Terminally Ill Adults (End of Life) Bill

Lord Hamilton of Epsom Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

[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.

--- Later in debate ---

Separately from those issues, the noble Lord, Lord Carlile, raised the effect on, for example, Christian-based care homes and their legitimate entitlement under Clause 31 to withdraw. Perhaps I may deal with that when we get to Clause 31 rather than now, because there are a series of amendments that deal with it.

[Lord Hamilton of Epsom (Con)]

This is the second Friday we have had where the target has been 10 groups of amendments and we have come well below half on both those days. If we go on scrutinising the Bill in the way we have been doing, it is inconceivable that it will ever reach the statute book, so is it not time that the noble and learned Lord really considered what he can salvage from the Bill, where there is agreement on both sides of the Committee, so at least something will get through that improves the lots of people in this country?

[Lord Blencathra (Con)]

My Lords, once again, this has been a good little debate, with more noble Lords participating than I expected. The whole Committee admires the noble Baroness, Lady Hayter, for the way she described her husband’s condition and the extreme care, and possibly good luck, she has had in finding an excellent home for her husband. When we were in the House of Commons, we could never tell these personal stories about our disabilities, because we would be regarded as showing a weakness and therefore not suitable to fight for our constituents. The wonderful thing about these debates over the past few weeks is that noble Lords from all sides have been able to relate stories about their own disabilities, afflictions and illnesses and those of their close relatives, which has added a tremendous amount of wisdom and compassion to our debates.

I say to the noble Baroness that my amendment does not seek to throw anyone out; it does not excuse anyone in a care home from getting treatment. We just want extra care for them. As my noble friend Lord Deben and the noble Lord, Lord Carlile, said, there are good care homes, bad care homes and downright ugly care homes. Our amendments are designed to deal with those that are not quite up to scratch.

The noble Baroness, Lady O’Loan, made the point that dementia sufferers are even more vulnerable. The amendments from me and from my noble friends Lady Eaton and Lady Lawlor are different, but the thrust is still the same: we are suggesting that a bit more care is necessary to determine capacity in care homes.

I must come to the important point made by the noble Lord, Lord Carlile, backed up by my noble friend Lord Deben, about the ECHR. I am a member of the Council of Europe. I have been elected to a specialist committee on observing elections in former Soviet Union countries. I was on the committee that elected judges. I am pleased to say that we elected—I was one of those who voted—a superb English KC, who is just retiring this year, to be a judge. I am also a substitute on the election committee. I totally support the ECHR. What I am critical of are some of the judgments we have had in the United Kingdom from some of our immigration judges, who I do not think have properly read the ECHR. I have no problems with the ECHR itself. I am totally in support of it and the principle—I am just worried about some of the judgments.

The other point that the noble and learned Lord made—he ended with this—is that responsibility for this must not rest with care homes alone, and I agree entirely. The noble Baroness, Lady Finlay, made the point that some care home staff are very worried about operating this. The noble Lord, Lord Carlile, made a point about Mission Care and Christians in care homes feeling that they could not work it either. My noble friend Lady Lawlor made the simple point that a higher bar is necessary for care homes. The noble Baroness, Lady Smith of Newnham—to whom we are grateful for revealing her father’s story—stressed that the vagaries of cognitive decline vary depending on the medication that one is on, and I have experience of that.

The noble Baroness, Lady Fox of Buckley, said that she did not want to talk about some of the horror stories in care homes. None of us wants to do that, although every other month we read about some of the appalling treatment that happens, particularly to those suffering from severe dementia. She said that there is a social care home crisis, and that is right. She was spot on about ticking the food boxes.

A few years ago I was in St Thomas’—early on in my MS days, when I had a relapse—and there was an old boy in a bed in the corner, aged 82. At that time we would tick the boxes for what we wanted the next day. Do Members recall that the Government appointed Mr Loyd Grossman to review menus at NHS hospitals? He did review them, but he just wrote them in fancy language. The choice for one morning was ground beef, suffused with basil and scented with carrot juice—or something—and chopped potatoes. This old boy did not have a clue what it meant. I managed to get to him and say, “It’s mince and tatties”, and he was able to understand it. The nurse said, “Oh, you don’t want anything to eat, Mr Smith”. He just said, “Porridge, porridge”. She said, “Oh, we can’t give you porridge. There is only the choice of mueslis”. I will not labour the point any further, but the same thing can happen in care homes, as the noble Baroness, Lady Fox of Buckley, said. She asked, in conclusion, how can one decide capacity between a patient who is on a good day and a patient who is on a bad day? People in care homes need extra special measures to determine capacity.

My noble friend Lord Wolfson of Tredegar made an excellent point about care homes: there are good ones and bad ones. He asked the Government to spell out what the consequences would be of my noble friend’s amendment and my amendment, and what the Government think about it.

I say to the Minister that I am tempted to put down an amendment to the Animal Welfare Act to protect the poor rabbit that has been pulled out of the Government’s hat to say that all our amendments are contrary to the ECHR.

Finally, I say to the noble and learned Lord, Lord Falconer, that our amendments may not be perfect, but the consensus from all noble Lords who have spoken, apart from the noble Baroness, Lady Hayter, was that something more needs to be done for care homes—a little bit of extra protection is necessary. When we were dealing 18, 21 and 25 year-olds, the noble and learned Lord said that we need to think about a bit of extra protection for them. He was right, and I look forward to seeing his amendment on Report on that matter. But the same goes here. We need a bit of extra protection for people in care homes, for the various reasons advanced by noble Lords. Having said that, I look forward to seeing his amendments on Report—and if not, we will table some ourselves. In the meantime, I beg leave to withdraw my amendment.