Terminally Ill Adults (End of Life) Bill

Lord McCrea of Magherafelt and Cookstown Excerpts

Friday 14th November 2025 Lords Chamber

[Lord Shinkwin (Con)]

My Lords, I thank the noble Baroness, Lady Finlay of Llandaff, for her amazing dedication to her patients. That is beyond question. I hope we are united as a House in paying due respect to that fact and also to the fact that her professional experience is a tremendous asset to this House.

The noble Baroness, Lady Finlay, spoke of her professional experience, and I will speak very briefly of my lived experience on the other side of the table—or the bedside—as a patient. She mentioned Dame Cicely Saunders and the reference to total pain. I simply say that I have been there. My disability has taken me there far more times than I would like to remember. It is awful. The bottom falls out of your world, and your capacity to think clearly, rationally and normally evaporates. So I simply say that it is crucial that patients have the ability to choose: the choice between assisted death and specialist palliative care—a choice that they do not currently have.

I simply finish on this point. Other noble Lords have mentioned the Royal College of Psychiatrists. I ask the Committee to take note of the fact that the Royal College of Psychiatrists states that applying the Mental Capacity Act to the decision to end one’s life is an entirely novel test—in “uncharted territory”, with “no experience or precedent”.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, earlier on in the debate, there was a discussion concerning members of the committee, on who was or was not called, or who was denied the right to be called to it. I suggest that the straitjacket of the time this House allocated probably did not allow the relevant committee the appropriate time to call everyone that it thought was appropriate. It ought to have been given more time, but it seems that it had to be rushed.

Concerning the Mental Capacity Act, Margaret Flynn, chair of the National Mental Capacity Forum, said it was designed to protect us

“when others start to make decisions about our lives … Assisted dying was not on the table during the Law Commission’s consultation which resulted in the MCA”.

Therefore, the suitability of the Mental Capacity Act 2005 as a test for a decision to end one’s life is a major source of debate. I believe the many experts and professionals arguing that it is insufficient for this specific irreversible decision.

The MCA was not designed for assisted dying. It was created to safeguard people who lack capacity in decisions about their care, treatment or finances. Assisted dying was not on the table during the Law Commission’s consultation. The Royal College of Physicians, as the noble Lord said a moment ago, said that applying the MCA to the decision to end one’s life is an entirely novel test in uncharted territory with no experience or precedent. It is a very low threshold. The Royal College of Physicians argues that assessing a person’s mental capacity to decide to end their life is an entirely different and more complex determination, requiring a higher level of understanding than assessing capacity for treatment decisions.

[Lord Scriven (LD)]

I have listened very carefully to the noble Lord and a number of others. I am still struggling to understand what the higher test of ability would be, over and above the Mental Capacity Act. Will the noble Lord let the House know what that higher test is that people would have to go through on ability rather than capacity?

[Lord McCrea of Magherafelt and Cookstown (DUP)]

The noble Lord knows that I am not a proposer of the change of words. I am dealing with capacity. Therefore, I am also dealing with the fact that professionals within the field have stated that to use the Mental Capacity Act for a decision to end one’s life is an entirely novel test and uncharted territory for which there is no experience or precedent. That is not my statement; that is the statement of professionals within the field. They say also that to decide to use it for the decision to end one’s life is an entirely different and more complex determination requiring a higher level of understanding than assessing capacity for treating decisions.

Capacity can fluctuate in terminally ill patients due to physical fatigue, illness, medication or delirium, making the irreversibility of the decision risky under this framework. Therefore, I ask this Committee to think carefully in trying to base its whole argument on this being good legislation because mental capacity is the deciding factor.

[Lord Deben (Con)]

I wonder whether I can help the Committee. I think we may be discussing two rather different things, so I suggest that we decide which of them to discuss.

There is the discussion as to whether the word “capacity” really includes all the things that people are pressing for when they use the word “ability”. That is the point that the noble Lord, Lord Pannick, was clearly making when he expressed the nature of the word “capacity” as used in law. It is perfectly understandable that people would want to say, “Here is a word that we use. It’s a word which is defined and has been defined over a long period of time. Therefore, it’s stood the test of time”. I understand the noble Baroness, Lady Andrews, who rightly mentioned the amount of time that had been taken to deal with that.