Terminally Ill Adults (End of Life) Bill

Lord Scriven Excerpts

Friday 12th December 2025 Lords Chamber

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

My Lords, I am grateful to noble Lords for their contributions on this group. To echo the comments of my noble friend the Chief Whip, the Government remain neutral on the principle of assisted dying and on the passage of this Bill. Whether the law in this area should change is a matter for Parliament. As before, any comments that I make will focus on amendments where the Government have major legal, technical or operational workability concerns.

This group relates to deprivation of liberty and eligibility for seeking an assisted death. I thank the noble Baroness, Lady Finlay, and my noble friend Baroness Keeley for tabling the amendments in this group. Amendments 16 and 114, tabled by the noble Baroness, Lady Finlay, seek to prevent individuals who have been deprived of their liberty within the last 12 months under the Mental Capacity Act being eligible for an assisted death. In the case of Amendments 16A and 114A, tabled by my noble friend Lady Keeley, someone would be ineligible as a result of an application for deprivation of liberty having been made, irrespective of the outcome of that application.

Noble Lords may wish to consider that the amendments would introduce a departure from the Mental Capacity Act framework by linking a lack of capacity in one area—capacity to consent to care and treatment arrangements that amount to confinement—to lack of capacity in another area, that being capacity to make the decision to end one’s life. Amendments 16A and 114A go further and would make a person ineligible on the basis that only an application for deprivation of liberty had been made. This may result in a situation where the application was unwarranted, but that person would still be ineligible for assisted death.

Regarding the European Convention on Human Rights—

[Lord Scriven (LD)]

I want to ask what the Government’s view is. This actually changes the whole basis of the Mental Capacity Act. The Mental Capacity Act concerns existing capacity. These amendments move into retrospective or future capacity, which is completely incompatible with the Mental Capacity Act. Do the Government have any views about that significant change of capacity and the test of the capacity of an individual?

[Baroness Merron (Lab)]

I hope that the comments I have made already indicate where we are concerned, rather than going into further areas, but I would be very happy to look at the noble Lord’s point.

I also wish to raise points relating to the European Convention on Human Rights. As before, these are potential risks that I am raising to inform noble Lords’ decision-making, but I wish to be clear that the underlying policies are rightly a matter for Parliament. Noble Lords may wish to note the requirement for an objective, proportionate and reasonable justification to treat those who have previously lacked capacity in a different context differently from others who have not. Noble Lords may also wish to consider whether there is justification for different treatment where an application for deprivation of liberty has been made, but not necessarily completed or approved. In the absence of justifications that are sufficient to persuade a court, the amendments may conflict with ECHR obligations, specifically Article 14 on the prohibition of discrimination, when read with Article 8.

I confirm to noble Lords that, if a court finds that primary legislation is incompatible, it may make a declaration of incompatibility. This does not invalidate legislation. As is usual, the Government would then consider—

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[Lord Scriven (LD)]

It is not an assumption. It is in the Bill that if the co-ordinating doctor is not the GP of the person seeking the assisted death, under Clause 10(3)(b)(ii) the co-ordinating doctor has to write to the GP practice to make it aware of the request.

[Lord Deben (Con)]

I agree with that, but the point of the amendment from the noble Lord, Lord Rook, is to tie together a period of someone being in the National Health Service. I agreed with the comments made by the lawyers about “normally resident”, rather than other words. The noble and learned Lord who introduced the Bill might consider that this amendment will give some confidence to those who had a concern because it means that “normally resident” has been underlined by the fact that someone has in fact been in a general practice of the National Health Service. I cannot see that it does any harm, given that there is a year in any case. It underlines what the noble Lord reminded us of: the idea that this should be a part of the normal way in which people are dealt with.

I do not like the Bill very much, but it is our job to make it work. To do that, it is more valuable to fix it within the National Health Service as we have it, rather than trying to invent a service that we might well like to have—and I am old enough to remember when we did have it. Let us not pretend, when things are not as they ought to be.

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[Lord Harper (Con)]

I am trying to make some comments on the amendments. Let me do that and then, if I have time—I am very careful to keep my remarks to less than 10 minutes, which is the guidance in the Companion—I will address the noble Baroness’s points. She is right that, when I was Government Chief Whip, she was my opposition and we had a very good working relationship, which I want to continue in this House.

What has come out of the debate is a general view from everybody, whatever their view on the Bill, about the importance of the relationship that people have with their general practitioner, whether it is an individual or, as the noble Baroness, Lady Gerada, said, a multidisciplinary practice. That is a very important point. The amendments that have been tabled to Clause 1 are about the eligibility criteria for whether someone is able to make a request for an assisted death.

The flaw in the amendments—I support the idea behind them, but I do not support them—is that they do not make an appreciable difference to the safeguards in the Bill. When the noble and learned Lord, Lord Falconer of Thoroton, made some remarks in this debate, he put his finger on it: there is no requirement in the Bill for the GP or the team at the GP practice to be the doctor who makes the assessment about whether the person has the capability to make this decision or not. That, as was said by the noble Lord, Lord Scriven, is the role of the co-ordinating doctor, who does not need to have any relationship with the patient at all.

When the noble and learned Lord, Lord Falconer, looked at this issue before, there was a report from the Demos assisted dying commission, which the noble and learned Lord chaired. Its recommendations recognised the need for

“a doctor who … knows the person well and supports the person and their family”.

The report also said that that doctor who knows the person can better assess whether the request to die is a cry for help, a sign of poor care or a result of coercion, and that

“if an assisted death was to go ahead, the first doctor should be responsible for arranging support for the patient and their family during and after the assisted death”.

It envisaged that

“the first doctor would have a greater level of involvement”

and

“an established relationship with the person requesting this assistance, and be familiar with their personal history and family context”.

That seemed to be the general view of all of the noble Lords who have spoken.

The problem is that there is no requirement in the Bill before us for the GP or multidisciplinary practice to be the co-ordinating doctor or even to be consulted before the co-ordinating doctor makes the first assessment. It is absolutely true, as the noble Lord, Lord Scriven, said, that, when the co-ordinating doctor has made the assessment, he or she has to send that to the GP practice. However, as the Bill is drafted at the moment, the role of the GP practice is to act as a postbox, log the report—I see the noble and learned Lord, Lord Falconer of Thoroton, nodding—and pop it on somebody’s medical records. There is no requirement or duty on that GP practice to read the report, to make an assessment of the decision of the person with whom they have a relationship to die or to do anything about it at all. That is the flaw in this.

The problem with the amendments on the eligibility criteria that we are considering is that, if they were all adopted—this is an administrative point—they would not ensure that that knowledgeable individual or practice with whom the patient has a relationship has any role whatever in making this important decision, involving the family or consulting anybody at all. That is the flaw.

This has been a valuable debate because I think it has demonstrated—and I think the noble and learned Lord, Lord Falconer, recognised in his earlier comments —that there was value in that relationship, and I am not surprised by that, given the conclusions that the commission he chaired came to, but the problem is that that is not reflected in the Bill at all.

If I may, I will conclude on this point before I address the remarks of the noble Baroness, Lady Winterton. Why we have these debates, and the reason for hearing from noble Lords with opinions, is because it highlights the flaws that exist in the Bill. The point of this process is that that then enables the sponsor of the Bill and all noble Lords to listen carefully to the debate and to bring forward improvements on Report.

I hope that, in his response, the noble and learned Lord, Lord Falconer, will draw on the concerns that have been highlighted and can indicate his approach. If he is minded to bring forward amendments that deal with some of these things, that clearly means that other people do not need to. If he indicates he is not minded to do that, then other noble Lords can bring forward amendments to deal with it, which can then be debated and voted on at Report stage. That is the point of our process and why we debate these things in the Chamber: so that everybody can hear the debate and the points. It is a better way of improving the legislation than having lots of private discussions to which most of us are not party.

What I would say to the noble Baroness, Lady Winterton—

[Lord Scriven (LD)]

My Lords, I think there is a misconception by the noble Lord on how modern general practice works through the electronic patient record. If the report goes to a GP, like any report does, it is clinically coded, and there would be a flag on the patient’s electronic patient record that would indicate to the GP and anyone in that practice that an assisted death had been requested through the co-ordinating doctor. It would not, to use the noble Lord’s words, just be postboxed; it would be automatically registered on the electronic patient record, and a flag would come up for anyone in the GP practice to see what was happening.

[Lord Harper (Con)]

That is a very helpful intervention, and I absolutely accept that. I understand that that is the way it works. Certainly, with the way the NHS works now, you can go on to the NHS app, which many noble Lords may use, access your own patient record and see all those various notifications registered. He is absolutely right that a flag would be raised; the problem is that there is no requirement in the way the Bill is drafted at the moment for that GP practice to do anything as a result of that flag being raised—none at all. I think there should be. We can come on to that, as we progress through the Bill, when we get to Clause 10. That is the point I was trying to raise.

I do not want to go over my time, but I will deal briefly with the points by the noble Baroness, Lady Winterton. I agree with her. It is right that the House scrutinises the Bill properly. If you look at the number of days of debate in the House of Commons, I think there were 11 days in Committee. If you look at the normal way this House conducts itself—because we tend to do a more detailed level of scrutiny than the House of Commons—you would expect, as a rule of thumb, about 16 days of debate in Committee; then we normally have 50% of that on Report and at Third Reading. I do not disagree with her. It may be that this Bill requires more time, and that is clearly a discussion for the sponsor to have with the Government Chief Whip about making that time available. But I think the wrong response is for us to not do our jobs properly, not scrutinise the Bill and not make sure that it is a properly fit piece of legislation to get on to the statute book. That would be the wrong response. If we were to do that, we would be failing in our duty to legislate properly for the people of this country.