relation to it. The answer is that he cannot be satisfied and that is the end of it. He has to be “satisfied”: that is the word used.

I turn to whether Clause 22 should stand part. As noble Lords will know, I have proposed a new Clause 22, and there is considerable detail in relation to it. It would be wasting the Committee’s time for me to talk about the existing Clause 22 when there is already available a detailed Clause 22.

[Lord Goodman of Wycombe (Con)]

I apologise to the noble and learned Lord if he has already answered the question about my amendment. I would be grateful if he would clarify his view of Amendment 113 in relation to the code.

[Lord Falconer of Thoroton (Lab)]

If that is a reference to whether there should be the affirmative rather than the negative procedure, may I take it away? That seems a reasonable request. May I get back to the Committee on that?

[Baroness Berger (Lab)]

My Lords, we have debated for just over two hours and some very significant issues have been raised. It is worth outlining briefly why this group matters, particularly in the context of what is happening beyond this place and considerations and representations being made in the media.

It was last week that Esther Rantzen told us that the Bill

“only applies to terminally ill people like me”.

The campaigners we hear from reassure us that it would obviously be something that they “freely choose and have fought for”. There are noble Lords who said at Second Reading in this place:

“I want that choice for myself”.—[Official Report, 12/9/25; col. 1786.]


It centres those who have no doubts about their capacity to make this decision and no doubt that they would freely choose, but it removes from the room people who are not like us. It is our job to balance the needs of those with true agency, for whom this will be a free choice, with those who may be pressured or led towards this path, in particular because of the inadequacies of the Mental Capacity Act.

It is clear that there remains significant concern about the relationship between the existing test in the Mental Capacity Act, brought forward in 2005, and the decision to have an assisted death under the Bill. At the risk of stating the obvious, a decision to have an assisted death was not in contemplation for the architects of that Act back in 2005, so it is not surprising that we have heard such a range of questions and concerns, both from noble Lords and from experts outside this Committee, including the Royal College of Psychiatrists.

I listened closely to my noble and learned friend’s remarks to the noble Baroness, Lady Finlay. It may be helpful for noble Lords to be aware that, back in the other place, the desire to use the Mental Capacity Act was largely pragmatic as it is what doctors are used to, not because it is the best framework for this decision. I reflect on the comments from the Health Minister, Stephen Kinnock, who said in the Commons that it is “a known quantity” and a well-established piece of legislation. He went on to say that doing things differently would cause “operational challenges and confusion”, and that a different approach would add complexity. This bunch of amendments has pragmatic, specific proposals for adjustments to address what we are trying to do within the constraints of the legislation. Perhaps this would have all been ironed out if we had gone through some proper pre-legislative scrutiny, as we would have done had this been a government Bill.

In particular, I acknowledge the expertise of the noble Baronesses, Lady Hollins, Lady Cass and Lady Finlay, in this debate. The debate has raised some serious questions about what these specific provisions of the Mental Capacity Act mean for the weakest and most vulnerable: the endorsement of unwise decisions; presumption of capacity; brief retention of information, and whether that is sufficient; a duty to support decision-making, which risks becoming a duty to facilitate a decision to die; and relying on time-specific capacity.

I have in front of me so many different important points raised by noble Lords from across the Committee. In the time we have available, I am not going to mention all of them, so I hope noble Lords will forgive me for that, but it is worth reflecting on just a handful. The noble and learned Baroness, Lady Butler-Sloss, raised the very important concerns about people with variable dementia and people who are sectioned. The right reverend Prelate highlighted the biases experienced by people with learning disabilities and the discrimination they face. The noble Baroness, Lady Finlay, talked about the need for clarity for doctors and how we can at least endeavour to make the Mental Capacity Act fit for purpose in the Bill. The noble Baroness, Lady Cass, reminded us all that assisted death is not a medical treatment. I again reflect on the important representations from the noble Baroness, Lady Grey-Thompson, on the concerns raised by the disabled community and the particular challenges not addressed in the Bill.

Given that my noble and learned friend Lord Falconer indicated in his response that he will defend the Mental Capacity Act as the foundation for the Bill, it is disappointing that he has dismissed the specific provisions that could be set aside and could make a difference. I welcome his earlier intervention, when he said that he would bring forward amendments that would introduce additional assessment in particular cases, but that question is different from the one being asked today, about how we can be confident that the test itself is the right one.

I was particularly concerned by my noble and learned friend’s response to the question from the noble Baroness, Lady Grey-Thompson, about whether a disabled person would be safe. He said that no one would be overpressed into making a decision to end their life. I think that, for many of us here, it is not about being overpressed: we do not want anyone to feel pressed at all. I hope that he will further consider that question, including how experts, who still have so many doubts, can be consulted in more detail.

Given that we first started talking about these issues in this place before Christmas, and in order to expedite our deliberations, I hope that we will not have to wait until Report and that the amendments he mentioned will be brought forward as soon as possible. We understand that he has a wealth of civil servants and legal experts at his disposal; perhaps they can help him to act even quicker. My noble and learned friend has outlined that he is not prepared to accept any of the amendments proposed in this group, but we would like to see what he intends to propose as an alternative. I know that everyone is concerned that we should expedite our deliberations, in the light of the later groups, and that would help us all enormously.

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[Lord Falconer of Thoroton (Lab)]

I said “overpressed”, but I did not mean that; I meant to say pressed. I apologise for saying “overpressed”.

[Baroness Berger (Lab)]

With that, I beg leave to withdraw my amendment.

--- Later in debate ---

[Baroness Merron (Lab)]

I will consult my lawyers with pleasure.

Lastly, all the amendments in this group address complex issues and, if they were passed, considerable further policy and drafting work would likely be required.

[Lord Falconer of Thoroton (Lab)]

I thank the noble Baronesses, Lady Smith of Newnham and Lady Hayter of Kentish Town, for sharing their significant and painful experiences. I thank the noble Baroness, Lady Fox, for doing the same in relation to the last months of her mother’s life.

This group deals with the question of whether there should be special provision for people in care homes. Two routes are suggested: first, in the amendment from the noble Baroness, Lady Eaton, which was spoken to by the noble Baroness, Lady O’Loan, that there be a higher evidential standard; and, secondly, that a series of additional tests should be raised.

I think that everybody in the Chamber is agreed that care homes vary across the country; there are those of the highest possible standards and those that do not have the same high standards. It is also the case—a point made forcibly and effectively by the noble Baroness, Lady Watkins—that one should not confuse the fact that there are people in long-term care and people in high-tech nursing homes who are being rather elided here. People become institutionalised and may suffer long-term cognitive problems from being in care homes for a long time. The question raised is whether additional steps beyond those provided for in the Bill should be put in place to check that such people, particularly those who have been in care homes for the long term, have capacity.

The current arrangements require that the co-ordinating doctor is satisfied, after discussion with the patient and anybody else, that they have capacity, and similarly in relation to the independent doctor. Then, the panel has to be satisfied, and then the co-ordinating doctor has to witness the second declaration of the patient. The co-ordinating doctor can witness that second declaration only if he or she is satisfied that, among other things, the patient has capacity. Fifthly, the doctor providing the assistance also has to be satisfied that the patient has capacity. The question posed is whether, despite the fact that there are five separate occasions on which a doctor or a panel have to be satisfied of capacity, for somebody in a long-term care home, one should make additional provision for separate assessments or have a higher evidential standard.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 27th February 2026 Lords Chamber

Finally, I turn to drafting considerations. If, as a matter of policy, the Committee decides to support these amendments, the Government may need to revisit the drafting to ensure coherence with the statute book. I am not going to set out every example of this, in the interest of time, but, for example, Amendment 144A in the name of the noble Baroness, Lady Freeman, contains ambiguous terms. For example, it is unclear what “personalised information” means in practice. That is it from the Government for this group.

[Lord Falconer of Thoroton (Lab)]

My Lords, first, I pay tribute to the noble Baroness, Lady Maclean, who referred to her own personal circumstances. Every one of us who have heard individual personal circumstances realises this is difficult to do, so I pay tribute to that and appreciate what she has done.

Secondly, I ask the Committee’s indulgence for 30 seconds to mention Mr Nathaniel Dye, who has been a campaigner for assisted dying and has been enormously helpful to me. He travelled through the whole process of this going through the Commons and the Lords. Tragically and suddenly, he died at the end of last month and today is his funeral. I know that his family, and everybody who knows him, would appreciate it if his involvement was recognised.

[Noble Lords]

Hear, Hear!

[Lord Falconer of Thoroton (Lab)]

Thirdly, I join with everybody in the Committee in deprecating vicious attacks on the noble Lord, Lord Sandhurst, and the noble Baroness, Lady Finlay. Any one of us who have been involved in this get vicious attacks outside. I agree with the noble Baroness, Lady Fox, when she says there is a slightly testy atmosphere from time to time in here. The best that we can do to try and fight off those attacks is to be as good-natured, funny and warm as we normally are. I am looking forward to the noble Lord, Lord Deben, being warm and funny again.

Fourthly, my Amendment 131A, which the noble Lord, Lord Harper, mentioned, would add that the Prime Minister is to consult the Welsh Ministers before making the appointment. I hope that nobody objects to that; it is what the Welsh Senedd effectively agreed by passing the LCM. When we come to that amendment, I will move it, as I detect no objections.

Finally, I am afraid I will not provide the noble Lord, Lord Moore of Etchingham, with any assistance in relation to the way he conducts himself in the Committee. He always conducts himself, if I may say so, with impeccable manners and courtesy. It is for each one of us to determine what is appropriate and what is not.

I will deal with the amendments quite quickly. They are all to deal with the voluntary assisted dying commissioner provided for in Clause 4. The voluntary assisted dying commissioner will be appointed by the Prime Minister. As my noble friend Lady Levitt, the Minister, has indicated, as long as that stays in, then it will be subject to an open appointment procedure involving an assessment panel.

The idea of the noble Lord, Lord Beith, is perfectly commendable: should a Select Committee look at the appointment? The way that would work in practice is that it would be for the Cabinet Office and the individual Select Committee to agree whether the appointment should be subject to a Select Committee procedure. I would be in favour of it. I do not think it is appropriate to put it into the Bill, but I can see real merit in it. Iwould not only have no objection to it, but I think it is a good idea.

[Lord Harper (Con)]

Given that the noble and learned Lord thinks it is a good idea and that part of the reason—I think the noble Lord, Lord Deben, touched on this—many of us have concerns is that so much of the detail of implementing this is not set out but left for decisions, what is his objection and rationale for not coming forward with an amendment and putting in the Bill so that it has to be done by a pre-appointment hearing rather than leaving it to a decision?

[Lord Falconer of Thoroton (Lab)]

With respect to the Select Committees in the other place, they should be consulted and decide whether they want it.

In the amendment from the noble Baroness, Lady Cass, she draws attention to the fact that the assisted dying commissioner has a function under the Bill. That function is to receive documents, make appointments to the assisted dying panels, make arrangements in relation to such panels—this means that he or she is responsible for making sure the process runs properly—and determining the applications for reconsideration of panel decisions. That means that, if a panel says no to an applicant who wants an assisted death, the voluntary assisted dying commissioner has the power under Clause 18 to say that another panel should look at it. He or she has that power in a semi-judicial function if there is an error of law in relation to it, so that is a function.

The commissioner also has a function to monitor the operation of this Act. If noble Lords go to Clause 49, they will see that he or she is given the power to make reports, give an annual report and identify things that may be of significance in relation to it. One should not confuse this role with monitoring, for example, the performance of doctors in relation to their role. I do not see the very specific functions and the obligation to monitor and give reports, as in any way in real conflict. I think they could be done by the same person, particularly if there is a deputy to be appointed as well. I note what the noble Baroness said, but I do not think it is necessary to make provision in the Bill for a separate role for somebody to do both. I have thought very carefully about it.

The noble and learned Lord, Lord Garnier, has been kind enough to indicate that he has had to leave, but I will deal with his point. He wants not the Prime Minister but the Lord Chancellor to make the appointment. The Prime Minister and the Lord Chancellor are both political appointments. We have chosen the Prime Minister because—even though I think there is practically nobody more important than the Lord Chancellor—the political world, for reasons I am completely unable to understand, regards the Prime Minister as more important. We have chosen the most important person in the Government to make the decision and, with the greatest respect to the noble and learned Lord, I do not think we should change that.

The noble Lord, Lord Weir, asked why we should have a judge. I am a great admirer of judges, and I declare an interest in that I am married to a judge. The reason why we have a judge is twofold. First, ex-members of the Supreme Court, the Court of Appeal or the High Court of England and Wales—it is England and Wales that we have in mind—have high standing. They are regarded as people of calibre, which is why they are put in. Secondly, one of the specific functions in the Bill is to consider whether the rejection by a panel is an error of law. That seems to us to be appropriate to be dealt with by somebody with high legal experience. Separately, the commissioner is somebody who has to issue rules and a process for dealing with it. That is the reason for doing that.

[Lord Deben (Con)]

If that is the argument the noble and learned Lord puts forward, with which I entirely agree, does it not lead him to understand that the proposal of the noble Lord who spoke unwillingly earlier, to put this back where it was in the first place—basically, under the control of judges—would be a very good thing to do? Why has he not accepted that most of us would be able to support that, and therefore we would cut down the time we are spending on dealing with the situation when it is not there? If it is necessary, as he says, why not do the whole hog?

[Lord Falconer of Thoroton (Lab)]

We have changed from a judge to a panel because, after considerable debate in the Commons, it was thought that having a legal person in the middle, a psychiatrist and a social worker gave greater reach and understanding of those issues. We debated that issue in full over a particularly long period of time on an earlier Friday. I am more than delighted to redebate it—however, I think that issue has been laid to rest. That does not mean one does not have to have a process whereby the doctors pass their findings to a panel, and that is the role, in part, of the assisted dying commissioner.

[Lord Harries of Pentregarth (CB)]

The noble and learned Lord talks about putting it to rest, but for many of us that issue is not at rest. I certainly supported the noble Lord’s Amendment 120, and I got the impression he was still thinking about its possible value—so, as far as many of us are concerned, it has not been put to rest.

[Lord Falconer of Thoroton (Lab)]

I was pretty clear in my remarks that I favoured the panel process. When I say that it has been laid to rest, I accept that the House may take a different view from me, which I would completely respect. To deal with that, obviously there would be a vote on Report when we would decide whether we wanted the panel or the court process. I hope the issue has been laid to rest, but if it has not and I lose, so be it. I earnestly hope that we get there and reach a decision in relation to it.

The noble Lord, Lord Moylan, would like to replace the word “principal” with the word “sole”. I make two points in relation to that. First, all the assisted dying commissioner can do is that which is prescribed in the Bill, because he or she is a creature of statute. Therefore, there is nothing more that he or she can do beyond that.

The word “principal” is used, not “sole”, because we do not want to get into a completely barren argument subsequently about whether something that the commissioner does as collateral to the principal functions is covered. That is why “principal” is used and why I would not be in favour of changing the wording of the Bill in relation to that.

[Lord Moylan (Con)]

That point seems to me to be covered by the general power of the assisted dying commissioner under Schedule 1 to do anything that is appropriate or necessary for carrying out his functions, so I do not think that is a reason for not using the word “sole” and giving some assurance to those of us who are concerned about creep.

[Lord Falconer of Thoroton (Lab)]

I think we will have to disagree on that. It is the normal way for that to be dealt with in drafting, so I am content with it. I am sorry to disagree with the noble Lord, but that is my view.

Amendments 135 and 436 from the noble Lord, Lord Frost, would place a duty on the assisted dying commissioner to check that all the paperwork is in order. Again, I have thought very carefully about that. The role of the commissioner, as far as the panel is concerned, is to pass the two reports on to the panel once he has received them from the doctor, for the panel then to consider whether that case is in order and meets the criteria—is the panel satisfied that there is no coercion and is it satisfied on capacity? I think it is neither appropriate nor necessary to add yet a further safeguard in that respect, because that is why the panel is there. It would lead to overlap and unnecessary delay without, in practice, any additional safeguard. The noble Lord, Lord Evans of Rainow, supported that. For the same reasons, I would reject his amendment.

The noble Baroness, Lady Finlay, made a point about conflicts of interest. There would obviously be a conflict of interest if the assisted dying commissioner had a financial or commercial interest in any sort of provider of assisted dying services. That would be covered by the principles to which the noble Baroness, Lady Levitt, referred in relation to the way in which the appointment would go. I completely agree with the point by the noble Baroness, Lady Finlay, but I do not think there is a need to put anything into the Bill in relation to it.

A number of noble Lords have referred to the risk of mission creep—the idea that an enthusiast or proponent of assisted dying would operate in an inappropriately biased way. All that the assisted dying commissioner can do is act in accordance with the terms of the Bill. As the noble Lord, Lord Carlile, said, if for example the commissioner stuffed a panel with people he knew would take a biased view, he would be acting both improperly and illegally under the terms of the Bill. As the noble Lord said—and I agree with this—Schedule 1 opens the door to every sort of judicial review if that were the position and people became concerned about it. That goes to the amendment from the noble Lord, Lord Wolfson, which would provide for complaints to be made to the Prime Minister. Of course you could make complaints to the Prime Minister, but you certainly would not need the Bill to make that possible; there would be political accountability for the conduct of the commissioner, because the Prime Minister has made the appointment. Equally, there would be legal accountability in the form to which the noble Lord, Lord Carlile, referred.

[Lord Hamilton of Epsom (Con)]

Given the noble and learned Lord’s encyclopaedic knowledge of the statute book, can he tell us what went wrong with the Abortion Bill, which morphed without parliamentary consent, much to the concern of its sponsor, Lord Steel.

[Lord Falconer of Thoroton (Lab)]

Would the noble Lord mind if I did not, as I think what one has to do is focus on this particular Bill?

[Baroness O'Loan (CB)]

It is all very well talking about access to judicial review when things go wrong, but the reality for the ordinary man in the street is that judicial review is largely out of the realm of possibility: it just costs too much. Therefore, we need to make sure that things are so laid down in the Bill that there do not have to be multiple requests for judicial review. For that reason, I ask the noble and learned Lord to consider this further.

[Lord Falconer of Thoroton (Lab)]

I could not agree more with the noble Baroness, Lady O’Loan. That is why, in addressing these issues, we have been very specific about what the voluntary assisted dying commissioner can do in both Clause 4 and the schedule. What is more, that is why we have such a limited panel that can be made for the voluntary assisted dying commissioner. It has to work, and that is why it has been drafted in this way. The noble Baroness is absolutely right that judicial review is an expensive process, and it provides a guardrail, but ultimately there must be sufficient detail in the Bill to give the public confidence that the system will work. That is why we have, for example, restricted it to a Supreme Court judge, a Court of Appeal judge or a High Court judge. We are absolutely on the same page on that.

I turn to the noble Lord, Lord Sandhurst. My understanding of his Amendment 430—although I may not be correct—is that, where the two doctors agree, the assisted dying commissioner, if he or she agrees, can then short-circuit the need to go to the panel. That is my understanding of the amendment, which is interesting. However, my anxiety is that we would then, in every single case, almost, be getting rid of the panel. The position would be that you only ever get to the panel if both doctors have agreed. The sponsors presented the Bill to this House on the basis that, in every case, the safeguard is—to shorten it—two doctors and a panel. So I respect the thinking, because it is trying to streamline the process, but I do not think that it is appropriate, and it would undermine the safeguards.

[Lord Sandhurst (Con)]

The noble and learned Lord is right. When I introduced the amendment, I did say that there might be problems with it, but I thought it was something that should be looked at.

[Lord Falconer of Thoroton (Lab)]

Yes, I understand that.

[Baroness Berridge (Con)]

I am grateful to the noble and learned Lord for his realistic acceptance of the difficulty of judicial review as a remedy for many people. I would be grateful if he could also reflect on the situation with family members: if the panel approves assisted dying, their remedy to challenge that is judicial review. We heard evidence in the Select Committee, particularly from Sir Nick Mostyn, that that is just fine. Many of us, particularly myself, do not feel that it is satisfactory for family members to have to resort to judicial review if they have evidence, for instance, that there has been coercion. Will the noble and learned Lord reflect on that, which may avoid further amendments later down the line?

[Lord Falconer of Thoroton (Lab)]

I will certainly reflect on that, and may I express my gratitude to the noble Baroness, Lady Berridge, for facilitating the meeting with Professor Ruck Keene? It was incredibly helpful, and I genuinely appreciate it. Yes, I will reflect on what the noble Baroness said. I suspect there will be a similar answer to the one I gave to the noble Baroness, Lady O’Loan: we have to be as specific as we possibly can in the Bill, because judicial review is difficult for normal people, particularly in those circumstances. That is why, whether it is a court system or any other system, we must try to make this as clear as possible in the Bill.

Amendment 146, in the name of the noble Baroness, Lady O’Loan, says that the assisted dying commissioner should be able to investigate patterns. In particular, she cites what may happen in relation to care homes. I agree that the assisted dying commissioner should have that ability. He does have that ability under Clause 49(1)(a), (b) and (c); so, for example, if he is concerned about a pattern developing in care homes, he already has the power to monitor that.

The noble Lord, Lord Morrow, asked whether there should be a further Equality Act assessment. I dealt with that last time and said I had looked carefully at what the former commissioner had said and I did not think that a further impact assessment was appropriate, because, if you constantly make particular points that are covered in general, you are never going to get to an end of it. I do not think that the points the commissioner raised were ones that had not already been considered in the impact assessment.

[Baroness O’Loan (CB)]

I accept that there is a general power in Clause 49 to look at what is happening in relation to the regime, but I say again that there is an issue raised by Amendment 146 which definitely requires further consideration. I ask the noble and learned Lord to reflect again not just on the monitoring of delivery of the service, but on the arrangements for the delivery of the assisted dying process in care homes, where people are vulnerable, isolated and largely unsupported in many cases. There is a very serious problem, given the remarks of Age UK, care homes, et cetera.

[Lord Falconer of Thoroton (Lab)]

I will certainly reflect on it, but the issue of somebody who is isolated and alone in a care home is why there are five steps before you get to assisted dying, and the question is whether the sequence of doctor number 1, doctor number 2, doctor number 1 again, the panel, doctor number 1 again is a sufficient safeguard. My own view is that it is a sufficient safeguard and it is particularly focused on protecting the vulnerable.

[Baroness O’Loan (CB)]

My Lords, may I just—

[Lord Falconer of Thoroton (Lab)]

I should get on. I apologise, but the noble Baroness has had a very fair crack at that particular whip.

I come to the question of the noble Baroness, Lady Maclean, which is: should there be a register of the interests of the assisted dying commissioner? I understand what motivates that. I do not think that that is necessary because, as my noble friend Lady Levitt said, that is something that would be dealt with by the normal process governing conflicts of interest. There would not necessarily be a record of it, but it would be something that would have to be disclosed before a decision was made.

The noble Baroness, Lady Grey-Thompson, raised various issues in relation to the appointments process, but I hope that I have dealt with them by referring to the process that would apply. I think I have dealt with all the other points, including the point from the noble Earl, Lord Howe, about Amendment 913A.

[Lord Harries of Pentregarth (CB)]

I am still genuinely not quite clear who the noble and learned Lord thinks the commissioner, and indeed this whole process, is ultimately accountable to. With the rejection of the amendment from the noble Baroness, Lady Cass, and various others, I am trying to work out who ultimately is going to monitor this if there is public concern about the law being interpreted much too loosely, or things are going wrong. Who is going to keep a permanent eye on what is happening?

[Lord Falconer of Thoroton (Lab)]

The nature of the appointment is that it is an appointment by the Prime Minister. He is politically accountable for the appointment. The assisted dying commissioner, like so many other appointments made by a Minister, has legal duties, but, if you are looking for political accountability, it is the person who is responsible for his or her appointment. That is the way that public appointments operate.

[Baroness Freeman of Steventon (CB)]

I am sorry, but the noble and learned Lord has not addressed Amendment 144A.

[Lord Falconer of Thoroton (Lab)]

I apologise. The noble Baroness, Lady Freeman, emphasised in her Amendment 144A the importance of providing impersonalised information and assistance in relation to reaching a structured decision. She speaks from considerable experience, and I express my gratitude to her for talking to me about it and providing me with real assistance.

That would have to be dealt with by codes of practice issued by the Secretary of State under Clause 39. If there were problems—for example, the codes of practice were thought not to be adequate or were giving rise to problems—it would be for the assisted dying commissioner, under Clause 49(1), to report or indicate that something was wrong. The points the noble Baroness makes are important and I apologise for not dealing with them.

[Baroness Coffey (Con)]

The noble and learned Lord did not speak at all to his Amendment 480 in this group. Is he planning to address it later in group 3? I am conscious that he did not particularly address my amendments, but I assume it is because he disagrees with them, which I understand. However, Amendment 480 has not been talked about at all. It is okay if he wants to address it in group 3.

[Lord Falconer of Thoroton (Lab)]

I apologise. I will talk about it in group 3.

[Baroness Cass (CB)]

Long speeches are unpopular at the best of times, but particularly as I now stand between noble Lords and lunch, so I will try not to make one. It has been a very useful group. We have had a lot of discussion about the appointment process, transparency, conflict of interest and how we ensure public confidence in the commissioner. I think we have reached a conclusion on that—one which may not satisfy everybody, but we have come to a place on it.

Beyond that, a lot of the concern has been about things that fall through the cracks, such as my noble friend Lady Freeman’s concerns about patient information, data, risks and patterns in care homes, and family involvement, which is important. My reflection is that I accept the noble and learned Lord’s view that we do not need to separate a delivery and a monitoring role, but it still seems as if the assisted dying commissioner, even acting with the greatest integrity, needs eyes in the back of his or her head to pick up on issues such as local fluctuations or other aspects of concern. I look forward to hearing about other ways in which things are going to be monitored carefully, whether by the CQC or NHS England, as the noble and learned Lord suggested, so that we can be reassured on those matters. With that, I beg leave to withdraw Amendment 122.

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Moved by

[Lord Falconer of Thoroton]

131A: Clause 4, page 2, line 29, at end insert—
“(3A) Before making an appointment under this section, the Prime Minister must consult the Welsh Ministers.”Member's explanatory statement
This amendment requires the Welsh Ministers to be consulted, before appointing a person as the Commissioner.

--- Later in debate ---

[Lord Deben (Con)]

My Lords, I did not intend to speak on this particular amendment until something happened at lunchtime. I have to apologise to the noble and learned Lord, because I am not sure that I can make a joke about it, as he has requested me to in any speech I make. The fact of the matter is that at lunchtime I discovered that my local health trust has withdrawn its payment to Marie Curie, which means that there will no longer be Marie Curie nurses helping people in the final months of their lives; that support has been withdrawn because of the tight budgets in the National Health Service. I am appalled that we are in that situation, but it reminds me very clearly of the fundamental problem of a single-issue Private Member’s Bill, because it asks us to consider something not as one of a series of priorities among which government has to make choices, but as something on its own. That inevitably is a real problem.

The second problem is that anyone who has been a Minister knows how the Treasury works. If you ask it to give you some money to spend and then say, “But we’re going to make these savings”, it always counts the spending and refuses to acknowledge the savings. That is a Treasury mechanism that we have all learned—and I see that a former Health Minister knows precisely what I mean.

The problem with this issue is precisely that: money will have to be spent, but the savings—let us leave aside whether this is a suitable balance—will certainly not be considered, which is why the Deputy Health Minister said there would have to be “reprioritisation”.

So I come to this Committee having been shocked at lunchtime. Perhaps the Chief Whip should not have allowed us off for lunch: then I would not have been able to see this. However, the truth is that I am shocked by the fact that one of the most important palliative care services is now going to be ceased for the part of the country in which I live. That therefore brings me back to the amendment. I think we have to say to ourselves, very clearly, that, if we are proposing to spend money on this, it is quite clear from the Government that that will mean “reprioritisation”, which actually means cutting other money in order to save enough to pay for this.

I hope the noble Baroness will not be upset by this, but I do not understand how the Government fail to do this: in all the advice they give us, they refuse to tell us how much they think this will cost. That is a duty of the Government. They should tell Parliament, if it is a Private Member’s Bill of this sort—I will give way.

[Lord Falconer of Thoroton (Lab)]

We produced an impact assessment of the Bill with detailed costings, provided by the health service, so to suggest to the Committee that the Government have not provided the costing is inaccurate.

[Lord Deben (Con)]

We have already told the noble and learned Lord what we think about the impact assessment. We have been asking for an updated impact assessment which takes into account the debates we have had and the assessments we have made. The Government have said they will not do that—that is what I am referring to. I want to see an absolutely up-to-date impact assessment based on the debates in which we have expressed and explained real issues which have not been raised before, so that we can, first, know how much it costs and, secondly, begin to ask ourselves, “Is this the priority?”

I will end on this. Is it a priority to provide people with the free chance to kill themselves and not provide people with Marie Curie nurses so they may live the end of their lives in a happier and better place? Anyone who suggests that we get that priority right by funding assisted suicide rather than Marie Curie nurses seems to me to be saying something that the public would not accept. One of the problems with this whole debate is that we have never been prepared to tell the public what the real effect of this is. Therefore, I very much support this amendment—not that I would normally support the kind of position my noble friend raises in his particular way, but he did it most elegantly. I support it entirely because, at long last, we are talking about the facts and what this really means for the people of Britain.

--- Later in debate ---

[Baroness Levitt (Lab)]

My Lords, I will speak only to the amendments about which the Government have significant operational workability concerns. Before I do so, I want to say a few words on the general points about funding raised by a number of noble Lords, including the noble Lord, Lord Harper, the noble Baronesses, Lady Fox and Lady Grey Thompson, and others.

I make it absolutely clear that I entirely understand the point that the noble Lord, Lord Deben, is making and why it might seem as though the choice is being restricted if you do not actually know the amounts involved, but I reiterate that it is for Parliament to decide whether this service should be provided and, if so, whether it should be publicly funded. If that decision is made, the Government will fund it. I am not evading the issue when I say that I simply cannot explain how that will be done, because that would be to put that ahead of Parliament’s own decision. We cannot possibly start, for example, putting aside a war chest for something that Parliament may decide that it does not want. As far as priorities are concerned, as I say, it is not a matter of evasion; it is a matter of principle.

It is also not right to assume that funding this, if that is the will of Parliament, will involve taking money away from other parts of the health service. That is not what the Government are saying; we are simply saying that the funding will be made available if that is what Parliament wants. My noble friend Lady Merron, the Health Minister, has written twice on this subject, and those letters are available in the Library for anybody who is interested. As for palliative care, there is an absolute commitment by the Government to increase funding for palliative care and make sure that palliative care is offered properly, irrespective of what happens in relation to this.

As for the noble Lord, Lord Deben, of course I am not upset by what he says about the impact assessment—as if I would ever be upset by anything that he says—but we are doing what is usual, which is to deliver the impact assessment at the outset and, as with other Bills, a further updated impact assessment will be provided following Royal Assent, if we get to that stage. There is a logic to this, because there are so many different elements to what has been debated in Committee that to provide a costing for each and every one would probably keep us here for as long as we are here debating all these amendments anyway. It simply cannot be done. It is not practical. I am not upset, but I am simply saying that we cannot do it and we will not do it until Royal Assent.

Turning to the amendments in the name of the noble Lord, Lord Moylan, these are collectively intended, as we have heard, to prevent the establishment and running of this service being publicly funded. Your Lordships may wish to note that, if passed, these amendments would create an internal inconsistency with Clause 41(5), which requires that the provision of voluntary assisted dying services must be provided free of charge.

Amendments 835 and 868, in the name of the noble Baroness, Lady Fraser, propose a delivery model whereby the Secretary of State must make regulations for the assisted dying service, which would be delivered only by private providers. The key workability risk here is that the new clause created by Amendment 835 would duplicate Clause 41, but with additional constraints, and that would create legal uncertainty, when the Act is looked at in the round, about the limits on the Government’s powers when commissioning a service. The Committee may also wish to note that this amendment may have implications for the devolution settlement, as Wales and the Welsh NHS trusts are implicitly included, which potentially constrains the powers for Wales in Clause 42.

[Lord Falconer of Thoroton (Lab)]

This group concerns the question of funding. First, the noble Lord, Lord Moylan, raised the question: should the people who benefit from this have to pay for it? Secondly, the amendments from the noble Baroness, Lady Fraser, raised the question of whether it should be free to the patient. Could it be provided by private providers? Separately, there were questions along the lines of: will this change the nature of the relationship between the doctor and the patient? Finally, there were questions over whether this might lead somebody to urge people to take an assisted death.

I start with the provisions of the Bill at the moment, which, subject to the amendments to Clause 41 that I propose, require that the integrated care board, or NHS England or the Secretary of State, commission the services. A separate provision, in Amendment 753A, makes provision that, in practice, they have to be free for the person getting them.

The principle that underlies that approach—my noble friend Lady Levitt is right and this is the choice that the Bill makes—is that it will be available free to somebody who wants it and who satisfies the conditions. The reason for that is that we do not want to create a two-tier system where you can have an assisted death only if you can afford to pay for it.

In evidence to the Commons Public Bill Committee, Dr Michael Mulholland, the honorary secretary of the Royal College of GPs, said:

“Whether it occurs in the NHS is not our decision, but we would be very concerned about health inequalities creeping into any part of the health service … If the Bill comes through, we will want to make sure that there is not a differential in who is able to access it”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 30/1/25; col. 278.]


The amendments of the noble Baroness, Lady Fraser, do not affect that. The amendments of the noble Lord, Lord Moylan, do, and it is for that reason that I oppose them.

I will first deal with the amendments of the noble Baroness, Lady Fraser, which would restrict the model that could be used to private providers only—albeit that she is not saying that it should not be free. I agree with what my noble friend Lady Levitt has said, to the effect that the way it is delivered should not be restricted. I would therefore not be in favour of the amendments of the noble Baroness, Lady Fraser, in that respect.

[Lord Harper (Con)]

Does the noble and learned Lord not see that the argument that he has just made in favour of having a fully funded assisted suicide service is exactly the mirror of the argument that I made on palliative care? The argument from the quotation that he gave is exactly the argument that I made. If you fully fund this proposal but you do not fully fund palliative care and make that universally available at high quality, you have an inequality where wealthier people can get palliative care and poorer people cannot. On previous occasions, the noble and learned Lord has made it quite clear that he is comfortable with those being reasons for people seeking an assisted death. I do not think that they are. You have to fund both services on an equal basis. Does he agree?

[Lord Falconer of Thoroton (Lab)]

The impact assessment suggests that in year 10, assuming the highest possible cost, it would cost £37 million in total to do assisted dying. This is not by reference to any savings and it includes not just the health elements but also the panel and the assisted dying commissioner. It is plain that palliative care should get as much funding as possible. It is patchy throughout the country and it needs more funding. For me, it is not right to delay the option of assisted dying, particularly when the amount of money that we are talking about to fund assisted dying is so much less than that amount of money, which I would fully support being provided as much as possible. I understand what the noble Lord, Lord Harper, is saying. I am fully behind him if he is saying, “Let’s all put our backs into getting as much money as possible for palliative care”. But I do not accept the argument that the inadequacy in some parts of the country of palliative care is a reason for delaying the assisted dying Bill.

[Baroness Finlay of Llandaff (CB)]

Just as a point of information, does the noble and learned Lord accept that there is evidence that if specialist palliative care was available across the country on an equal basis, that in itself would result in a saving of around £800 million a year, because patients would be getting better care and unnecessary investigations and so on would be avoided? So there is a cost transfer. The problem at the moment is that we have areas without services and therefore patients do not have choice. If we are talking about patient choice, there must be equipoise in that choice argument.

[Lord Falconer of Thoroton (Lab)]

I am absolutely sure that if there were proper specialist palliative care of the highest quality—we would hope that there would be—it would lead to savings. I honestly do not think that the £37 million cost is a reason for delaying this because it would in some way hold back the provision of better specialist palliative care, which is something that we are all in favour of.

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[Baroness O'Loan (CB)]

I am concerned about the figure of £37 million being articulated as the absolute cost of this service. I find it somewhat difficult to believe that it could be the cost. If we have regard to the costs of similar public organisations that are already set up, the running costs alone run into millions. We are going to be talking about a national service for England and Wales that, presumably, will be provided in the patient’s location—the death will take place not where we want it but where they want it—and therefore there will be a lot of costs. I firmly believe that they have not been costed into the figures that the noble and learned Lord and the Minister have given us.

When I go shopping, I see whether I can afford what I want to buy. Yet we, as a Parliament, are being asked to decide whether we want to do this. One of the things that we should responsibly take into account is cost, otherwise we would not have had an impact assessment. We are being asked to consider it on the basis that it will cost £37 million and that that is peanuts—well, I wish I had £37 million pounds put into palliative care now. This is not an accurate figure.

This is the only point that I want to make. Can the noble and learned Lord put his hand on his heart and say to me that he really believes that this is what the service will cost, given the number of people who may avail of it and the number of safeguards that need to be introduced into the Bill because of its very significant flaws?

[Lord Falconer of Thoroton (Lab)]

First, I am grateful to the noble Baroness, Lady O’Loan, for her speech, rather than a question clarifying something. Secondly, as I have said, the figure of £37 million has been provided in the impact assessment for the 10th year. I note the points that the noble Baroness has made. Maybe the right course for her is to send a detailed letter raising the questions with the Department of Health and Social Care and the Ministry of Justice, because it is their assessment—and I do not dissent from it.

[The Archbishop of York]

I entirely accept that those who are proposing the Bill do not propose it for the reason of trying to save money. I also entirely accept the desire from everyone in this House for better-funded palliative care. However, I need something to be explained. Taken that palliative care is inadequate and underfunded, and taken that there are huge regional variations, what I do not understand is the noble and learned Lord’s confidence that this will not lead to coercion of vulnerable people in places where palliative care is not available and cannot be afforded, which will lead to unintended consequences. I entirely accept that he does not want those consequences either, but I ask him to give me some confidence, if he can, that this will not follow.

[Lord Falconer of Thoroton (Lab)]

I will try to give the most reverend Primate confidence. First, decisions about treatment at the moment frequently have to be made in the context of what everybody in this Committee would think was inadequate palliative care. There is scope for coercion there with no safeguards. Secondly, people have the ability to go abroad to get an assisted death, and there is scope for coercion there. In both those situations, there are no safeguards whatever. The landscape in which those choices are made, whether about continuing other treatment or about going to Switzerland, has absolutely no protections whatever. This Bill provides five levels of protection. I am completely satisfied that this is a safer system than the current law, and I very much hope that gives the most reverend Primate confidence that the Bill is the right thing to do.

On the funding of palliative care, I very much hope that the Government and other people will provide more money for palliative care. The experience in many countries is that the introduction of an assisted dying Bill leads to an increase in the amount of palliative care, because people debate and think about how you die. I hope those things put the most reverend Primate’s mind at rest. The risk for coercion is already there, and this provides safeguards. I hope the introduction of the Bill will produce more money for palliative care, but unfortunately I cannot give the most reverend Primate any guarantees of that.

[Lord Moylan (Con)]

My Lords, I shall be very brief. I am grateful to all the noble Lords who spoke in this short and valuable debate. I tabled these amendments in the first place to give the noble and learned Lord the opportunity to explain why this proposed service should be funded by the taxpayer—the unwilling taxpayer, it might be said, in the case of those who have a principled objection to it. I listened very carefully to what he said, and he gave one reason only: failure to make it available for free would contribute to an increase in health inequalities. That proposition rests entirely on the assumption that this is a health treatment. It is not; it is poisoning people. It is completely unpersuasive that this should be justified as contributing to health inequalities or otherwise. For that reason, I would certainly want to bring these amendments back on Report and invite the House to take the view that we should not fund this from public resources. In the meantime, however, I beg leave to withdraw the amendment.

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[Baroness Finlay of Llandaff (CB)]

May I intervene on that, given that my amendment is being questioned? Let me explain. When looking after people who are parents, a conversation is often about what the children know. Telling the children about someone’s impending death is extremely difficult for most parents. Usually, it is because the person who is ill wishes to protect those children; they think that, by not telling them and preparing them, they are somehow protecting them. The way children are informed needs to be age appropriate and appropriate to where that child is.

I do not suggest in this amendment that it should be an agent of the state. The amendment refers to making

“adequate arrangements for another person”.

That could be anybody. It is about asking whether they have somebody who will inform those children—or not—about the death. As for bereavement support, it might simply be about telling them in person and letting them talk about it for an hour over a cup of tea, or it might be much longer, depending on the needs of the individual—because bereavement is a very individual thing as well.

I am concerned that we could legislate and somehow believe that, by someone having an assisted death, rather than a death for which there has been preparation, the impact on any children in a family will be less, because the evidence is that it will not.

[Lord Falconer of Thoroton (Lab)]

I do not know whether I am allowed to intervene, because I do not know whether the noble Baroness is intervening or speaking to her amendment.

[Baroness Finlay of Llandaff (CB)]

I am coming to my amendments later.

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[Baroness Berridge (Con)]

My Lords, I will speak to Amendment 462A in my name, which outlines that, before approving any application, the panel must be satisfied that the person requesting assistance has had the requisite assistance from the local authority in relation to the delivery of statutory services.

The amendment deals with the problem caused by the basic principles of the Bill, which is based on a very narrow concept of procedural autonomy. If it is only this that matters, then for the panel, as long as they can tick the boxes saying there is no coercion or pressure, and that the person has capacity et cetera, then the application is approved. It is approved under the current drafting of the Bill even if the panel believes and has evidence that the person is applying because, for instance, their housing is inadequate, the care package fell apart, they are actually grieving for other relatives or they are poor.

This amendment would mean that, before any such approval is made by the panel, it must be satisfied that the local authority has received a referral to look at the statutory provision of services for the person. In relation to this, I am grateful that the noble and learned Lord enjoyed his meeting with Professor Alex Ruck Keene, because he has put this a number of times in written and oral evidence about the concept of the panel and its powers, and it is worth quoting:

“You have to think … carefully about what purpose any … of this oversight is actually serving societally, if the oversight panel, whether that be a judge or a panel, cannot decline to approve an application if it considers that the reason the individual is seeking assistance in dying is because of service provision failures by the statutory bodies responsible for meeting their health and social care needs”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 28/1/25; col. 96.]


I know the noble and learned Lord has answered many questions and commented about the access to this service for the poor. This is a different question. I am not saying that poor people should not be able to apply. I distinguish that from a situation where the panel has concluded on the evidence that, although the person satisfies all the tests under the Act, the evidence is that they are before the panel because they are poor. There are many instances of this from other jurisdictions, for instance, particularly in relation to homelessness. People have come forward for MAID in Canada because they are homeless, which is available because it is not just for terminal illness in Canada.

In relation to the amendment, it may be that the drafting needs to be different; it might be that this needs to be done not just before the provision but can be twin tracked, so that you approve the application but at the same time make sure the local authority deals with the provision of services. I hope the noble and learned Lord will take seriously this additional power for the panel to ensure that people are there for the reason that they are exercising their autonomy in relation to the Act and not pressured because of lack of statutory services.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness refers to it as an additional power but, as I understand the amendment, it says that this is an additional requirement for a certificate of eligibility.

[Baroness Berridge (Con)]

I am grateful to the noble and learned Lord. I accept that drafting changes might be needed between now—

[Lord Falconer of Thoroton (Lab)]

The noble Baroness says, “drafting changes”, but there is a fundamental difference between saying that this is an additional condition that the panel has to be satisfied of and giving it a power. I understand the noble Baroness’s amendment to be saying that an additional requirement needs to be satisfied.

[Baroness Berridge (Con)]

When I mention drafting changes, I mean in relation to the timing of this. As drafted, it would need to be done before the application is granted, and it may be that the requirement to go to the local authority could be at the same time as having approved it, not before. But, yes, this would be an additional requirement on the panel.

I hope the noble and learned Lord the sponsor or the noble Baroness, Lady Finlay, can help with my second point on the principle of the Bill. The noble Baroness, Lady Hayter, referred to the situation based on autonomy: the individual wants to do this and does not want to tell relatives. If we are strict purists about that—we had evidence on this at the Select Committee—then with this Bill there could be a situation where the first time anyone hears about the death is when the medical examiner telephones a relative.

I have tabled amendments in a different group on a requirement to nominate next of kin who are over the age of 18. I think it would be useful for the Committee to know what the situation is if someone acts completely autonomously like this and the body is there. Does the noble and learned Lord the sponsor need to bolt on a provision so that there is a public health burial? That is the continuation of the logic of this that you can do this alone, with no one in your life knowing about it. Therefore, to exercise that autonomy fully, there would need to be a public health burial, with everything done before anyone in the family knows. That is a conceptual difference. The noble and learned Lord and I spoke about this in a meeting in relation to what the law is, and it would be good for him to clarify the situation. Can the medical examiner not call anybody and go forward with a public health burial?

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In the case of many suicides, the revelation—being seen—is a plea for help from those who love you most. It would take an extraordinary perversity to refuse such an amendment. That would be to ignore an opportunity to prevent perhaps the most terrible suicide of all—the deliberate plan to kill yourself through a lethal substance, enabled and supported by the state. I might add that it will be supported with all the bureaucratic paraphernalia of permission and enforcement and funded, as we have repeated in this and earlier debates, by the taxpayer. It would ignore the impact on those on whom you have depended in one way or another in your life and on whom you may still depend.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness, Lady Lawlor, will know that there are quite a lot of cases at the moment where the first that somebody hears of the suicide of someone they love is when they are told about their death. I have two examples in mind. One is Mr Paul Blomfield, who described his father hanging himself and not involving him because he feared that he might be investigated by the police. The other is the wife of Stuart Broad’s father, Chris Broad, who hoarded pills and, as a result of her not wishing to involve her husband, the first he heard of it was when an email came through from her. What does the noble Baroness say to those people under the current law?

[Baroness Lawlor (Con)]

We are proposing and debating a piece of legislation at this moment. We are concerned about the safeguards in the current proposed piece of legislation. The noble Baroness, Lady Gray of Tottenham, has proposed that the reviewing panel must raise with the person considering assisted suicide whether they have discussed it with their nearest and dearest. That is a different matter from what the noble and learned Lord has raised. We are discussing a piece of proposed legislation and I am discussing an amendment proposed by another noble Lord.

It is very important for those on whom we have depended and may still depend that we form a society and, as human beings, give support and love to one another—a mother or father who wishes only to support their child, perhaps terminally ill, to live their life as best they can; a daughter, son or sibling supporting their loved parents, sister or brother; or a spouse or best friend.

I do not agree with the premise of the Bill that we are autonomous human beings to dispose of ourselves just as we wish. Whatever freedom we have as human beings is rooted in a network of social relations and responsibilities, especially to our kith and kin. We therefore need to do whatever is possible to ensure that a person’s ultimate decision to end their own life is taken within a familial and social context. This amendment, which I support, promotes that end.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

Perhaps the noble Baroness might be relieved to note that I do not intend to move my amendment. I would like to speak to it now, but I will not be moving it.

Routinely, when you go into hospital, you are asked who your next of kin is. That is a routine question and it is entered in your medical record. That person has no legal status in terms of making medical decisions, although they may be consulted if a best-interest decision has to be taken. However, if you die, that will be the person the ward will phone to say that you are dead and your body is going to be moved to the mortuary, and that is the contact number that will go to the medical examiner to phone you later, which I think is the point the noble Baroness, Lady Berridge, was trying to extract.

It was helpful that the noble and learned Lord, Lord Falconer, described the shock of discovery of a death that you did not know about. That shock has been described by relatives who suddenly discovered that their parent had died by some form of assisted suicide or euthanasia when they had not known about it beforehand. That is documented.

It is also worth remembering that there is no evidence that suicide rates fall when these types of assisted death services come into play, but there is evidence that when people get the care they need, suicidality—that is, thinking about ending your life early—falls. So people need to have care.

I shall speak to my amendments now.

[Lord Falconer of Thoroton (Lab)]

Is the noble Baroness speaking to Amendment 459?

[Baroness Finlay of Llandaff (CB)]

I have already spoken to Amendment 459 and am finishing off speaking to it.

I will move on to Amendments 475 and 939 in Schedule 2. There is concern over the operation of the panels and safeguarding responsibilities, just in terms of the information that comes forward. Someone with relevant information would be allowed to come forward to the panel with appropriate evidence and be afforded whistleblower protection, in the type of situation described by the noble Baroness, Lady Berger, where there is a new person on the scene who others may feel has malintent, for one reason or another.

In the Bill’s current model, medical assessments that have previously gone to the panel will not be monitored contemporaneously. They could be poorly reported, they will not be reviewed and this could hide errors, unconscious bias and discrimination. The role of the panel will be to issue a certificate. In Amendment 493, I have suggested that the certificate should have validity for six months and, in the event that the person has a longer prognosis—we have many examples of that—it is renewable rather than having to start the process again because they have outlived their prognosis.

However, the appeal mechanism to a panel seems to be one-sided. The person can appeal against a refusal to give them a certificate, but there does not seem to be a mechanism for appeal. My Amendment 499 seeks to allow information to be brought to the panel that it may not have known about when it gave a certificate. This may relate to domestic abuse that had been hidden, to coercion or pressure, to any information that the diagnosis may have been wrong, to recent emotional or psychological trauma, or to depression or metabolic disturbance which might have impaired capacity.

Amendment 932 is a very practical one concerning the provision and distribution of panels around England and Wales. It has not been made clear how many panels there would be or that there needs to be fair distribution. I have suggested a minimum of three per region in England and a minimum of three in Wales. For the geography, topography and population, I think three would work for Wales. However, areas of England with high population density, or very large rural areas, would probably need more to enable the panel to visit the patient face to face for an assessment. It is completely inappropriate to expect a patient to go to see a panel when they are already ill or to rely on remote consultation rather than having the ability for face-to-face discussion. Those face-to-face discussions must be subject to the confidentiality that you would expect in any medical consultation. I hope that we will not be suggesting that this would be publicly available.

I suggest that, as has been said, these panels came in two-thirds of the way through and a panel can take testimony from others. However, in terms of getting information about the person, as the Minister of State for Courts and Legal Services said in Committee on this Bill:

“It is not a court or a tribunal … They can make the request, but they cannot compel someone to attend”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 12/3/25; col. 1102.]

--- Later in debate ---

[Lord Harper (Con)]

That is very helpful. It enables me to make this point, because this is where we have a disagreement. It gives the sponsor of the Bill the opportunity to set out why the Bill is drafted as it is. I will set out why I think my noble friend’s amendment is broadly right, but perhaps there is a comparison with what we already do in similar cases. That may give the noble Lord, Lord Carlile, the opportunity—he may not wish to say so—for another “told you so” moment, as it is a judicial comparison.

The presumption in the Bill is that panels will do the referrals in public. There is a “subject to” on that: the chair of the panel can decide to do it in private if they feel that is appropriate. I accept that there is a balance to strike because, for obvious reasons, these panels are making decisions about personal, private matters. It is also right that there is some transparency. My noble friend Lord Jackson’s amendment would give quite a big window, 28 days, to publish the notice of the panel meeting. It would also include the name of the person.

The comparison I looked at, which I thought was a reasonable one, was what the Court of Protection does. It makes decision about sensitive financial and welfare matters. It used to be the case that the Court of Protection’s presumption was to sit in private and not hear cases in public. That has changed over time. The presumption now is that cases are heard in public. Again, my understanding is that there is the ability for the judge presiding on those cases to decide for them to be in private if that is felt necessary. Even when they are in private, I understand, members of the public can make applications to go and listen to those cases. I think that is all right and proper. That appears, I presume, to be where—the noble and learned Lord, Lord Falconer, is nodding.

[Lord Falconer of Thoroton (Lab)]

This is an important issue. Let me say what I think the purpose of this is, so that it can be properly debated. The norm for the panel—the noble Lord, Lord Harper, is right—is to sit in public, but it is such a thing that it should be determined by the patient. If the patient says that he or she wants it in private, and they very regularly will, the chair can say, “Okay, it’s in private”. The expectation is that it would normally be in private if the person asks. However, there is still a discretion for the chair. It is not like the Court of Protection where the judge is making a decision in a much wider public interest. The reason it is drafted like this is that there needs to be some transparency but, if the person wants it in private, they should generally be entitled to that because it is so personal.

[Lord Harper (Con)]

That is helpful in one sense because it is helpful to have fleshed out the noble and learned Lord’s intention. It is not helpful in the sense that he has made the Bill less attractive to me than I thought it was. I thought the presumption was more that it would be in public.

[Lord Falconer of Thoroton (Lab)]

It is very important that the noble Lord knows.

[Lord Harper (Con)]

I do. The reason why I partly agree with my noble friend Lord Jackson is that I had a look at what the Court of Protection does in terms of publicity—the bit that the noble Baroness, Lady Hayter, objected to. It publishes hearings in advance—not 28 days—but it does not publish the full name of the individual. It publishes initials and what the case is about: the broad category of the decision. That strikes me as quite a good balance, which provides transparency but maybe avoids people coming to “watch a spectacle”, to quote the concern of the noble Baroness, Lady Hayter.

However, there is some necessity for it to be in public. The reason for that is also set out in the Bill, which says the panels

“must hear from, and may question, the co-ordinating doctor … must (subject to subsection (6)) hear from … the person to whom the referral relates”.

At this point, I agree with the noble Baroness, Lady Berger. That should absolutely be a must; there should not be an exception. If it is the case, as I understand from the appearance of the noble Lord with me on a media programme, that the exception is designed for cases where the person’s medical situation is very severe, they should not necessarily have to come to the panel, but at least one member of the panel should absolutely still have to go and talk to them. It really should not be okay for the panel to authorise somebody to have an assisted suicide without ever having spoken to the person concerned.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 13th March 2026 Lords Chamber

[Baroness Levitt (Lab)]

I am going to have to write to the noble Baroness about this, because I do not think I can answer it. My noble friend the sponsor will deal with the question of panels. If this question is actually about the assistance given by the Government, I refer to my previous answers, but I will write to the noble Baroness on her specific point.

[Lord Falconer of Thoroton (Lab)]

My Lords, in the course of this debate, the noble Baroness, Lady Coffey, referred movingly to the death of her parents. I pay tribute to her courage and her contribution.

I will deal with the groups of amendments in themes. First, I will deal with appointments to the panels. The noble Lord, Lord Murray of Blidworth, through his Amendment 925A, said that there should be a proper appointments procedure. I agree with him that there should be a proper appointments procedure. The Bill currently places the obligation of the appointment of panel members on the voluntary assisted dying commissioner. That is in Clause 4(4)(b) and in paragraph 2 of Schedule 2. I believe that that is adequate. The voluntary assisted dying commissioner must have a proper process. I have faith that he will do that, and the law will require him to do so.

The noble Lord, Lord Murray, also proposes that the Judicial Appointments Commission make the legal appointments. Remember that one of each of the panels would have to be either a judge or King’s Counsel. I am not in favour of that. My noble friend Lady Levitt indicated that there were problems with that, but I have a more principled objection: we are dealing here not with judges but with members of a particular panel, so I do not think that this is either appropriate or necessary.

--- Later in debate ---

[Baroness Coffey (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Can I just finish so that questions can be asked at the end? The noble Baroness, Lady Coffey, tabled Amendment 921ZB about King’s Counsel. The choice of who should be within the legal grouping is for the sponsors, not the Government. My noble friend Lady Levitt is right when she says that it is a question for me, not the Government. The Government are not saying that it is unworkable. They are saying that it is for the sponsor to decide. The choice of King’s Counsel and specified judges or former judges is to provide a wide enough pool from which to draw legal advisers.

As far as King’s Counsel are concerned, we think that by becoming King’s Counsel they have proved that they have sufficient quality to be the chair of such a panel. It is intended to mean King’s Counsel from England and Wales. I do not think it allows for people from other jurisdictions, but I will check, and if it does allow for other jurisdictions, I will restrict it to England and Wales because that is the intention.

In her Amendment 932A the noble Baroness, Lady Coffey, suggests that it should not necessarily be the lawyer who chairs the panel. The reason why the lawyer is put in the driving seat as the chair is because the panel has to comply with the duties imposed on it by the statute. Lawyers are certainly not necessarily the best chairs, but putting a lawyer in the chair will make sure that the panel focuses on its legal requirements. Those are my limited comments on the whole thing. The noble Baroness, Lady Coffey, had a question for me.

[Baroness Coffey (Con)]

One of my questions has been answered by the noble and learned Lord in his comments, but I want to briefly go back to Amendment 483C. The amendment is about pre-recorded audio or video material for the purposes of subsection (4). The noble and learned Lord has said that if a co-ordinating doctor is off ill, there are other provisions through medical exceptions. There is also provision in the Bill for the co-ordinating doctor to delegate any of their functions, but I am going back to the concept. For someone who is near the end of their life, why is it that any other doctor, witness or proxy should be allowed to have pre-recorded audio or video material? I want to get an understanding of that.

Separately, I think there was a slip of the tongue earlier by the noble and learned Lord. He said that the default was that the panel would be expected to sit in private but that there was then allowability for it to sit in public. I know he did not mean that, and he later said that the default was to sit in public. I want to clarify something about Amendment 933A. My amendment suggests that the only bit in private should be the interaction with the applicant. Could he explain why, if somebody has requested for that to be in private, all the other interaction should not continue to be in public?

[Lord Falconer of Thoroton (Lab)]

On the noble Baroness’s first question, Clause 17(5) says that:

“Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4).”


Subsection (4) relates to all of the material that the panel is dealing with. Subsection (5) is saying that the panel can use pre-recorded audio material if it thinks it is appropriate. I think it should be given that direction—I cannot see any reason why the panel should be restricted in relation to that.

Turning to the privacy point, paragraph 6 of Schedule 2 says that:

“Panels are to determine referrals in public”—


so the default is that it is in public, not private—but that

“this is subject to sub-paragraph (2)”,

which says that a panel can sit in private if that is what the person wants. The question from the noble Baroness was, basically, why should everything then be in private. It is because everything is about the patient. The whole thing is about the patient. If I want the circumstances of my illness and why I want an assisted death to be private, I should have that option. It is unrealistic to say that we can chop this up into the bits that are about the patient and the bits that are not.

[Baroness Berridge (Con)]

The noble and learned Lord is correct that the amendment refers to the wrong person at the local authority. However, the substance of what I said two weeks ago about Amendment 462A is this: does not the panel need a power to ensure it can ask a local authority to meet unmet needs of the person in front of it, such as if their care package has fallen apart or there is a problem with their benefits? At the moment, it has no power to do anything other than approve, if the boxes are ticked. I am not saying that poor people should not apply, but I am asking the noble and learned Lord whether the panel should not have a power to ensure those needs are met when it has that evidence in front of it.

[Lord Falconer of Thoroton (Lab)]

The panel has the power. Clause 17(4) says that the panel

“may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.”

That power would include a power to ask the local authority to provide any information it wants.

[Baroness Fox of Buckley (Non-Afl)]

I thank the noble and learned Lord for a comprehensive and useful set of answers. I asked a rather more banal question—it was a long time ago—about workforce challenges. What if the social workers or the psychiatrists cannot be found? We are already acutely short of psychiatrists and social workers in general, and that is problematic in particular geographic areas. Could the noble and learned Lord comment on what will happen if the legal expertise, social workers or psychiatrists are not available in one part of the country? Will it be a postcode lottery?

My second question is this. Has the noble and learned Lord consulted the likes of the Royal College of Psychiatrists and the British Association of Social Workers about what the Bill will do to workforce pressures? It seems to me that it will affect workability. If these panels are so important and there are not enough people to sit on them, I am worried that there will be a watering-down, with the grabbing of any old social worker who wanders past. Maybe the noble and learned Lord could clarify that.

[Lord Falconer of Thoroton (Lab)]

If there are not enough people with the requisite expertise to people the panels then there will not be panels to do the job. That is why the broad categories have been adopted in the Bill. The Royal College of Psychiatrists has expressed views in relation to this, as has the British Association of Social Workers. However, it is necessary for us to find people to do this process, because the workability of the scheme depends on it, and we believe it is possible to do that. We recognise the concerns that have been expressed, including by the noble Baroness, who is right to say that if we do not have people who can people the panels then we cannot do the process.

On the broader issue of what happens if we have people in one part of the country but not another, it will be for the voluntary assisted dying commissioner to ensure that, when a panel is required, it can be provided.

[Baroness Berger (Lab)]

I have listened closely to all of my noble and learned friend’s responses and remarks on this sizeable group of amendments—by my count, there are 105 amendments. While a handful have been presented by the sponsor, my noble and learned friend, the overwhelming majority have been put forward by noble Lords on all sides of the Committee, largely informed by the evidence that we heard at the Select Committee and by representations made by professional bodies and medical colleges outside of this place that wish us to improve the Bill. That is the job we were tasked to do by the other place and by our colleagues.

I have listened closely to every single word of my noble and learned friend’s response and heard every reason why every single one of these amendments should not be accepted. I did not hear what could come forward to make the changes that people think should be made to this Bill to make it safe, particularly for vulnerable groups, and to ensure we do not see coercion. Reflecting on his response, does my noble and learned friend intend at a future moment to come forward with anything that would put in the Bill things that would make the material differences that are the reason and impetus behind noble Lords putting forward these amendments?

[Lord Falconer of Thoroton (Lab)]

I have thought very carefully about the amendments we have gone through. I am sure they are all based on attempts to improve aspects of the process, such as the appointment of the panels, how the panels operate and the privacy issues. I should say that very considerable thought went into those issues before the Bill was drafted and as it went through the other place. I have given detailed reasons as to why I think the amendments we have debated would not really improve the position. For those reasons, after giving it considerable thought, I think that the Bill probably reached a better conclusion on, for example, the “must” and “may” issue that the noble Baroness raised and the need for special extra expertise. I have given it careful thought, but I do not think any of the amendments we have gone through would improve the Bill.

[Lord Harper (Con)]

I want to pick up a point made by the noble Baroness, Lady Berger, and the noble and learned Lord’s response to it. There are two aspects to what she said: whether the noble and learned Lord thought that any of the specific amendments might need bringing forward in a different form, and whether he thinks any of the issues raised, or concerns expressed, by any of the professional organisations that gave evidence raise any issues at all that he thinks need improving in the Bill, even if he thinks none of the amendments is acceptable. Does he think that all of those professional bodies’ concerns, and the evidence they gave about them, are misplaced?

[Lord Falconer of Thoroton (Lab)]

Professional bodies have raised a whole range of concerns. That has informed the drafting of the Bill, and certain changes have been made in the light of a variety of those concerns. I certainly am not saying that we know better on everything than the royal colleges. Their thoughts since the Bill has been published have been taken into account.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I will now speak to this rather large group of amendments, many of which were simply consequential, so I have withdrawn those to focus the debate. I ask noble Lords who may have questions to kindly allow me to explain the whole process rather than interrupting the sequence.

We took extensive evidence in our Select Committee and had many briefings critical of the panel process as written in the Bill. The Royal College of General Practitioners clearly stated that any legislation must ensure that:

“Any assisted dying service should be seen as a standalone … service … and … not be deemed core GP work”.


It is clear that:

“Any assisted dying service would need to be separately and adequately resourced and … not, in any way, result in a de-prioritisation of core general practice, or palliative care services”.


The promoters of the Bill themselves have said that the voluntary assisted dying service must be clearly defined and not complicated. The model proposed here would meet those essential criteria and improve safety, providing legitimacy with an expert multidisciplinary panel. Bureaucracy is simplified; it avoids burdening family or treating for clinicians, and it provides statutory separation between assessment and the process of causing death.

The effect of the scheme is to provide clarity by strengthening the process so the request goes directly through a genuinely multidisciplinary panel involving rigorous assessment, strong conflict of interest rules, clear statutory guidelines and clear norms for the collection of data—and, in the event of doubt, there is potential court involvement. This creates a higher level of professionalism and greater legitimacy for the person. There is also a clear framework for the panel procedure. Unlike the proposed ADR panels that we previously debated in the Bill, these panels are genuinely multidisciplinary across relevant specialties. The major effect of this is to remove individual doctors assessing in isolation and the risk of “doctor shopping”. There is also a new scheme for licensing and regulating assisted death services, as well as strict regulation of the lethal substances used to bring about an assisted death. This would decrease the risk of dispensing errors, as the process of dispensing approved lethal substances is closely monitored.

These amendments move the provision of accurate information to the patient and the assessment of eligibility up front in the Bill. The assessment is all undertaken by a defined group with expertise across different disciplines. Clinicians looking after the patient, irrespective of whether they support or do not support the provision of assisted dying, would continue with their duty of care to the patient and family throughout the process. Thus, the patient would continue to have their usual clinicians look after them, as always, while in parallel they could be assessed for eligibility against the criteria to be established in a statutory code of practice.

Let me explain: Amendment 143 would require the independent commissioner to support the new multidisciplinary panel workings, retain records for at least 10 years, support research and report to Parliament. Amendment 266 would ensure the panel members’ independence. Amendment 192 would signpost the person to the panel, because an assisted death is not a medical treatment. The person can obtain accurate, up-to-date information including, in Amendment 232, how to initiate the process.

Amendments 333 and 334 describe the panel’s make-up and its process. The panel would have a lawyer, a social worker or psychologist, a specialist in end-of-life care—all of whom would have at least 10 years’ clinical experience—and an administrator, plus a consultant specialist in the disease of the person and, if required, the option to co-opt up to seven members. Their statutory duties relate to licensing, or declining, the provision of lethal drugs or poisonous substances. They can refer to the High Court if in doubt. Amendment 233 would clarify that two panel members conducting a documented hearing must go to the patient.

The proposed new clause in Amendment 615 explains how the assisted dying service that comes into operation when a person’s assisted death has been approved would execute its functions in complying with a person’s wishes, including the safe transport of dispensed substances. Amendment 551 describes a neutral professional of experience who, once an assisted death was approved, could help the patient by ensuring that all correct processes were followed, deal with complications, collect all data and notify relevant persons of the death. This would avoid the difficulty of a doctor being tied up waiting for the person to die after ingesting the lethal drugs. The Oregon data shows that sometimes this can be prolonged.

Amendments 552 and 702 would determine a designated regional pharmacy to link to the assisted dying service to improve safety in the dispensing and transport of lethal drugs or other poisons and the disposal of any unused substances. Amendment 552A in the name of my noble friend Lady Hollins improves my Amendment 552 by seeking to ensure compliance with regulatory safeguards.

Amendments 704 to 706 relate to the limits on regulation-making powers, and Amendment 707 covers devices. We do not know what these devices are, but they are referred to in the Bill. Amendment 698 would require all lethal substances to be compliant with MHRA regulations and the Misuse of Drugs Act. Amendments 556 and 643 would require the GP to be notified of the process. Amendment 654 would ensure completeness. Amendments 667, 760, 761 and 767 would make it clear that the involvement of a health or social care professional in the assisted death service was separate from their health or social care employment and that their employer must know of their involvement. This is a separate service that must not jeopardise the care of other patients.

However, Amendment 710 to the clause on the regulation of approved substances would give effect to the recommendation of the Delegated Powers and Regulatory Reform Committee, on which I sit—although I should say that I am not speaking on behalf of the committee—to remove the most sweeping of the Henry VIII powers in the Bill. I do not consider the amendment of the noble and learned Lord, the sponsor, to my amendment to be adequate. Others may wish to comment.

All my remaining 56 amendments in this group are consequential and have been written to ensure that there is clarity throughout the Bill as to the effect of these changes. This is not vexatious.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble Baroness for describing her scheme. Could she explain to the House what eligibility requirements would need to be satisfied in order to give a certificate and where one can find them in her amendments? Secondly, could she explain what the role of the High Court is?

[Baroness Finlay of Llandaff (CB)]

My Lords, first, I asked noble Lords to wait until I had completed. Secondly, I apologise to the House if I cough and my voice gives up in the process—so be it. Thirdly, if these amendments were all written into the Bill, which is what I am trying to do, the noble and learned Lord would see that the eligibility criteria would remain as he has put them in the Bill.

Let me summarise. A person wanting to seek an assisted death would be signposted to the panel for their area. The panel would give them accurate information and, if they wished to apply, they would be helped to ask for their clinical record to be available to the panel to assess all information. Normally, two panel members would meet the person, without pressure, listen to them, assess capacity and, if they agreed, advise the panel, who would decide whether to issue a licence to end life. The navigator would then make sure that lethal drugs were available to the person at the time of the person’s choosing, collect them from the designated pharmacy and deliver and oversee the whole process, documenting it carefully. If the person changed their mind, unused drugs would be removed by the navigator. If the person died, the navigator would verify, not certify, death and ensure that all who needed to be informed were duly and sensitively informed of the death. But throughout the initial information-seeking and assessment, the period of reflection and the assisted death being arranged, the person’s health and social care would continue in parallel—it would not be diverted away from its core role in care.

Let me illustrate. Thirty-six years ago, a GP referred a distraught young man whose prognosis, as estimated by the GP, a surgeon and an oncologist, was about three months. The GP said, “He is the most clear-cut case for euthanasia I have ever seen”. The man was in total pain and desperate for lethal drugs, and, with his youngest child only six weeks old, his care was challenging, particularly in the first fortnight. Eleven years after that visit, and after many periods of complex care, David phoned me. His beautiful young wife was dying of advanced cancer. By then a wheelchair user, he and his three children were with her in the hospice as she died.

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[Baroness Blake of Leeds (Lab)]

I would be happy to write to the noble Baronesses with clarification on that point; I thank them for their interventions.

As I was saying, Amendment 713A appears to introduce a parallel approvals regime, but it does not specify how that should relate to the Secretary of State’s separate power under Clause 27 to specify the list of approved substances. This could lead to operational uncertainty. Although the amendment could be delivered, establishing a dedicated regulatory pathway would likely require adjustments to the MHRA’s remit and internal processes.

I turn finally to Amendments 887A and 888A from the noble Lord, Lord Empey, which would amend Clause 57 by removing the reference to Northern Ireland. This would mean that regulations made under Clause 37 would not extend to or apply in Northern Ireland. As medicines regulations are UK-wide, should this amendment be accepted, it might create legislative divergence across the UK. This does not mean that assisted dying would be legalised in Northern Ireland.

As noble Lords will be aware, many of these amendments have not had technical drafting support from officials. If your Lordships support these amendments, the Government will need to revisit the drafting of amendments and the Bill as a whole to ensure that they are workable and coherent, both internally and with the wider statute book.

[Lord Falconer of Thoroton (Lab)]

My Lords, I am grateful to the noble Lords who have participated in this debate. I will divide my responses thematically under four headings.

I turn first to the new scheme proposed by noble Baroness, Lady Finlay of Llandaff, in relation to how one deals with safeguarding here. The scheme would involve not having two doctors, then the panel, and then a doctor again at the point of administration; instead, the person who wants an assisted death would have to apply to a separate organisation, where a panel of up to seven people would consider their application. That panel would consider whether the safeguards are satisfied, as well as a number of other questions. If it were satisfied, it would give a provisional certificate of eligibility. The drugs could not then be delivered—I use that word without meaning “delivered to the person”—because an application for fast-track care and support would have to be made. If that application were granted, then—and only then—could the drugs be administered.

If there were doubt in the mind of the seven-person panel, the matter would be referred to the High Court. The provisions put forward by the noble Baroness do not specify what the role of the High Court is. The panel has to satisfy itself that a number of questions have been addressed, although those questions do not determine whether or not somebody is entitled to an assisted death. That is the proposal from the noble Baroness, Lady Finlay. The current proposal in the Bill is that the co-ordinating doctor has to satisfy themselves of seven or eight strict matters, and then the panel considers the case. The co-ordinating doctor then, satisfied that the conditions have been met, provides assistance to the person who wants to die.

Underlying the distinction between the two proposals is the wish of the noble Baroness that the whole process of assisted dying be kept completely separate from the care that is being given to the patient. I am sorry that neither the noble Baroness, Lady Cass, nor the noble and learned Baroness, Lady Butler-Sloss, is here, for they both highlighted that, under the scheme in the Bill, the people who will be going through the checks—the co-ordinating doctor and the independent doctor—will have to have opted in to specialist training. To some extent, they will be specialists themselves in assisted dying.

If one wants to give as much help as possible to the person who wants an assisted death, it must be better that the person providing the assistance can work within the team that is already providing care. It does not mean that they should be in any way pressing for a particular result. But, if we introduce assisted dying, and we want somebody to do the assessment and give the assistance, we are probably going to have ask somebody with some experience. We do not want to force the patient into an over-complex, entirely separate process.

I note that the noble Lord, Lord Stevens of Birmingham, said that he wants the process kept separate from the NHS, but I am absolutely sure that he does not want the patient to embark on a very complex bureaucratic procedure. He has given reasons why he wants it kept separate from the NHS. As sponsor of the Bill, whether it is precisely separate or not is, for me, not the key question; the key question is whether, if a patient wants an assisted death, there is a practical and safe way of doing it that does not place an undue burden on them.

The proposal from the noble Baroness, Lady Finlay of Llandaff, is overengineered and much too separate from the care of the patient. It leaves out so many aspects. In particular, the drafting of her proposal does not indicate what her seven-person panel has to be satisfied of. The idea that seven people have to be satisfied is, in my respectful submission, much too onerous. Having two specialist doctors and a panel of three examining the case is, with respect, a much better proposal. I have thought very carefully about the noble Baroness’s proposal, but I have to say that the proposal in the Bill is so much better, so much more workable and so much more focused on the patient.

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

May I just finish? The noble Lord, Lord Stevens, refers to proposed new paragraph (m) in the scheme. Under the scheme proposal, the panel of up to seven persons has to be satisfied, or the “assessment must ascertain”, that the person

“has experienced the involvement of a specialist palliative care team and, if not, whether this was because of availability, unsatisfactory care or patient choice”.

I am very supportive of the idea—and I think this was in the noble Lord’s mind—that as much information is available as possible. As I understood the noble Lord, the more we know about the shortcomings of palliative care, the better.

However, I wonder whether the best way to deal with that is not to make a requirement in proposed new paragraph (m) for what a seven-person panel must investigate but to make that the sort of issue that the voluntary assisted dying commissioner should be looking at in his monitoring, which is required specifically by the statute. That is just the sort of thing that might help him.

We all support the point that the noble Lord, Lord Stevens, made that the more we know about palliative care—its funding, where it is good and where it is bad—the better. But is the assisted dying Bill the right place to try to lever in a whole range of informational requirements, of the sort that he referred to from the Mental Health Act, which we would all support?

[Lord Stevens of Birmingham (CB)]

Even if the noble and learned Lord does not adopt the scheme put forward by the noble Baroness, Lady Finlay, would he nevertheless accept that, for the co-ordinating doctors, it would be valuable to ascertain the information contained in proposed new paragraph (m) in this amendment? We would therefore be accumulating real-world evidence from every case and not looking at just the aggregate national position that the voluntary assisted dying commissioner might be able to adduce.

[Lord Falconer of Thoroton (Lab)]

Yes, and I cannot imagine a situation, in particular because it is specifically required under the Bill, in which the co-ordinating doctor does not raise the question of what palliative care the patient has had and what is available. Indeed, the Bill requires him or her to do that. Whether the co-ordinating doctor should then provide that information to the voluntary assisted dying commissioner is a matter for the commissioner, as it is up to him or her to decide what information to collect. In principle, it seems a good thing, but the noble Lord has referred to vastly bigger issues that we might need to consider, not in the context of the assisted dying Bill but in relation to how proper information is available about the availability of palliative care. We are all supportive of that.

[Lord Harper (Con)]

I wanted to ask the noble and learned Lord, on his comments about the contribution from the noble Lord, Lord Stevens, about the role of the NHS. As noble Lords know, that this is to be provided by the NHS is not set out in the Bill. It is allowed for, and there are powers to amend the founding principle of the NHS to make it possible, but I had understood and Ministers indicated that, if this legislation were passed, this would be done by the NHS.

The noble and learned Lord said that this question is not of enormous importance to him; it is more about the process, which comes back to the point that the noble Baroness, Lady Jay, made about it being workable. However, I should like the noble and learned Lord just to set out his view about where assisted suicide should be provided, because the question about whether it will be provided by the NHS or not is really important. Whatever view the noble and learned Lord takes, the Committee deserves to know which of those two scenarios it is, before it makes a decision on whether it wants to support the Bill.

[Lord Falconer of Thoroton (Lab)]

When I said that I am really focused on how to provide a proper assisted death and that that is not a technical question about whether the NHS will provide it, I did not mean to say that it is not important for this issue to be resolved. If I did, I misspoke, but please do not read me as saying that. That is an issue on the way to the Bill providing a compassionate and workable way of providing an assisted death to those who want it.

As to the second part of the question asked by the noble Lord, Lord Harper, about my view in relation to it, it is that it is ultimately for the Secretary of State for Health to decide how it is provided. The power is given to the Secretary of State to decide that in Clause 41, with the amendments that I have put down in relation to it. It gives him power to commission it himself or through a variety of other bodies. That might involve some body other than the NHS providing it. Ultimately, it is for the Secretary of State to decide how that is done. I think I have said enough on the scheme proposed by the noble Baroness, Lady Finlay.

I will go on to substances. There is a range of amendments in relation to substances. We shall come back to substances in relation to Clauses 27 and 37. They are in this group because they relate in part to the scheme proposed by the noble Baroness, Lady Finlay. She proposes designated pharmacies so that only particular pharmacies can do it. It is again—this is the wording of the Bill—for the Secretary of State to decide how substances are to be selected, how drugs and devices are to be approved, and then how they are to be dealt with. Subject to my amendments, which give more limitation to Clauses 27 and 37, I think the right principle in relation to that is that it is for the Secretary of State to decide how properly to regulate and choose the substances, and he or she is to do it only after taking proper advice.

[Baroness Berger (Lab)]

On that very point about Clause 37, I am sure my noble and learned friend is aware of the updated Delegated Powers and Regulatory Reform Committee report alluded to by the noble Lord, Lord Stevens, a moment ago. On that clause, it states that there are still “highly inappropriate” provisions in the Bill, particularly on Clause 37, specifically in relation to the substances that would be used for an assisted death. I heard what my noble and learned friend said, but it is the complete opposite of what the report released yesterday says and what remains in the Bill. The amendments that my noble and learned friend has brought forward do not yet address the concerns expressed by that very important committee in its report.

[Lord Falconer of Thoroton (Lab)]

I accept what my noble friend says. I hope she has read my note to the committee, which it published, in which I accept that further work is required, in particular on Clause 37. I accept in principle that I have to come back with further amendments in relation to Clauses 27 and 37.

The noble Baroness, Lady Hollins, has made a series of creative suggestions. She is addressing this in a way that is separate from the proposal from the noble Baroness, Lady Finlay of Llandaff. She says that her proposals on substances should apply irrespective of which scheme it is. I need to consider some of them in detail. My noble friend Lady Blake has indicated why some are difficult to integrate into substances for assisted dying. I am particularly interested in the relationship between the Medicines and Healthcare products Regulatory Agency and the approval of these drugs; that needs further thought on the sponsor’s part. In addition to the amendments that I am proposing to Clauses 27 and 37, I should consider them as I think they are valuable.

For the reasons given by my noble friend Lady Blake, I do not support the amendments proposed by the noble Baroness, Lady Grey-Thompson, in relation to clinical trials. Although the MHRA has a part to play, I also accept the limitations on that put forward by my noble friend Lady Blake.

I have seven amendments in this group: Amendments 624A, 708A, 708B, 710B, 862B, 877B and 878A, all of which relate to limiting the power in Clauses 27 and 37, and include a requirement for consultation in respect of the Minister. I do not think that they are contentious, although I accept that people think that I should go further. In the respect that I have mentioned, I am more than willing to think about going further. If and when we reach those amendments, I expect the Committee to agree to them.

I deal finally with the question from the noble Lord, Lord Empey, in relation to Northern Ireland. He asks why the Bill extends the power of the drug regulator in this respect to Northern Ireland. The noble Lord will know that drug regulation is a matter for the whole of the United Kingdom so must be dealt with by a statute in this House. We are not suggesting that Northern Ireland should change its current law, but if there was a law change then there would be no reason why the drugs authorised in whatever process the Secretary of State agrees to should not apply to Northern Ireland. That is why it refers to Northern Ireland.

[Lord Deben (Con)]

Does the noble and learned Lord agree with the noble Baroness, Lady Murphy, that assisted dying is part of palliative care?

[Lord Falconer of Thoroton (Lab)]

Assisted dying is about giving somebody a good death. Palliative care is about exactly the same thing.

[Lord Empey (UUP)]

I thank the noble and learned Lord for his explanation. However, I said that it was a probing amendment. Other clauses are also extended to Northern Ireland, not simply Clause 37. Because it was just probing, I reserve the right to reflect on that and perhaps come back at a later stage.

[Lord Falconer of Thoroton (Lab)]

It is my fault for not dealing with it adequately. Of the two other clauses that apply, one is about advertising and is concerned with advertising into England and Wales. Nobody wants the advertising of assisted death services. We have drafted it on the basis that if you do it from Northern Ireland into England and Wales then there should be a means of enforcing that. The other is detriment to employment rights. Employment law covers the whole of the United Kingdom, which is why this applies to that one as well.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am grateful to all who have spoken in this debate. I am concerned that some things that were laid out in my scheme appear to have been misinterpreted. I would like to get those out the way first.

I did not say that the panel must have seven people who approve an application. I pointed out that two people would meet the patient and go to the person seeking an assisted death, but the panel could be “up to” seven people. It could co-opt people as it felt necessary to make a decision.

There is a fundamental question here as to whether this is within or separate from NHS services, which is the request that has been made by the royal colleges. It is of concern that this remains unanswered. I am most grateful to the noble Lord, Lord Stevens, for having laid it out so clearly and clarified it. It is not only about funding but about how people behave within a service and what they do.

On the statement about palliative care—I am sorry, the noble and learned Lord seems to be laughing; does he find this amusing?

[Lord Falconer of Thoroton (Lab)]

No.

[Baroness Finlay of Llandaff (CB)]

On the question of palliative care and stating that it is about a good death, palliative care is far, far more. When the patient dies, that is an end point of care which has been aimed to improve quality of life right the way through.

I have already provided evidence to the Committee that an optimum time really should be a minimum of knowing the patient for three months to be able to have an input, and care should go on to those who are bereaved after the death. That is quite different from seeing the term “euthanasia”, which was translated into a “good death” and is a single point in time. Palliative care is used to people having a fluctuating wish to die, to seeing people who are in despair and to having to deal with some very complex problems, which was what I tried to illustrate with my patient, who gave permission for me to tell his story.

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[Lord Goodman of Wycombe (Con)]

My Lords, I will speak to my Amendment 151, which is supported by the noble Lord, Lord Carlile, and the noble Baronesses, Lady Fox and Lady Hollins. It was also referred to approvingly by the noble Baroness, Lady Campbell, in her earlier remarks. My amendment would prohibit medical professionals from raising assisted dying as an option, unless explicitly requested by the patient.

I will be very brief in introducing this amendment, by pointing out to the Committee that it goes to the heart of a juxtaposition suggested by the Bill. On the one hand, we have an increasingly large, frail, vulnerable, often elderly population, who may not have the full autonomy that the sponsor of the Bill suggests. On the other hand, we have a National Health Service that, by the nature of events, is almost always underfunded and feels that it will be underfunded. If you put those two things together, there will be an inevitable pressure to cut costs and present the cheaper option to the patient who is seeking guidance.

I have carefully read the sponsor’s words in Clause 5 and it is true that, on paper, the patient must be offered the option of palliative care as well as that of an assisted death. However, in these circumstances of financial restriction, I am concerned about the patient being steered in a certain direction. I will not regale the Committee with horror stories from abroad, usually from Canada, about precisely this taking place. Were I to do that, the sponsor of the Bill and others would, quite rightly, point out that there are safeguards in the Bill that are not present in Canada. I would point out in return that safeguards can be whittled away over time. In making that point, I mean nothing to the detriment of the sponsor of the Bill; I am sure that he does not mean it to happen but, over time, people can make amendments and changes to legislation.

I will step back from this amendment and look at it in this way. I believe that assisted dying is intrinsically problematic and, if the Bill ever got further, I would vote against it at Third Reading. However, my concern while we are here is to improve the Bill. If we are to have such a Bill, I want it to be in the best—I should say the least bad—condition possible. Noble Lords know that nothing in the amendment would alter the basic architecture and structure of what the sponsor of the Bill has proposed—in relation to the first doctor, the second doctor, the panel, proxies, the regime for regulating substances or any of that. The amendment would do nothing whatever to prevent anyone seeking an assisted death. All it would do is to prevent a medical professional raising it.

Therefore, I suggest to the noble and learned Lord the sponsor that, if he wants to make some progress with the Bill, he might accept this amendment or one of the many others in this group to a similar end. I look forward to hearing him when he replies but, whether he does accept it or not, this amendment would write a safeguard into the Bill that is not there, and I commend it to the Committee.

[Lord Falconer of Thoroton (Lab)]

I congratulate the noble Lord because, although I disagreed with his conclusions, in just three minutes and 35 seconds he managed to summarise brilliantly the arguments both ways and the evidence.

[Baroness Lawlor (Con)]

My Lords, I will add a word to follow my noble friend Lord Goodman’s Amendment 151, in proposing my Amendment 153A. This goes further to stipulate that a medical practitioner may not raise the subject with the patient

“unless the person has raised it first during an in-person appointment requested specifically for that purpose”.

We have spoken today about the position of trust that the doctor enjoys. He or she is trusted by the patient and by our society, and is paid for by the taxpayer who trusts him or her. That trust is breached if the position is used not for the treatment of a patient’s symptoms, to help manage them or to benefit the patient, but to suggest that the patient should instead consider killing themselves.

A doctor who is trusted to find the best medical treatment for, say, pneumonia, blood pressure or heart disease becomes an agent who leads to the medicalised death for the patient with a poison that is self-administered, as if it were just an ordinary curative medicine. Moreover, as the Bill stands, the requirement to discuss possible side-effects and complications, which we know happens in other jurisdictions, is not there. Perhaps we might also consider why doctors are in this position of trust. It is because they have special knowledge, not only of medicine and its treatment, but of access to medications. They are especially trusted when the patient is very ill, very frail or terminally ill and perhaps already feeling a burden to those who are looking after them. If we permit the doctor to raise the subject of assisted dying to those who are so suffering, we leave the door wide open to the abuse of power. It need not be deliberate abuse. The doctor may only be raising a possibility—

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[Baroness O’Loan (CB)]

I accept the noble Baroness’s intervention, but they certainly thought it was a bad idea, and there is further discussion in South Australia about the issue.

If I may go on: as drafted, the Bill will permit discussion about assisted dying before discussion about palliative care. It would come as something of a shock—

[Lord Falconer of Thoroton (Lab)]

I think the position was that there was an Act in Victoria, Australia. After the five-year review of the operation of the Act, the Government recommended that the prohibition on raising it be removed as it was found to be impeding access and undermining patient-centred care. The Royal Australian College of GPs welcomed the recommendation as a sensible step and the law was changed.

[Baroness O’Loan (CB)]

I accept that, no problem.

It would come as a shock if a doctor came to one’s bedside and said, “In these circumstances, you may wish to consider an assisted death”. Experience would tell us that a patient might not hear much more of any discussions about treatment and palliative care, given the shock and their already vulnerable state.

Can the Minister explain why the Bill is drafted as it is in this context, permitting a discussion about assisted dying without requiring a previous discussion about palliative care? Can the noble and learned Lord, Lord Falconer, assure your Lordships that there will be a genuine choice?

[Lord Falconer of Thoroton (Lab)]

The noble Baroness will know that Clause 5 specifically says that if a registered medical practitioner raises the question of assisted death, he

“must explain to and discuss with that person … all appropriate palliative, hospice or other care”

that is available. It says:

“Accordingly, such a preliminary discussion may not be conducted in isolation”


of, among other things, palliative care. I am not sure of the basis on which the noble Baroness is saying that that should come before rather than at the same time.

[Baroness O’Loan (CB)]

I am saying that it should come before, because Clause 5, as drafted and as the noble and learned Lord read it out to the Committee, says it is to be part of a discussion about assisted death. I suggest to the Committee that if a doctor mentions assisted death, that will focus one’s mind in a way that may cause distress, shock and all sorts of things.

There is another problem: the issue of the doctor raising the issue despite the fact that the patient has given no indication that he wants to talk about it. The Bill is said to be a matter of autonomy, but it cannot be denied that there is an unequal relationship between the patient and the doctor. Doctors are perceived as knowing and acting in the interests of the patient. Under the constitution of the National Health Service, it is provided:

“It is there to improve our health and wellbeing, supporting us to keep mentally and physically well, to get better when we are ill and, when we cannot fully recover, to stay as well as we can to the end of our lives”.


Even where a patient may have autonomy, were a doctor to initiate a discussion about assisted dying, he or she would fundamentally undermine patient autonomy. Offering assisted suicide is not the same as offering palliative care, cancer treatment or any other care. These are all directed to the treatment of a living person. Assisted suicide is about killing the person.

When doctors raise assisted suicide or assisted dying, patients may interpret this as an implicit recommendation or, indeed, a judgment about the value of their life, not a neutral option. That undermines agency. A choice influenced by authority, fear or deference is not a free choice. There is a huge risk of a doctor exercising undue influence and exposing patients to pressure at the most vulnerable point in their lives. I heard the noble and learned Lord, Lord Falconer, acknowledge that doctors hold exceptional authority over patients. He should reflect on that.

The solution to these problems, as in Amendments 150, 151 and 154, is to amend Clause 5 to provide that there would be no discussion with the patient until the patient says that they want the discussion. Amendment 156 would delete Clause 5(2) and is consistent with the other amendments. Amendments 159 and 160 would clarify the meaning of the Bill to state specifically what is to be discussed: the death of the person sitting or lying in a bed before the doctor, not any other matter. All these amendments would bring clarity and additional protection.

Amendments 157 and 164 would protect the patient even further by providing that, where a person has told their GP they do not want a discussion about assisted dying, this should be recorded in their notes. That should provide an audit trail of the wish of the patient. This must then be complied with by any registered medical practitioner.

--- Later in debate ---

[Baroness O'Loan (CB)]

My Lords, I would like to clarify something that the noble and learned Lord, Lord Falconer, said in response to my statement that assisted dying was not something that doctors could suggest in Australia. The website of the Department of Health, Victoria, states:

“It is against the law for a medical or other health practitioner to suggest voluntary assisted dying as an end of life option to one of their patients. A medical practitioner cannot talk about voluntary assisted dying unless a person asks them about it first”.


If I can take noble Lords to New Zealand—

[Lord Falconer of Thoroton (Lab)]

Before the noble Baroness references New Zealand, I was saying that that was the position. There was then a five-year review in Victoria and the law was changed.

[Baroness O'Loan (CB)]

It has not changed on the Government’s contemporaneous website. If I go to New Zealand, it says that the doctor cannot advise or discuss assisted dying with you unless you ask for it first. Those are both government websites today. I accept that there may be changes due and that they may come, but they are not there, as far as I can see.

--- Later in debate ---

[Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)]

My Lords, for the benefit of the Committee, I will let noble Lords know that when we have heard from my noble and learned friend Lord Falconer of Thoroton, I intend to bring the Committee to a conclusion. It would be wiser to wait to start the next group next week, rather than to get half way through it and have all the problems about who was or was not here, and so on. If colleagues are thinking ahead to the next group, it will not be called until next week.

[Lord Falconer of Thoroton (Lab)]

My Lords, I pay tribute to the noble Lord, Lord Jackson of Peterborough, for telling us about the circumstances of his father’s DNR, to the noble Lord, Lord Evans of Rainow, for telling us about the circumstances of the deaths of his mother and his grandmother, and the noble Baroness, Lady Fraser of Craigmaddie, for telling us about the circumstances in which her father became ill.

I also pay an especial tribute to the noble Baroness, Lady Monckton of Dallington Forest, whose speech was incredibly powerful and moving, and obviously requires a detailed answer from me in policy terms, about people who have learning disabilities and what may happen to them. It also has relevance not just for those whose parents are still alive, but much more significantly, for when their parents are gone. There therefore needs to be a solution beyond simply ensuring that a family member is there. I pay tribute to the influential nature of the speech that the noble Baroness made in relation to this. Whatever happens to this Bill—and I very much hope it becomes law—what she said will, I am absolutely sure, have an influence on its terms, and we should respect that.

There are three categories that I need to deal with in relation to this. First, what is the position in relation to people who do not have a disability? Secondly, what is the position for those who do have a disability? Thirdly, what is the position for children?

--- Later in debate ---

[Baroness Cass (CB)]

I am still not sure what a person is supposed to do if they cannot access a doctor who is in possession of the full information. If the GP, for example, has a conscientious objection, that potentially puts a hurdle in that will stop them being able to move on to the next stage—they will have to cast around to find a doctor who can have that full discussion. I would have thought that the proponents of the Bill would not want that to happen.

[Lord Falconer of Thoroton (Lab)]

I completely understand what the noble Baroness is saying. Suppose you cannot find a doctor with that information about you—the noble Baroness, Lady Cass, is not talking about the sorts of cases that many noble Lords were talking about, where, by raising it, you are leading to a situation where somebody might be persuaded when they otherwise would not—the answer would be that you would have to consent to all your records being given to a doctor with whom you could have the conversation.

Noble Lords should remember that Clause 5(6) says:

“A registered medical practitioner who is unwilling or unable to conduct the preliminary discussion mentioned under subsection (3) is not required to refer the person to another medical practitioner but must ensure that the person is directed to where they can obtain information and have the preliminary discussion”.


So you can get assistance from a doctor who is not willing to have the discussion. The noble Baroness is absolutely right that, in order to have the discussion, the doctor has to have all the information I referred to. If no doctor in possession of that is willing then you will have to consent to it being given to somebody else—and a patient can consent to their records being given to another doctor.

I turn to the position for those with a disability and, in particular, will deal with the point so powerfully raised by the noble Baroness, Lady Monckton. My Amendment 548A would require that anybody providing a relevant activity under the Bill—new subsection (8) defines “relevant activity” as including “conducting a preliminary discussion”—must not carry out that relevant activity unless the person seeking assistance has an “independent advocate”.

The amendment says that

“‘qualifying person’ means … a person with a mental disorder (as defined by section 1(2) of the Mental Health Act 1983) … a person who (in the absence of support) would experience substantial difficulty in doing one or more of the following … understanding relevant information … retaining that information … using or weighing that information as part of the process of making relevant decisions, or … communicating their views, wishes or feelings”.

Where there is to be a preliminary discussion, the person has to be accompanied by an independent advocate, unless—this is in new subsection (3) to be inserted by the amendment—the person

“seeking assistance informs the relevant person that they do not want an independent advocate, or … where the relevant activity is conducting a preliminary discussion, the person seeking assistance informs the relevant person that they are content for the preliminary discussion to be conducted without them having an independent advocate”.

What the sponsor of the Bill is aiming at there is as follows. If there is any question about one’s ability to process information—what the noble Baroness, Lady Monckton, said about the suggestibility of people with Down syndrome is incredibly resonant—I would envisage the position to be that you have to have an independent advocate but you may not need to have one if it is known to the doctor, or if it becomes apparent, that a family member would be adequate. That would be a reason for not having an independent advocate. But, if there is no family member—for example, if the person suffering from a disability has no parents, siblings or whatever—there has to be an independent advocate.

It may be that the area I should focus on in the amendment on independent advocates is this: you can say no to the need for an independent advocate, maybe because you have nobody else, but is that too risky? I need to consider that, given the point on suggestibility raised by the noble Baroness, Lady Monckton, and Mr Ross of the Down syndrome advisory policy group, whom I have discussed that with.

The points made about people with a learning disability are, I hope, addressed in my amendments on an independent advocate. Ultimately, where there may be no family, the independent advocate has to be the rock-bottom protection.

I move on from that to children. I remind noble Lords that, as the noble Baroness, Lady Coffey, made clear, Clause 6 says:

“No registered medical practitioner or other health professional shall raise the subject of the provision of assistance in accordance with this Act with a person under the age of 18”.


It cannot be raised, and I completely stand by that. What happens if it or something like it is raised by a person who is under 18? I found what the noble Baroness, Lady Finlay, said, to be resonant and insightful. You have to deal with it in a sensible way. You cannot just say, “I’m afraid I can’t talk about that. That’s the end of it”. You have to treat the person with a degree of maturity.

The noble Baroness, Lady Finlay, supported Amendment 211, in the name of the noble Lord, Lord Rook, which says:

“If a person under the age of 18 raises the subject of the provision of assistance under this Act, the medical practitioner must refuse to discuss the subject and shall inform the person that such assistance is not available to individuals under the age of 18”.


I am sure that the medical practitioner should say that it is not available to persons under the age of 18, but I am not sure that it would be wise for the Bill to prescribe that no further discussion is appropriate—particularly for 17 year-olds, who are often quite perceptive. The idea that you cannot have any discussion about this is just not practical or sensible and it would drive people to other sources, which may be more dangerous.

[Lord Harper (Con)]

I will press the noble and learned Lord on that point. The ability for medical professionals to discuss this with patients is prescribed in the first part of Clause 5, but only

“in accordance with this Act”.

If you were a medical professional and a child raised this with you, and you started discussing it, would you not be obliged, under your legal and professional suicide prevention duties to that child, to take steps to protect them? Under the Bill, they would not be eligible to have an assisted suicide. I do not understand this—and the noble and learned Lord has not answered my question about what happens with adults—but if a child goes to a medical professional and starts suggesting that they want to end their life, that medical professional is under a clear duty to take steps to protect the life of that child and even to take steps to force that to be the case. Unless I am missing something, nothing in the Bill will change the legal and professional duties on that medical professional.

[Lord Falconer of Thoroton (Lab)]

The noble Lord is right. The point I was making was that, if it is raised, it is not sensible to just close down the discussion altogether. There has to be an informed discussion, which is completely consistent with the duties that the noble Lord referred to. The idea that there cannot be any discussion about it, which is what I think the amendment in the name of the noble Lord, Lord Rook, says, is, in my submission, neither practical nor wise. It is for the doctor to decide how to deal with it, of course in the context that the noble Lord mentioned.

Finally, if the Bill passes, Parliament will have decided that the option of an assisted death for those who are terminally ill is an appropriate option. It may well have come to that conclusion because it thinks that it is a compassionate option to give people, as has occurred in so many other countries in the world. Once Parliament has said that that is the position, those people who are in a position to access assisted dying should be given appropriate assistance to do so. That is why, in my view, it is perfectly acceptable for it to be discussed by doctors as an option for people who are terminally ill, because they will look to those who are caring for them for assistance to determine how their life ends. I am not sure whether the noble Lord, Lord Moylan, was saying this, but I do not believe that adopting that option is morally abhorrent.

[Lord Harper (Con)]

I will press the noble and learned Lord because I genuinely want to understand what is going to happen. This is quite a big deal for the health service and other professionals in this area. When, under the Suicide Act, which the Bill amends, somebody trying to take their own life stopped being a criminal offence, we did not suddenly say that we thought that was an acceptable thing for them to do; we recognised that making it a criminal offence did not make a lot of sense. Therefore, just because we make assisted suicide lawful—getting assistance to take your own life—in itself that does not change the suicide prevention duties.

I want to understand, if the Bill were to become law, what steps the Government would have to take on the legal duties that medical professionals have under the suicide prevention duty and their professional duties; otherwise, I do not think we are being very consistent here. I do not want medical professionals, who we are asking to do this work, to be conflicted or to think they are at risk. Organisations such as the Medical Defence Union think we are in great danger of putting those medical professionals in that invidious position, and the noble and learned Lord has not really answered my question satisfactorily—or certainly not to my satisfaction.

[Lord Falconer of Thoroton (Lab)]

The point of this part of the Bill is that it is a legitimate option. If the noble Lord is saying that because we have suicide prevention policies in other areas, we should still treat it as something that we should not in any way encourage or help people to access if that is what they want, that is wrong. The true position is that, once it becomes an option, subject to the safeguards being gone through, it is something that people should know about and make their own judgment about.

[Baroness Berridge (Con)]

I do not think we have fully understood these two categories. I was grateful to the noble and learned Lord for the meeting with Professor Ruck Keene. It is clear, particularly when you are talking about the Mental Health Act, when there are two different statutes you can choose from, that we need to be clearer about that for clinicians. So, unfortunately, even at this late stage, I am afraid I will have to lay some amendments so that we can really talk about this in detail, because it is a matter of concern, particularly to psychiatrists.

On the points I have made about children, I accept the point from the Minister that the probing amendment is probably too wide. However, we have not even had the comments on the categories of people who can now raise this with children, such as schools, et cetera. I also raised the point—I am grateful that the noble Lord, Lord Tarassenko, is now in his place—that I believe we also now have this gap with regard to what advertising prohibits. You have medical practitioners unable to raise it with under-18s, but then you have a whole wealth of technology in between that, which can, as we know, even with a mistaken question, raise this issue with under-18s. What does the noble and learned Lord envisage will happen in those scenarios, which are at the moment subject to legal cases in other jurisdictions?

[Lord Falconer of Thoroton (Lab)]

A whole range of issues is covered to a large extent by the Online Safety Act in relation to the promotion of suicide, particularly to young people. That, in a way, is a separate issue from this issue. I fully encourage and support all attempts to try to reduce the risks to young people, but I am afraid that the Bill cannot take that on, on its own.

[Baroness Grey-Thompson (CB)]

My Lords, I thank all those who have contributed to the debate on this group of amendments on raising AS in conversation and preliminary discussion, including training.

I thank the Minister for her response to my amendments. However, given the government response and the question about funding, it lays open the bigger question of the whole Bill that many of us are grappling with: who pays for this and what that final bill may be.

The debate has gone in a slightly different direction from what I expected. It is interesting that the noble and learned Lord, Lord Falconer, differentiated in his response between non-disabled and disabled people. Independent advocates will come up in a later group, but I think it is really important that it is understood, as part of this group, when we are talking about learning disabilities, that it may be very difficult for someone with a learning disability to understand what an independent advocate is and what their role is. They may say that they do not need it but not really understand what they are saying yes or no to. We will cover that next week.

I am slightly worried that there may or may not be guidance from the GMC and/or the Secretary of State. I will be very interested to discuss that with the noble and learned Lord away from this Chamber. This is where we probably disagree. Those who support this Bill will talk about Victoria and say that it gives greater access; I say it is a slippery slope and that it is making it easier for a wider group of people to enter this process. We have covered in previous amendments the use of language. “Person with a disability” is not used in the Equality Act. I had hoped, through my contributions to previous debates, that there was some understanding of it and why organisations of and for disabled people are worried about this Bill. It is not just about the contents of the Bill; it is about the language of the Bill. Organisations of and for disabled people use the social model. I will not go through that again, but the language they choose to use is “disabled people”.

The noble Lord, Lord Weir, has apologised for having to leave, but he raised the issue of how disabled people are treated. I am going to raise a difficult question, not to anyone in particular but to the whole Chamber. It is rhetorical. How many in your Lordships’ Chamber have ever felt sorry for me because I am a wheelchair user? My previous career as an athlete negated some of that feeling because, if you like sport, competing for Great Britain is a privilege: of course it is. In my second career, however, I consider the way that I am treated every single week. I am a long way from my sporting career now but, if I am rushing to a meeting, I luckily do not hear “It is not a race” too often these days. I know: I am not in my racing chair and I am not wearing Lycra. I am not sure sometimes, when people say this, whether they think they are being kind, sweet or funny. I did not have a traumatic or dramatic accident; I was a wheelchair user from a very young age. There were a few points in my life when I had three spinal surgeries and experienced terrible pain, but I am healthy.

The noble Lord, Lord Weir, raised the different views that doctors have of people. I have said before that my husband had a traumatic accident at 21. He broke his back and spent nine months in hospital. Many people assumed that it irreparably changed his life. It did not. He went on to complete his PhD. He changed sports; he went from cycling to wheelchair racing and he met me. But the way that he was and is treated is very different depending on whether he is walking with his crutches or is occasionally using a wheelchair. If he is walking, people like to think that he has had a skiing accident or something quite cool but, when he is in his wheelchair, people talk down to him. His colleagues have completely forgotten that he has a PhD and have talked to him differently.

He had a stroke in 2020 and I was really worried about him going into hospital because I was not sure of the outcome. I had calls with doctors telling me about the impact of the stroke. The noble and learned Lord talks about doctors needing to know all the information. It was really clear in his patient notes that he had a spinal cord injury, but the doctors rang to tell me that both of his legs were really badly affected, and I was saying, “Well, that would be the spinal cord injury”. They then told me that his grip strength was really good. Well, 30 years of doing wheelchair racing and cycling and walking with crutches would make that happen; they had no idea what his grip strength was like before he had the stroke. So the information they were giving both of us was not very helpful at all.

All our experience of healthcare is very different. I had a doctor in a spinal unit ask me, “How did you catch spina bifida?” I laughed. I have been asked it several times. I think the first time was when I was in my early 20s, and I said I had caught it with a butterfly net—humour does not always go down very well, either in the Chamber or outside. I was really shocked that a doctor in a spinal unit was asking me how I caught a congenital disability. Because of my scoliosis, my internal organs are all in rather strange places in my body. Every time I go to the hospital for a kidney scan, I am asked, “Do you have one kidney?” I say, “I have two kidneys; look at the notes”. “Are you sure?” “Yes. I haven’t had an operation to remove one of my kidneys”. Every time you are measuring what you say because you do not want to offend doctors and you do not want to be rude or flippant. I sit there and say, “I have two kidneys. My right kidney is somewhere up under my arm”. “It can’t be there”. “Look at my notes”. Eventually, they find my kidney somewhere up underneath my right arm.

This is the frustration that disabled people feel. It is lovely to say that doctors will read all the notes and understand them, but actually something as basic as “I have two kidneys” is often misunderstood. So I challenge your Lordships’ Chamber. Have you ever pitied me? Do you think I am brave? Do you ever think, “Well, at least it’s not me?” Am I brave as a wheelchair user or brave because I was an athlete? How many people consider that, because of my impairment, I suffer? I apologise for sighing when the noble and learned Lord talked about the suffering of disabled people. My phone started pinging. I cannot read out any of the responses or the messages I have had on that, as all the language is unparliamentary. This is why disabled people are scared. The assumption is that we suffer. I do not suffer.

Disabled people are worried. That is why they are fighting this Bill. It is not kind, it is not sweet, it is not being understanding, it is not being compassionate. We are constantly having to try to fit into a version, an idea, of what non-disabled people think of us. If we dare challenge that, we have a chip on our shoulder, and we are one of those funny disabled people who just do not understand that we are meant to deal with people being kind to us. We have to deal with being patted on the head, literally and figuratively. It once happened to me in this building. It was a Peer who did it to me. I was with colleague who was a wheelchair user and we were chatting about a Bill that we were working on. The Peer came up to us and said, “Are you having a nice time?”—in that tone. We said, “Yes, actually, we’re debating the Bill that we’re working on at the moment”. The Peer ruffled my hair. This is patronising. This is ableist. It is not kind. How does the noble and learned Lord assume that people like me “suffer”? I am really squeamish about the word. So many people are frightened because of the assumptions that are constantly made. I want to take my challenge further. How do you see disabled people who might be on the streets? Are we deserving and undeserving disabled people? That happens between Paralympians and non-Paralympians.

My noble friend Lady Campbell of Surbiton talked about DNRs being put on healthy disabled people. By virtue of how people who speak remotely are able to contribute, my noble friend and the noble Lord, Lord Shinkwin, were not able to come back into the debate. My noble friend wanted to make it clear that she has to rely on doctors for everything in terms of her well-being. We put huge trust in those people. My noble friend has been in hospital many times, and it is important to listen to her experience of what it is like. I will keep raising this in terms of how I am able to contribute in debates. I can sit in one place—well, three places—in the Chamber. I cannot sit with my colleagues. Those speaking remotely cannot come back and ask questions. There was one time in the time that I have been here when five wheelchair users wanted to speak in a debate. We had to tag-team in and out of the Chamber. How many other noble colleagues have had to do that?

My noble friend Lady Campbell wanted to reiterate the unequal nature of the system. She also wanted to draw attention to a BMA survey looking at doctors and medical students who are disabled or have long-term health conditions. It was published on 3 December 2025. The author, Natasha Wilcock, is deaf. It raised the ableism that exists in that profession. The assumption is that the barriers are from patients, but actually there are deep-rooted issues in the experience of doctors who are disabled. A huge amount of prejudice comes from other doctors.

The noble Lord, Lord Shinkwin, again, was not able to come back in, but he wanted to raise a couple of points. He asked me to say that the noble and learned Lord did not answer any of his questions and that he would be happy if he could write to him.

If you treat your disabled colleagues with prejudice and contempt—sorry, I am again referring to the BMA survey—how do doctors treat disabled patients? The equity of treatment of staff and of patients is inextricably linked.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 20th March 2026 Lords Chamber

[Baroness Coffey (Con)]

My Lords, in this group I have tabled 28 amendments and signed another one. Most of them are connected to the fact that I do not believe the Bill should apply to Wales. We had something of a debate on the first day in Committee, but I was conscious at that point that we did not want to spend the entire first day debating Wales and that we would come back to the legal importance of aspects of this Bill in regard to that. I will of course not speak to every single amendment because a lot of them are just on that theme, but it is an important theme.

I am conscious that, since we debated, the Welsh Senedd has voted for the legislative consent Motion. I remind the Committee that at no point was the Welsh Senedd invited to vote on the principle of legislating for assisted dying, because a change in criminal law would not be within its purview. However, in this group, with amendments tabled by other Peers, there is an opportunity for us to consider—

[Lord Falconer of Thoroton (Lab)]

It was asked to vote on the principle of whether this should be dealt with by the Welsh Senedd, because one of the amendments to the Motion for legislative consent was that it believes that

“Wales should have full powers to choose to legislate or not regarding the legality and implementation of assisted dying services, as is the case in Scotland”.

That was beaten by 25 to 13.

[Baroness Coffey (Con)]

The Welsh Senedd’s legislative consent Motion was not about whether it could accept or reject the Bill. People perceived a threat, although I appreciate that this is not what Kim Leadbeater or the noble and learned Lord will have suggested. This perceived threat, explicitly put in a letter by the sponsors of the Bill, was that if the Welsh Senedd rejected the legislative consent Motion, various clauses—particularly Clause 42—would be removed from the Bill, which would effectively remove any involvement of the Welsh Senedd in how the Bill would be put into effect in Wales.

Even then, the Welsh Health Minister voted against that, as did the First Minister of Wales, and they continued to say they felt the Bill was unsafe. I do not want to get into a rehearsal or a repeat of what happened in the Welsh Senedd—but it did vote. Interestingly, the Government have to deal with another issue where the Welsh Senedd voted down a legislative consent Motion on the Crime and Policing Bill, but that is not a debate for today.

Here we are into an important part of the Bill, where the UK Government can override any decisions made by the Welsh Government and the Welsh Senedd. That is particularly singled out in aspects of Clause 42. I have co-signed Amendment 764 tabled by the noble Baroness, Lady Finlay of Llandaff, which seeks to address that by removing certain powers in that regard so that the UK Government cannot determine what happens in Wales. Since the introduction of the Bill a very long time ago, this has evolved into basically a health matter. It is certainly how the Bill’s promoters have tried to shift this. That is why I feel so strongly about it, as I set out on our first day in Committee.

I will turn briefly to some of the amendments we are debating today. Amendment 736 would amend Clause 40, which suggests that guidance “may relate to matters” for Welsh Ministers. Coming from a UK Minister, that is not right. The Welsh Government, working with the Welsh Senedd, should determine that.

The noble Baroness, Lady Smith, has tabled Amendment 844 to effectively shift this to become a decision entirely for the Welsh Senedd. There is certainly merit in considering that, and I am sure she will set that out later. Even further, I strongly support her Amendments 903 and 905, which have been signed by others.

--- Later in debate ---

I strongly believe that this breaks the Sewel convention. This is one area where I genuinely hope the Government can give us a proper answer to a question about what they think, putting aside all the prevarication, and in what way they have provided advice to the sponsors of the Bill about whether the Government believe this is the right or wrong thing to do, in terms of breaking the Sewel convention. I assume by the very fact that this is in the Bill—

[Lord Falconer of Thoroton (Lab)]

My Lords—

[Baroness Coffey (Con)]

Let me just finish my sentence, then of course I will come back to the noble and learned Lord. So far, the UK Government have refused to share any correspondence or to say which of these clauses should be devolved or which should come under a legislative consent Motion. That is why it has been rather unsatisfactory.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness is saying it is a breach of the Sewel convention. The Sewel convention is that if you legislate in a different legislature from that which would be normal—the Senedd, in this case—you need the consent of the Senedd. The Senedd gave its consent in the legislative consent Motion, so perhaps the noble Baroness could explain why it is a breach of the Sewel convention.

[Baroness Coffey (Con)]

It is a breach because I believe a threat was made to Welsh Senedd Members that if they did not vote for the legislative consent Motion, the entire removal of Clause 42 would be put forward in an amendment by the sponsor of the Bill. That is in a letter that was sent by the sponsors of the Bill to the First Minister, then shared with the Senedd Members. I appreciate that the noble and learned Lord may not think it was a threat, but I am suggesting to him that it was perceived as a threat, which then affected the decision of several Senedd Members.

[Lord Falconer of Thoroton (Lab)]

I am totally confused by this speech. The complaint being made by the noble Baroness is that this should be dealt with by Wales. We took the view that if the legislative consent Motion did not go through—that is, the Senedd did not consent to it being dealt with here—it would be dealt with by Wales. The noble Baroness is now complaining that we are complying with the rules of devolution and legislating here, as the Senedd has agreed.

[Baroness Coffey (Con)]

I am conscious that we have probably exchanged views enough. There is a clear breach of the Sewel convention. It is not usual for the UK Parliament to vote on such matters. I do not want to get into further exchanges, but I have spoken to Senedd Members and they believe—I do not want to use an inflammatory word—there was a perceived threat of this being imposed without their say. That is also why, as I repeat, the Health Secretary for Wales and the First Minister of Wales both voted against the legislative consent Motion. That, to me, is extraordinary in itself. I will not go into all the details on that, but it needs to be considered carefully as we continue to debate this group.

As I say, we covered a lot of these issues on day one, so it is not my intention to extend debate. It is useful to switch to other noble Lords who have tabled, in particular, amendments regarding the Government of Wales Act. I am grateful to those Peers who have signed some of my amendments in terms of the shift of power to the Welsh Senedd on this. I beg to move.

--- Later in debate ---

[Lord Stevens of Birmingham (CB)]

The noble Baroness brings me neatly on to the second point I was going to make, which is that the lack of safeguards in Scotland precisely demonstrates the constitutional and practical difficulty of trying to legislate in Scotland while a number of those key safeguards are reserved matters to Westminster. Part of the reason the Royal College of Psychiatrists and the pharmacists came out decisively this week against the Scottish Bill was because it was not able to include enforceable conscience protections for health professionals that would, for example, have enabled them to refuse an instruction from their employer to participate in assisted dying. Instead, the mechanism that was forced, as it were, on the Scottish legislation was a Section 104 order, which would be subject to a future Westminster Government changing their mind.

The Scottish Parliament was being asked to legislate for assisted dying, absent any Scottish safeguards for conscience and dependent on the future decisions of a Westminster Parliament. The noble Baroness neatly illustrates the point that there is a fundamental problem when one part of the United Kingdom seeks to go its own way. It is incapable of getting the necessary protections and that is one of the reasons why the measure was defeated. Amendment 887 in this group, which would withdraw the reference to Scotland from some of the measures, clearly makes sense given that the Scottish Parliament has just decided that it will not go down this path.

[Lord Falconer of Thoroton (Lab)]

The three reasons why it extends to Scotland are so that people cannot advertise in Scotland to England and Wales, so that people in England and Wales get proper protections if they want to use the conscience clause, and so that substances are dealt with by the United Kingdom. That is why Scotland is included. Is the noble Lord saying that he wants those removed if the Bill goes through?

[Lord Stevens of Birmingham (CB)]

Can the noble and learned Lord elaborate on his second reason?

[Lord Falconer of Thoroton (Lab)]

The second reason is that if, for example, you want the protection of employment law, that employment law which extends to the whole of the United Kingdom should protect you in Scotland as much as in England. You should never be prejudiced. That is why it is included.

[Lord Stevens of Birmingham (CB)]

Is the noble and learned Lord suggesting that Scottish health professionals will be travelling south to undertake assisted dying? Is it a sort of Berwick-upon-Tweed provision?

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

If you are an English person who has been prejudiced because you say, “I don’t want to be involved”, you should not be prejudiced anywhere in the United Kingdom.

[Lord Stevens of Birmingham (CB)]

It is not so much a matter of prejudice because, as I understand it, this provision was inserted in the House of Commons in the anticipation that the Scottish Parliament was going to have before it a Bill on assisted suicide, which it would at that point have passed. This was trying to do a belt and braces on a Section 104 order which everybody could see was likely to be deficient.

[Lord Falconer of Thoroton (Lab)]

No, that is not right. The reference to Scotland was included to provide protection for people in England and Wales who, under employment law, wanted to exercise the conscience clause. If I am right about that, I am sure the noble Lord would not wish it removed.

[Lord Stevens of Birmingham (CB)]

I would be interested to come back to that on Report when we have had a chance to investigate that point further.

Fundamentally, this shows that there is a great problem, a structural problem, in trying to do these types of big social changes through Private Members’ Bills, be they in Scotland or England. The reason for that is that it requires concurrent action by the Governments of both nations. We have seen time and again that when these sorts of questions have arisen and we have posed these questions, we have been told by the Front Bench, for reasons we all understand, that amendments to try to deal with these problems pose workability concerns. Then we ask, “How would you address those workability concerns?” and answer comes there none, because the Government are officially neutral on the question. Dealing with these sorts of questions cannot be left to Private Members’ Bills when you cannot get to the bottom of the workability concerns or deal with the fact that, in order for the narrowly drawn legislation to work, there are a whole set of other things that have to be in place that only the Government can provide.

I conclude on that point by noting that this past week we have seen a report from the House of Commons Public Accounts Committee, once again on hospice and palliative care. It says:

“There is an urgent need for reform to address the financial challenges that the independent adult hospice sector faces … The Department’s solution—the Modern Service Framework—is in the early stages of development, details are sketchy, and it is at least a year from being introduced. This is not good enough when so many hospices are announcing service cuts”.


The idea that we should legislate when that is the context right now seems to me utterly ridiculous.

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[Lord Deben (Con)]

I am pleased that I gave time for the noble Baroness to talk, given that she thinks all of this is nitpicking. I remind the House that is what she said about the work we are doing. The fact is—

[Lord Falconer of Thoroton (Lab)]

I am in a total muddle about what the noble Lord, Lord Deben, is saying. I think he is trying to say that Wales should decide on implementation. The Bill says:

“The Welsh Ministers may by regulations make provision about voluntary assisted dying services in Wales”.


We are giving the Welsh Ministers that power. Could the noble Lord make it clear that he supports that provision?

[Lord Deben (Con)]

What I am saying is very simple: the proposers of this Bill have not properly taken into account the particularities that the Welsh have put forward so nobly and well by the noble Baroness, Lady Smith. I never hear from the proposers of this Bill any comprehension or understanding that some other people might have contributions to make. That is why we have had no meaningful changes to this Bill. It is a Bill which is opposed either in principle or in practice by everybody who is supposed to carry it through, and it has now caused real trouble in Wales. I am merely asking the proposers of the Bill to give this House some belief that they really are listening and are not treating our conversations as nitpicking.

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[Lord Harper (Con)]

This is the heart of the problem, which was highlighted brilliantly by the noble Lord, Lord Stevens. This issue touches on a reserved matter—the noble Lord is absolutely right that the proposed change to the criminal law is reserved—but delivering the services, if done through the health service, would not be a reserved matter. The Welsh Senedd debated the principle of the issue and decided that it did not want to have assisted suicide in Wales. When it was faced with the issue the other week in relation to the LCM, what it was being told, as I understand it, was that, if it did not consent to this Bill, and if Clause 42 were removed, it would not have the power to legislate on the delivery of the services. However, this Parliament would still proceed to change the criminal law in Wales, thus allowing people to assist other people to take their own lives, but without the Welsh Government or the Senedd having the ability to legislate for those healthcare services. That, I think, is the position and what it found unsatisfactory.

[Lord Falconer of Thoroton (Lab)]

What the Senedd decided was that it would consent to Welsh Ministers being given power, in effect, to legislate on how to introduce it—that is Clause 42. The effect of the LCM is for the Senedd to say—to the extent that it should be a matter for the Senedd to decide on—that it is content that Westminster should deal with it. If the position is that the Senedd should in fact deal with it, then the Senedd could have retained that power. However, it decided, very sensibly, that if the Bill is going through, it should have powers concurrent with that and get them from the same Bill, because then there is no doubt about what the Welsh Ministers have to do.

[Lord Harper (Con)]

Yes, but the problem is that the noble and learned Lord has just confirmed, I think, that whatever the Welsh Senedd said, his intention was that this Parliament would have legislated to change the criminal law in Wales because it is reserved—and that does not give any democratic say to the Welsh Senedd. That is because of the way the devolution settlement has been established, and, as the noble Lord, Lord Stevens, said, that is unsatisfactory. That is why this issue would be better legislated for in a Bill dealt with by the Government that covered all aspects of it: both the change to the criminal law and the way the necessary services would be delivered in the whole of the United Kingdom, rather than just in England.

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[Baroness Merron (Lab)]

I note the comments that the noble Lord has made.

[Lord Falconer of Thoroton (Lab)]

I express my personal pleasure at seeing the noble and learned Baroness, Lady Prentis, back in the House. She was an extremely successful Attorney-General because she was wise and knew the law. I am very glad that she is back here to keep us in order.

On issues in relation to Wales, we have understood throughout the importance of complying scrupulously with the devolution settlement. The people of Wales have to be respected and the devolution settlement has to be respected. On two propositions here, there is no doubt.

First, this is about the criminal law. If a Bill were passed in the Senedd that sought to change the Suicide Act under the existing devolution settlement, it would have no effect because it would not be within the Senedd’s power to do it. That has to be dealt with by this Parliament.

Secondly, and separately, as a matter of practicality, how assisted dying is to be introduced in the health service and the provision of health in Wales is, in practice, a matter for Welsh Ministers. The approach that we have taken is that this Parliament must deal with the criminal law and Welsh Ministers must be left to deal with the decisions about how it is introduced. It may be that that requires an Act of the Senedd. Because of that possibility, we have included in the Bill the power for Welsh Ministers to give the National Health Service in Wales the power to take steps. That power would normally be given by the Senedd, but so that there could be no doubt about that, and so that it would not wait upon the Senedd, we have included it in the Bill.

Constitutionally, we are allowed to include it in this Bill. Even if there was no legislative consent Motion agreeing to it, we could go ahead without the consent Motion. I and the sponsor in the other place have made it clear, specifically and in writing, that we respect the devolution settlement and that if there is no legislative consent Motion in Wales that consents to this Parliament legislating in an area normally dealt with by the Welsh Senedd then we would withdraw those provisions, because we would not be respecting the devolution settlement. From our point of view, we have proceeded with these provisions only once the LCM has been given. That is our position in relation to it.

I shall now deal with the amendments in that context.

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Could I just deal with this? The noble Lord can come back at the end.

I shall deal first with the 28 amendments proposed by the noble Baroness, Lady Coffey, to remove references to Wales. They would mean that this Bill would not apply to Wales and the Welsh Senedd would not have the power to make a change. As the noble Baroness, Lady Smith, said, this would leave Wales completely in limbo. These amendments raise precisely the same principle that was raised in the first group of amendments that we debated in Committee. I am against these amendments. They do not respect the devolution settlement.

The second group of amendments is, effectively, Amendment 844, which was very well introduced with clarity by the noble Baroness, Lady Smith. She, supported by the noble and learned Lord, Lord Thomas, is saying that we should change the devolution settlement so that criminal justice can be dealt with in Wales. I understand the point and the principled position from which it comes as far as the noble Baroness is concerned. Again, I am against that change. This is not the Bill in which to change the Welsh devolution settlement.

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Let me finish.

In my view, the right answer in relation to this is that we respect the devolution settlement, and it is for the United Kingdom Parliament to decide whether the law is changed in England and Wales. It is worth pointing out that 75% of Welsh MPs voted in favour of the Bill at Third Reading in the House of Commons.

[Lord Harper (Con)]

I shall make two linked points. The noble and learned Lord set out clearly the decision that he and the sponsor of the Bill in the Commons made about how to implement it, which was for the Bill to change the criminal law for England and Wales. The alternative way, as set out in the amendment proposed by the noble Baroness, Lady Smith, is not to change the whole devolution settlement but to make a narrow change specifically for offences relating to suicide. When drafting the Bill, did the noble and learned Lord consider changing that aspect of the settlement and giving that power to change the criminal law as regards assisting suicide to the Welsh Senedd? If he did, why did he come up with his conclusion, given that it has this complexity about the constitutional settlement?

[Lord Falconer of Thoroton (Lab)]

Our approach to this has been to respect the devolution settlement, which, for better or for worse, unquestionably leaves criminal justice to this Parliament, not to the Welsh Parliament. I thought that was the substance of the argument that I was making. We should not change the devolution settlement in this Bill. I respect and understand the argument that the noble Baroness, Lady Smith, and the noble and learned Lord, Lord Thomas, are making, but I do not accept it.

[Baroness Smith of Llanfaes (PC)]

Will the noble and learned Lord clarify whether, if the Bill were to pass, the Welsh Government would be able to widen or limit eligibility for the service in Wales?

[Lord Falconer of Thoroton (Lab)]

The Welsh Government would not be able to widen or reduce the eligibility of an individual for assisted dying. A person would not be in breach of the criminal law in Wales only if they complied with every aspect of the safeguards in the Bill. The Welsh Government’s role would not be to determine who qualifies for an assisted death. In the light of those provisions, it would be only how they introduce delivery of it in the Welsh health service.

There were a large number of other interventions, particularly from the noble Lord, Lord Deben. It was completely unclear whether he is in favour of the Welsh health service having the ability to do that. Whatever his view, I make it absolutely clear that it is for the Welsh health service or Welsh Ministers to decide how it is introduced. It must be in accordance with the statute, but it is for them to decide, and that is why we have given them that power.

I shall go on to the third category. This is not a Welsh Ministers issue, but a Secretary of State issue. The noble Baroness, Lady Finlay of Landaff, made the point that he should not have a Henry VIII power as wide as the one given. I see considerable force in what she said. She asked whether I have an answer that says that this is a parallel with the Brexit provisions, which is the only time that this has been done. I do not have an adequate answer in relation to that, so I should go back and think about how I can appropriately limit that power. However, I make it clear that that is not about the Welsh issue but about the width of the power that the Executive should have. I see the force of what the noble Baroness and the Delegated Powers Committee said.

[Lord Wolfson of Tredegar (Con)]

I am not sure that the noble Baroness, Lady Smith, got a complete answer to her very interesting question. I remind the Committee that she asked what the powers of the Welsh Ministers would be in this regard. Of course, the noble and learned Lord is obviously correct when he says that the Welsh Ministers could not say, for example, “If you have nine months to live, we are going to allow you to access the service”, because that would go beyond the scope of the Act and impinge on a criminal law issue, which is the purview of Westminster. What if they were to say, “We will only, as a matter of health service, allow you to access this if you have three months or less to live”? Would that be within their competence, with their health hat and not their criminal law hat on? I wonder whether that was the point behind the question asked by the noble Baroness, Lady Smith. I am not sure she got an answer to that point.

[Lord Falconer of Thoroton (Lab)]

The health service could determine who it is going to make it available to free, but it could not prevent other people—for example, private providers—having different provisions in relation to it.

The next category of amendments was in relation to removing Scotland. I gave an answer to the noble Lord, Lord Stevens, in relation to that in the course of the debate.

[Lord Stevens of Birmingham (CB)]

Perhaps the noble and learned Lord will clarify the answer he gave on Scotland. I think he is saying that even though the Scottish Parliament has decided that assisted dying should not be lawful in Scotland, a Scottish hospice could nevertheless not prevent its employees doing something that would be unlawful in Scotland if they travelled across the border to perform that act in England. Is that the consequence of what he is suggesting?

[Lord Falconer of Thoroton (Lab)]

This was picked up by the noble Baroness, Lady Merron. She focused, rightly, on what would happen in the case of a doctor who lived in Scotland but worked in England. The question was: could they be prejudiced? The answer is no—employment law would apply, and employment law is right across the country. On what is not being done in relation to the Bill, it does not refer to Scotland, because in Scotland they are awaiting the Scottish Bill. It is entirely focused on the protection of people working in England. That is why it is there. It is also focused on advertising coming from Scotland into England. So it is not in any way dependent upon what might happen in Scotland.

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[Lord Harper (Con)]

That is an answer, but a deeply unsatisfactory one. That is exactly what was done when this was set up in the first place. It led to years of disputes, and to constituents living in England being unable to access the health services to which they were legally entitled. They had to have services in Wales that were less good in respect of waiting times. That is a deeply unsatisfactory answer. The consequence will be a situation leading to lots of complicated workability issues on the ground; that is why I flagged it to both the noble and learned Lord and the Minister on day one. If it is not thought through, it will become a practical issue that will have to be resolved, and if it is going to be resolved, it would be better to resolve it now.

[Lord Falconer of Thoroton (Lab)]

I have sympathy with what the noble Lord says. I do not think it is appropriate for that sort of issue to be resolved in a Bill such as this, and it goes far wider than assisted dying.

[Baroness Smith of Llanfaes (PC)]

I thank the noble and learned Lord for giving way. I have one final question of clarity. If the Bill were to pass here, what would happen if the Welsh Ministers, whoever they may be, did not lay the regulations but the Senedd as a whole supported having those services delivered in Wales? What power would the Senedd have to be able to push for an assisted dying service if Welsh Ministers did not lay the regulations?

[Lord Falconer of Thoroton (Lab)]

I have two points. First, we have made it clear in the Bill that there is no obligation on Welsh Ministers to lay the regulations. In England, they must lay the regulations. In Wales, they may do so; they have a discretion because we thought it appropriate that they should have that choice. If they do not exercise that power, my understanding is that it would be open to the Senedd to pass an Act saying that this has to be done. If no such Act were passed, or the Ministers did not decide to exercise their power under the regulation-making power in this Bill, the consequence would be that the National Health Service would not offer assisted dying in Wales.

[Lord Gove (Con)]

I want to clarify absolutely what the noble and learned Lord the promoter of the Bill is saying. I believe he is saying that, if the Bill passes, we could have a situation where assisted dying is legal in Wales but the NHS does not provide any service—that is theoretically possible—it would be a private service that would be available to citizens in Wales but an NHS service that would be provided in England; there would be that distinct difference. I would just like clarity on that.

[Lord Falconer of Thoroton (Lab)]

That is exactly right. That is why we have given the Welsh Ministers the power to do it. It is for them to decide, because it is not for either the UK Parliament or the Secretary of State here to determine it.

[Lord Gove (Con)]

Again, for clarity, if it were the case that Welsh Ministers thought that NHS resources were better devoted to improving palliative care, for example, or to doing something else, if they said that they would not be providing any resources to support assisted dying, then it would be legal but unfunded. It would be a private service in Wales while it was an NHS service in England.

[Lord Falconer of Thoroton (Lab)]

That is right.

[Baroness Coffey (Con)]

My Lords, we have covered quite a range of issues. I had intended for this to be about the decision-making process. The noble Lord, Lord Pannick, referred to Groundhog Day; it has not been Groundhog Day as far as I am concerned. On the very first day, there was an opportunity for the Government to set out a bit more. People have talked about how it would have been better if this was a government Bill. Actually, if the Government had answered a lot more questions, and had not blocked freedom of information requests to understand what is going on between the sponsor of the Bill and some of these devolution issues, we could have had more progress.

I was grateful to the noble Baroness, Lady Smith of Llanfaes, and the noble and learned Lord, Lord Thomas of Cwmgiedd, who agreed on the first day that we would not cover every single issue about Wales. This was done very deliberately, so that we could have a proper, detailed debate about the governance structure applying in this case.

I have already set out that I would be inclined to support many of the amendments tabled by the noble Baroness, Lady Smith, to transfer some of that decision-making. As the noble and learned Lord, Lord Thomas, pointed out, on the issue of smacking, that has already happened. I did not think that it would be that different or that radical for the issue of assisted dying also to be considered a competence to be passed across to the Welsh Senedd and Welsh Government.

The suggestion has been that I am just trying to disrupt this happening in Wales. It is more about the governance, and that is why we have returned to it at this point. I remind people that, on day one, there was an opportunity for the Government to set out matters and also to consider some of the cross-border issues that were referred to.

I also point out to the Committee that it was decided last week that we would finish the debate early. Nobody had spoken to me about moving the group to today. I feel that we could have covered quite a lot of the issues before 6 pm last week, but that was a decision made by the Government Front Bench without consultation. That is why we have ended up where we are and probably the debate has been a bit longer. However, this is still, frankly, an unsettled issue, an uncomfortable issue. I still strongly support that we should consider transferring this to the Welsh Senedd for the future. With that, I beg leave to withdraw my amendment.

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[Baroness Nicholson of Winterbourne (Con)]

This Private Member’s Bill has not been discussed with the mosques in London, nor anywhere else. My suggestions are that we have a meeting, that I bring suitable people with me and that we start to open this up. It is against the faith to commit suicide, so this is very important.

[Lord Falconer of Thoroton (Lab)]

Of course I agree to a meeting and the noble Baroness should bring anybody she thinks appropriate to it.

[Lord Polak (Con)]

My Lords, I will raise 50% of a registered interest: I am 100% deaf in my left ear. The maths works, right? My right ear is quite good, thank God, but it is useful in many aspects of my life when I pretend that I did not hear at all.

I support all the amendments in this group. I was not going to speak, but I am moved to speak to Amendment 171 from the noble Baroness, Lady Nicholson, whom I have known for many years. I pay tribute to her bravery and courage, which has enabled her success in her life of service to vulnerable people, and to my noble friend Lady Fraser for her Amendment 167, which she so eloquently introduced. Her professional work with people who often cannot communicate for themselves is well known.

The point I want to make to people who support the Bill and want to rush it through is that this group of amendments shows the vital importance of the process that we are going through. It is a real disgrace that these people are intent on trying to rush this flawed legislation through without this sort of vital discussion. These amendments may affect one person to whom by accident, by being unable to communicate or hear, the wrong thing happens. The Bill should be, and should work, for every individual. That is why I urge the noble and learned Lord, Lord Falconer, to find a way to include these matters and these important aspects in the Bill.

--- Later in debate ---

For the other amendments in this group, on which I make no comment, any workability concerns are likely to be less significant. As noble Lords are aware, those amendments have not had technical drafting support from officials, so the drafting may not be fully workable, effective or enforceable.

[Lord Falconer of Thoroton (Lab)]

I am very grateful to the noble Baronesses, Lady Hollins and Lady Nicholson of Winterbourne, for sharing their experiences with us—in the case of the noble Baroness, Lady Nicholson of Winterbourne, the death of her mother and the circumstances of her mother’s life; and in their case of the noble Baroness, Lady Hollins, the circumstances of her husband’s later illness.

These amendments concern ensuring that people with communication difficulties, hearing difficulties or particular cultural pressures are properly able to access assisted death, but also, very much picking up the words of the noble Earl, Lord Effingham, that they should have an assisted death only if it is crystal clear they have understood everything and it is informed consent. I pay tribute to the noble Baroness, Lady Fraser of Craigmaddie, for the intelligent and sensible way she introduced the amendments. I underline that I think everybody in the Committee would be of the view that the two aims are no discrimination and absolute clarity that somebody has agreed. That is the basis upon which I, as a sponsor of the Bill, approach this matter.

I shall deal first with what the current Bill and my amendments make provision for. Clause 5 states:

“If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters”.


We take the view that that clause is inadequate because the assurance is not in the communication—by which I mean that you have to ensure there is effective communication, not that you have to ensure there are reasonable adjustments, because who knows whether the reasonable adjustments would work. For that reason, we have tabled Amendment 170 to change the wording in that clause and the parallel clause, Clause 10, to

“take all reasonable steps to ensure that there is effective communication”.

I am sure that is the right way to do it. The focus should be not on ensuring they have to take the steps but on effective communication. I emphasise that because the noble Baroness, Lady Fraser, said those amendments would make it less safe. They would not: they would make it safer. I hope that, having heard what I have to say, the noble Baroness will see that I am trying to achieve what she, quite rightly, is trying to achieve.

The second method by which the noble Baroness rightly seeks to identify how one improves this is ensuring that there is an independent advocate or somebody who has the ability to deal with the communication difficulties of the sort she proposes. That is in her Amendment 546, which would ensure that you are entitled to an independent advocate if you have communication or speech difficulties.

I hope the noble Baroness will be persuaded if she looks at my Amendment 548A, which sets out in detail, by amendment, the circumstances in which an independent advocate has to be made available. I am sorry to go through this at speed, but I have no other options. Who is entitled to an independent advocate? In proposed new subsection (8)(b), it is a person who

“would experience substantial difficulty in … communicating their views, wishes or feelings (whether by talking, using sign language or any other means)”.

So we have sought to do the same thing as her Amendment 546 proposes. I do not invite her to agree or not at the moment, but I very much hope that she looks at that and that she agrees that we are all trying to get to the same end. I completely accept how she framed the issue around people who have the sort of communication differences that she and the noble Lord, Lord Moore of Etchingham, referred to. I am sad not to see him in his place, but no doubt somebody will tell him—he dealt with exactly that sort of issue. So I am with the noble Baroness on this, and I hope she will be satisfied that I have dealt adequately with the position.

On Clause 5, the noble Baroness, Lady Nicholson of Winterbourne, said: make sure that there is an interpreter and, she would add, an amanuensis. I hope she will take the opportunity of looking at my Amendment 548A and see that it would cover people who are deaf. But, again, if she is not satisfied with that, I would be more than happy to meet her—but I hope she will be satisfied with that. That deals with people with communication and hearing difficulties.

I turn to people who are under cultural pressures, religious pressures or pressures from their sexual identity. I completely understand this because I have had the benefit of conversations with the noble Baroness, Lady Nicholson of Winterbourne, who put to me the following example: a woman who is of a religion that would tell you that you would suffer in hell for ever after if you were to have an assisted death, but who is having one because she is being pressured by a man whom she is used to taking orders from, in effect. The question is not whether one makes special provision for that but whether our five layers of safeguard provide protection against that. I believe that having one doctor, a second doctor, the first doctor looking at it again, the panel and the first doctor looking at it again will identify those cases. So I understand what the noble Baroness says and I hope that, with the safeguard provisions that we have put in, we have covered that.

The final group is the one from the noble Baroness, Lady Grey-Thompson. She wants amendments that say that the report the first assessing doctor has to give should be in a language and format that is accessible to the person getting it. I completely agree. The clause makes provision for the Secretary of State to make regulations about all those matters, including that, and I would expect those regulations to deal with that.

[Baroness Berridge (Con)]

The noble and learned Lord has not covered my point.

[Lord Falconer of Thoroton (Lab)]

In relation to the point from the noble Baroness, Lady Berridge, that there should be an absolute exclusion on interpreters under 18, she makes the point that in a case involving, for example, a person under 18 who is the child of somebody going through an assisted death, it would be wholly inappropriate for them to have to deal with that. Again, I do not think we should provide for that in the Bill. It should be dealt with by code of practice. I can envisage circumstances in which somebody who is terminally ill and who does not speak English is comfortable only with their 17 year-old child being the interpreter, so I would be not in favour of an absolute exclusion in those circumstances.

[Baroness Berridge (Con)]

To clarify, is the noble and learned Lord saying that a mandatory exclusion would be in a code of practice? We cannot do that unless it is in the Bill. In relation to the latter point, we will just have to agree to differ on the safeguarding issues in relation to a 17 year-old, but would he be agreeable to 16 being the cut-off and mandatory?

[Lord Falconer of Thoroton (Lab)]

I am not in favour of a mandatory bar on any young person. I expect it to be dealt with in a code of practice. I agree that unless there is a mandatory provision in the Bill it will not be effective, but I am not in favour of that mandatory ban.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I thank everybody who spoke in the debate. I am very conscious that I stand between noble Lords and their lunch, so I will try to sum up quickly. I agree with the noble and learned Lord that we are all trying to ensure the same thing. I am disappointed by his response pointing to his amendments around the right to an independent advocate, because that is only one small part. My Amendment 167 was really about seeking assistance in the preliminary conversation. The reason for that is understanding that, as my noble friend Lord Shinkwin so eloquently said, it is about thinking about the process from the perspective of the person with the communication issues.

Any of us might find ourselves at any moment in our life, through illness, accident or frailty, in this position. Turning the tables and thinking about how we would feel going through this process and the preliminary conversations is really important.

I want to just quickly give examples of why words really matter and why it is not just about independent advocates. We have the next group after lunch on that. In Scotland we had the “right to speak” legislation that went through after the campaigning of Gordon Aikman, and the Scottish Government put in the right for people to access communication aids and support. The problem in practice is that many people have been able to access aids but not the support; that was the essence of my probing.

The noble Baroness, Lady Hollins, mentioned training. Yes, people are trained to support, and independent advocates might be in that camp, but it tends to be very basic. If you consult the Royal College of Speech and Language Therapists, it is extremely concerned about the number of professional people available to support this group of people. Clarity is vital all the way through the process.

I am conscious as time goes on that I cannot mention everybody. The point is that language being either mediated by someone else, culturally shaped or indirect can cause an issue at any point in the process, and therefore we must have support for people with severe communication issues and other issues. I pay tribute to my noble friend Lady Nicholson. We must surely do all we can to ensure that the decision of a person to end their own life is truly that of the individual and not simply a miscommunication.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I will respond to the sensible invitation of the noble Baroness, Lady Coffey, to give a brief indication as to what my amendments here do. The noble Baroness, Lady Finlay of Llandaff, earlier referred to the Delegated Powers Committee, which made a number of criticisms of the previous Clause 22, in particular that it did not specify the circumstances in which it was mandatory to have an independent advocate and that it left too much to regulations. We introduced two new clauses to deal with that.

The first proposed new clause is found in Amendment 548A. It first requires that anybody carrying out a relevant activity under the Act has to consider whether the person seeking an assisted death requires an independent advocate. The person carrying out the relevant activity is broadly either the first doctor, the second doctor, the provider of assistance to the patient or a member of the panel. If the relevant person decides that the person does need an independent advocate, the person performing the activity under the Act must give the person seeking the assistance

“information about representation and support provided by independent advocates, and … an explanation of the effect of subsection (3)”,

which is that if you need support you are entitled to have an independent advocate, but if you do not want the support you can say no to it. Where the person performing the relevant activity is a doctor, as opposed to the panel, they have to tell the commissioner for assisted dying that this person has been given the information about an independent advocate.

The people who qualify for an independent advocate are not everybody applying for an assisted death, only either

“a person with a mental disorder”

or

“a person who (in the absence of support) would experience substantial difficulty in doing one or more of the following … understanding relevant information … retaining that information … using or weighing that information as part of the process of making relevant decisions, or … communicating their views, wishes or feelings (whether by talking, using sign language or any other means)”,

as we discussed previously.

If an independent advocate is engaged, their job is to “represent and support” somebody seeking assistance in

“understanding the options available … as regards end of life care, or … anything done under this Act, by or in relation to”

the patient. The job is to help to understand, not to be an advocate for any particular cause.

In Amendment 549A there is an additional proposed new clause, which is collateral to the new clause, saying:

“The Secretary of State must by regulations make provision about independent advocates”.


Those regulations basically have to specify the training required for independent advocates, identify who gives them instructions in individual cases and make arrangements for who appoints them. So one now has —this is the point that the Delegated Powers Committee was making—clear circumstances for identifying when an independent advocate should be appointed and on whom the duty arises to make sure it happens.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, following that, I am concerned about whether I have read Amendment 553 in the name of the noble Baroness, Lady Grey-Thompson, correctly. She did say at the end that maybe not all her amendments were perfectly drafted, so I may have misunderstood it.

As I read the amendment—following after the new Clause 22, as my noble and learned friend has just said —it says that any person, not just a qualifying person,

“between age 18 and 25 wishing to receive assistance under the provisions of this Act must receive consent from a parent or guardian and must be accompanied by an independent advocate in addition to parent or guardian”.

I think I am correct in reading that as everybody, not just a qualifying person.

The idea is that someone at the age of 25 still needs a parent or guardian—if they even know where their parents are. Maybe it is partly because I was brought up in the forces, but I know of people who have taken major life and death decisions by the age of 25 while in charge of military units at war. I have known people—in fact, I see some around the Committee—who by the age of 25 have given birth to children, which seems to me an enormous decision that one takes. I, well below that age, took a decision that meant I would never have children. I know of surgeons who before the age of 25 have taken decisions of a life and death magnitude in surgery. There will be people now sitting on the Bishops’ Benches who will know of circumstances in which big decisions are taken by people well below that age.

I am really surprised that we would be writing this into the Bill for those people. Suddenly, at the point when they are terminally ill and dying, we say that, up to the age of 25, they have to locate a parent—whom they may not have seen for years—and, in addition to the parent, have to have an advocate with them. I find that extraordinarily devaluing of ordinary human life and the ability to take decisions.

As I say, I could have misunderstood the amendment. The noble Baroness, Lady Grey-Thompson, said that she may not have drafted it correctly, so it may be that this should apply only to a qualifying person and not all people. I still have my doubts that we really need to treat adults as if they are really young children.

[Baroness Cass (CB)]

My Lords, I will speak to a number of amendments in this group. I can be briefer on some because the noble and learned Lord, Lord Falconer, has copied some of my homework and taken it as his own—which I take to be a good thing.

[Lord Falconer of Thoroton (Lab)]

I apologise for not acknowledging that.

[Baroness Cass (CB)]

Not at all. When I first saw the term “independent advocates” in the Bill, I worried because, in my clinical career as a neurodisability consultant, I have had some very negative experiences of advocates who allegedly were speaking on behalf of people with a range of disabilities but who, we were fairly clear, were not accurately doing so. Some of their behaviours were, frankly, coercive. I know that my noble friend Lady Hollins will have similar experiences and stories to tell.

“Advocate” means different things to different people. Under the Mental Capacity Act, the role is to support people to have capacity, often in the context of the need to make decisions on life-saving treatments. That is clearly not what we are talking about here.

My amendment to Clause 22(4)(b)—which might now be academic, as the clause is to disappear—tries to frame it as people having difficulty accessing information about decisions they need to make for the purposes of requesting assistance and communicating relevant matters. It narrows it down to a communication problem, in the widest sense of the word.

I am slightly concerned that Amendment 548A, from the noble and learned Lord, Lord Falconer, includes “retaining that information” and

“using or weighing that information”

as part of the process. It is very hard, if someone is not retaining information, for anyone to help them to do so; people who are suffering from dementia or memory loss would otherwise be able to be facilitated to remember things, which they cannot possibly be. If somebody does not have capacity, it is hard to see how an independent advocate can facilitate them to have that. That is certainly not what we want them to do, so I am slightly concerned about that line in the new clause.

As for what that independent advocate should do, the noble and learned Lord, Lord Falconer, and I are on the same page, in that it should very much be about facilitating the effective participation of the qualifying person in relation to the provisions of the Act, where their communication needs would otherwise impede such participation. It is about acting to support communication—both understanding and communicating—but not deciding, representing or driving a particular view.

The noble Lord, Lord Sandhurst, who is not able to be here today, and I have put our names to an amendment that seeks that the independent advocate should not be a relative, carer or someone with professional responsibility, for obvious reasons, because, de facto, the individual should be independent and should have had training. Within that training, it is important that they are able to recognise coercion, domestic violence and many of the other issues that we have recurrently discussed in this Committee.

In summary, certainly, my amendments on the role of the independent advocate are subsumed in the new replacement for Clause 22. However, I still have some concerns about who qualifies.

[Lord Weir of Ballyholme (DUP)]

My Lords, I will speak to my Amendment 553B. It is one of a range of amendments I have tabled, which have been put into a number of groups, to try to deal with some of the concerns that have been raised by disabled people and to provide high levels of safeguards. The amendment overlaps with other amendments in this group, as a lot of us are coming from a similar position, irrespective of our broader attitudes towards the Bill as a whole. As such, I am not suggesting that my amendment would cover all aspects.

There is reference in this amendment to one area that we need to get our heads around: how the independent advocate is selected and from where they can be drawn. In the interest of time, I will restrict my remarks purely to my amendment and let others make the case for theirs. My amendment would ensure that there is the availability of an independent disability advocate with “appropriate expertise”—that is as close as I was able to get to defining this—which must be provided by the commissioner for any disabled person within the definition of Section 6 of the Equality Act 2010.

[Lord Falconer of Thoroton (Lab)]

Could the noble Lord indicate which amendment he is talking to?

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I will make no other comments on the other amendments in the group, which have not had technical drafting support from officials. Therefore, further revision and corresponding amendments may be needed to provide consistent and coherent terminology throughout the Bill.

[Lord Falconer of Thoroton (Lab)]

I am greatly obliged.

I will go through the amendments but, before I start, it is clear, as I said when I introduced my amendment, that the purpose of the independent advocate is as set out in my Amendment 548A. The job of the independent advocate is to

“represent and support a qualifying person in connection with … understanding the options available to the qualifying person as regards end of life care, or … anything done under this Act, by or in relation to the qualifying person”.

Just to answer the question from the noble Baroness, Lady O’Loan, as to what is meant by

“anything done under this Act, by or in relation to the qualifying person”,

the independent advocate can provide help on every aspect of it—for example, assisting in any representations that person wants to make or getting in touch with somebody that the person wants to help them make a decision. It does not envisage assistance in the last act, which is taking the substance, because it is clear in the clause that that needs to be done by the person alone.

The following words,

“anything done under this Act, by or in relation to the qualifying person”,

are used in addition to “understanding the options” because, whenever someone is going through a process, they may well understand it, but they may want help with, for example, preparing documents, filling in forms or working out whom they need further advice from. That is the relationship there. I also echo what the noble Baroness, Lady Cass, said: the purpose of the independent advocate is not to be an independent advocate for assisted dying; it is to help the person going through the process to understand the process and to come to their own decision. Can I move on to—

[Baroness Finlay of Llandaff (CB)]

Can the noble and learned Lord clarify the support? If the lethal drugs are there and the person feels that they cannot take them in the form that they are presented, is the independent advocate to be involved in any alteration of the preparation, such as crushing tablets or heating up substances that might make it easier for them to be swallowed?

[Lord Falconer of Thoroton (Lab)]

Absolutely not. Indeed, the way the Bill is drafted makes it absolutely clear that the independent advocate is there to assist in the process of obtaining the consents and making sure that the person, as they go through that process, understands the whole process. The people to whom the amendment seeks to provide the assistance of an independent advocate are defined specifically as people with a mental disorder under the Mental Health Act or people, as I have gone through already, with particular difficulties understanding, communicating or using or weighing that information.

I will pick up the point that the noble Baroness, Lady Cass, raised: if someone has a difficulty in understanding or retaining information, it cannot be envisaged that they would have a firm and settled view. I broadly share that view—but remember that the independent advocate comes right at the beginning of the process. If there are question marks in people’s minds, people should have an independent advocate. It may very well be that, if someone cannot understand relevant information, they cannot possibly have a clear and settled view. I do not think that they should be deprived of somebody to help them through the process right from beginning. That is why the range is there—because it takes place right from the beginning. I also express gratitude to the noble Baroness, Lady Cass, for broadly supporting the approach that we have taken on the words “independent advocate”.

I will go through the particular changes. First, in her Amendment 168, the noble Baroness, Lady Grey-Thompson, states that everybody should have an independent advocate right from the start. No, I do not think that that is right. An independent advocate should be restricted to those who are qualifying persons, because that is what the role is trying to deal with.

Amendment 300 says there should be an advocate for disabled people. That is also reflected in Amendment 553B, which refers to anybody with a disability under the Equality Act. Again, I say no. The purpose of the independent advocate is to help somebody who has an understanding difficulty or a mental health problem. We have therefore restricted entitlement to an independent advocate to the specific group of people who have an understanding difficulty. I was also struck by the point made by the Minister that very many people who are terminally ill—for example, with cancer—would fall within the category of “a disabled person”. It is not intended that everybody who qualifies needs an independent advocate.

I have dealt with the amendments on the purpose of the independent advocates. I have dealt with the questions raised by the noble Baroness, Lady O’Loan, on what the role will be, including in relation to the word “or”.

A point was made about consulting bodies—I cannot remember who made it; perhaps it was the noble Lord, Lord Jackson—and that we should consult before making regulations under my Amendment 549(2)(b). Section 55 gives the Minister power to consult with anybody he or she thinks appropriate, and that is probably okay in relation to that.

The noble Baroness, Lady Coffey, proposed an amendment that would require that no independent advocate could deal with more than 10 cases in a year. I do not see that that is a sensible or necessary provision. Many people who are qualified as independent advocates will be doing this full-time. I do not see why the number should be restricted to 10.

The noble Lord, Lord Goodman, suggested that the regulations should be subject to an affirmative resolution. I agree. My Amendment 862A does that.

The noble Lord, Lord Gove, spoke to the amendments tabled by the noble Lord, Lord Frost, who we are very happy to see in his place. We had had bad news that he was not available before 6 pm, so we are very glad to see him now. His amendments were ably advocated for by the noble Lord, Lord Gove, and the noble Baroness, Lady Lawlor. I am against the proposal that he is making. The proposal, as I understand it, is that where the registered medical practitioner says that they are not willing to conduct this primary discussion—obviously, the main reason would be because they were against it—we should set up a group of neutral advisers for this specific group, to which you have to be referred for the purpose of getting another Clause 5 conversation.

Noble Lords will recall that the Clause 5 conversation has to be conducted in a way that gives rise to all of the options. The preliminary discussion—the explanation to the person—must not be conducted in isolation, referring only to assisted dying, but must refer to all the options, the prognosis and the treatment. What is being proposed, as I understand it, is that a system of neutral advisers should be set up for when somebody refuses to conduct that consultation so that the person is not sent to somebody who might be biased. Remember, this is taking the person from somebody who refuses to do the preliminary discussion to somebody else. I understand the point, but that seems both unnecessary and inappropriate.

[Baroness Lawlor (Con)]

Say we have a medical practitioner who does not, for the reasons the noble and learned Lord has given, want to discuss this. What is to make sure that the person, the organisation or whatever it is, the vague entity under the Bill, to which the person will then be referred, is not part of a, if you like, mafia of employees—because it does not necessarily have to be a doctor to whom the person is referred—who are in the vanguard of protagonists of assisted dying? This is the concern that that seeks to deal with in a state service.

[Lord Falconer of Thoroton (Lab)]

What I understand the noble Baroness to be saying is that a doctor who will not conduct the conversation because, for example, he or she is against it on conscience grounds, might refer somebody to what she describes as a pro-assisted dying mafia. First, that seems to me to be unlikely. Secondly, the Bill cannot prevent people talking to anybody they like about assisted dying. We have free speech in this country. Thirdly, the Bill provides that before you can have an assisted death, you have to have a Clause 5 conversation, which requires the doctor—legally—to put every option before you. What is being proposed is a network of neutral advisers to ensure that before you get to the second Clause 5 doctor, you have not talked to somebody who might be pro it, who you are not prevented from talking to anyway by the law. No, I am not in favour of it.

[Baroness Grey-Thompson (CB)]

I thank all noble Lords for the debate this afternoon and the noble and learned Lord for explaining his amendments. I think the answer to the problem that we are trying to solve is somewhere in the middle of this group of amendments. I still have a level of concern about whether an individual knows what they are saying yes or no to with the independent advocate and their understanding of the information that they are given. I would be very concerned if it turned into some sort of tick-box compliance in terms of someone’s understanding.

I thank the noble Baroness for her confirmation that, under the Equality Act, someone with cancer or leukaemia would count as being disabled. It was not my original intention for everybody who wanted to enter this process to have somebody independent alongside them.

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[Baroness Merron (Lab)]

My Lords, The Government do not have major workability concerns with Amendments 175 and 384, tabled by the noble Lord, Lord Moylan, whom we are very pleased to see in his place; long may he continue to be there.

I will say a few words about clinical practice, which may be helpful in addressing some of the points raised, including those just now by the noble Earl, Lord Effingham. Most of the questions were really about the Bill and are therefore matters for the sponsor, but I will make a couple of points about clinical practice. It is rare for a clinician to base prognosis on a median life expectancy. In addition, explaining the data used is not common clinical practice. I hope that is helpful to noble Lords.

The issues raised are rightly for noble Lords to consider and decide. Of course, that means that the way the amendments are currently drafted may require further consideration to be fully workable, effective or enforceable.

[Lord Falconer of Thoroton (Lab)]

My Lords, can I share everybody’s genuine pleasure that the noble Lord, Lord Moylan, is here? Can I not congratulate him on telling us about it? I would have done, but he told me he did not want it, so I respect his wishes. I thank my noble friend Lord Rooker for being willing to share his experience of the death of his first wife. I also associate myself with my noble friend Lady Royall; from personal experience, one should not feel that one has got some obligation or is in some way defective if one dies quickly of cancer or takes a particular attitude. We should not be censorious one way or the other as to what attitude people take when confronted with a terminal illness. How would we all react when confronted with it? We probably do not know.

First, we have had a debate about the six months, and I am incredibly unkeen to revisit the six months because I do not think that that was the frame within which the noble Lord, Lord Moylan, tabled his amendment. His amendment is about what is to be told to the patient rather than whether six months is right—I am gratified that the noble Lord, Lord Moylan, is nodding. I will focus on the issue: how should the patient be told? His amendment is in Clause 5, which is about the preliminary discussion. It requires the doctor conducting the preliminary discussion to discuss the person’s diagnosis and prognosis. It requires the doctor to refer to any treatment available to the patient, and the likely effect of the treatment, and it requires them to go through

“all appropriate palliative, hospice or other care”—

it is not just palliative and hospice care; it is other care as well—

“including symptom management and psychological support, and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion”.

It is a detailed discussion about the prognosis, diagnosis and likely effect of treatment.

I was struck by the speech made by the noble Baroness, Lady Watkins. The idea that you are told you have six months to live, and that is it, is extraordinarily unusual. The idea that this happens is very unlikely; that it could happen in this context seems to me to be extraordinarily unlikely. Noble Lords will be aware that, in Clause 7, there must be a record kept of this conversation. The iniquity that one is trying to deal with seems to me to be unlikely to arise.

Should we be putting into the Bill the specific statistical material that has to be given? If you are relying on a median or an average, do you have to say that you are doing that and what the variations are? No, I am not in favour of that. There is a power for the Secretary of State, by codes of practice or guidance, to give indications as to how it should be dealt with. I trust doctors more than many people in this debate. It would be unhelpful to put in words such as those in the amendment into the Bill, so I am against the amendment.

On a completely separate issue, we have debated the question of the prognosis and the reason for the six months. I strongly adopt the words of the noble Baroness, Lady Noakes, that this is not the view of one person; this is the view of two doctors and a panel of three. This is not just a question of one prognosis and it is over. That is an issue that we dealt with previously. I am delighted that the noble Lord, Lord Moylan, was in a position to move the amendment. I am sorry to say that I do not agree with it.

[Baroness Finlay of Llandaff (CB)]

Does the noble and learned Lord recognise that, if the earlier part of the Bill and this clause had compatible wording over the progress and disease trajectory of that individual patient, that would make it easier for patients to make a decision and much easier for doctors having those conversations, whether it is the first conversation, the assessment or the independent doctor? It would also allow changes in medical science, which happen very rapidly, to mean that people were not stuck with the wording in the Bill. It would allow changes in information giving. So will the noble and learned Lord consider revisiting the word “prognosis” and clarifying it better in the Bill?

[Lord Falconer of Thoroton (Lab)]

I did not quite understand the question, but I think the noble Baroness is going back to her amendments that we discussed previously about how you have to have regard to the progress of the disease. I think she is saying that you have to have the preliminary discussion, the first assessment and then the secondary assessment, and therefore you have time—I see the noble Baroness shaking her head, so perhaps she could raise it with me separately so that I understand it.

[Baroness Finlay of Llandaff (CB)]

I would be delighted to raise it outside the Chamber; it was a little more complicated than those three points.