Terminally Ill Adults (End of Life) Bill

Lord Shamash Excerpts

Friday 14th November 2025 Lords Chamber

It is being portrayed as if you just take one little tablet and it is a Hollywood death. I am afraid that the evidence is not like that; we will come on to that later on. So I am concerned that, unless we make sure that people are able to make good decisions, they will not be able to. I beg to move.

[Lord Shamash (Lab)]

My Lords, I listened very carefully to what the noble Baroness, Lady Finlay, said. She has put an enormous amount of work into the background of this Bill. One thing she did not address was the wording of the change from “capacity” to “ability”. It seems to me that the Mental Capacity Act runs like a thread right through the Bill to where we get to the issue of consent and what have you.

It may be that the Chief Medical Officer, Chris Whitty, considered that in his comments. The House might be grateful to receive, or hear, extracts from the Mental Capacity Act, which talks initially about an impairment; in this case it would be an illness. It talks about two tests: the diagnostic test and the functional test. The diagnostic test concerns being ill. The functional test is to understand the relevant information about the decision, including the consequences of each option. The second one is about retaining the information—holding on to the information long enough to make the decision—and then using or weighing the information as part of the decision-making process, and then being able to communicate that decision. That seems to me to be clearly about capacity, not ability, and I invite the noble Baroness to withdraw her amendment.

[Lord Pannick (CB)]

My Lords, I agree with the noble Lord, Lord Shamash. The noble Baroness, Lady Finlay, speaks with enormous authority based on enormous experience, but we are considering an amendment which seeks to replace “capacity” with “ability”. As Clause 3 of the Bill makes very clear, “capacity” is the term used because there is a well-established, tried and tested scheme under the Mental Capacity Act 2005.

By contrast, the word “ability”, which the noble Baroness seeks to insert, is inherently uncertain; it has no defined legal meaning. There are later amendments to this Bill, to Clause 3, which do seek to address the concept of capacity in the context of this Bill. They are very important amendments and I look forward to our debates on them—but to insert “ability” as the governing concept would simply cause confusion.