Terminally Ill Adults (End of Life) Bill

Baroness Cass Excerpts

2nd reading
Friday 12th September 2025 Lords Chamber

[Baroness Cass (CB)]

My Lords, like others, I thank the many people on both sides of the debate who have written to me to share their views and deeply personal stories. For the sake of transparency, I will say that, on a personal level, I am supportive of the principle of assisted dying in very narrowly defined circumstances. However, I am deeply concerned about the Bill as it stands and do not consider it either safe or deliverable. I will focus on just one aspect.

As part of the consent process, the Bill requires three different doctors—the one undertaking the preliminary discussion, the co-ordinating doctor and the independent doctor—to discuss the primary diagnosis, prognosis and treatment options, as well as palliative care options, including symptom management. The latter two doctors must also assess for coercion, domestic abuse and capacity, as well as discussing the assisted dying process. I believe I am the most recently retired medic in this House, having given up my licence to practise last month.

Throughout my recent review, I devoted much time and discussions to thinking about meaningful informed consent. Back in the day when I was a junior houseman, we were expected to take consent without knowing much about the relevant procedure or how adequately to answer patients’ questions. We have come a long way since then. Options are explained to patients first-hand by clinicians who are specialists in the topic they are discussing, because it is impossible for other doctors to be up to date with a rapidly evolving range of treatments. You may assume that in the case of those seeking assisted dying, this has already been done by the treating doctor, but when someone imparts a serious diagnosis, you often blank out everything that is said thereafter and may be fearful of asking additional questions.

We know nothing about the background and qualifications of the three doctors who are expected to fill this potential gap. The latter two are at least supposed to be able to examine the patient’s medical records and speak to treating professionals, but written records are rarely adequate as a basis for such discussion and there are major complexities in doctors external to an organisation accessing electronic records. Furthermore, the treating doctor may not be available in a timely way. As for advising on palliative care options, the only professionals who can explain the full range of symptom-control measures are palliative care consultants.

In other words, the co-ordinating and independent doctors are being asked to take on two wholly different roles. The first is to substitute for a full multidisciplinary assessment involving the team managing the primary diagnosis, a palliative care specialist and, in some circumstances, a psychiatrist and a social worker. I submit that such an MDT assessment should be a core NHS function. It should identify the patient’s main concerns and fears and share information about possible options, ideally in a family context. This should happen up front, before discussions about an assisted death, rather than at the end of the process, when it is far too late to generate a trusting relationship.

The second role is the process of consenting to assisted dying, which should be considered separately once other options have been discussed and rejected. For the reasons that the noble Lord, Lord Lamont, gave, I believe that this should be through a service external to the NHS.

I have worked in MDTs throughout my career, and the key is respecting the unique skills of colleagues and listening to their views, so I have formed my views on this topic on the basis of not just my experience but, in large part, by listening to organisations representing key professionals: GPs, psychiatrists, palliative care consultants and physicians. I strongly encourage noble Lords to take their views very seriously in further deliberations, and for that reason I will be supporting the amendment from the noble Baroness, Lady Berger.

Terminally Ill Adults (End of Life) Bill

Baroness Cass Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I am a little confused about this debate. The debate is on Amendment 2, which would replace “capacity” with “ability”, but we have heard hardly anything about ability. We have heard from the noble Lord, Lord Pannick, who said that it would replace a defined term with an undefined term, which is an issue we should take seriously, but most of the debate has been about whether the definition of “capacity” in this Bill—that in the Mental Capacity Act—is the right one to use. We are not debating whether “ability” is a better term; I hope that we can do that and move on to some other important areas in this Bill.

[Baroness Cass (CB)]

My Lords, I declare my interests as trustee of a children’s hospice. I also talk as a retired doctor with experience of looking after terminally ill adults and children. However, I also talk as somebody who is pretty familiar with conflict and polarisation, having been attacked and undermined on social media. I know that everyone in this Committee is committed to improving this Bill, and so I was somewhat dismayed by the article in the Times, which I felt led to the targeting, unfairly, of some of my noble friends who have been committed to improving this Bill and have been working hard to do so. I am not sure what the objective of that was, but it is regrettable.

People have asked about ability per se, so I talk now as a developmental paediatrician. We generally talk about abilities as skills that we acquire, whether it is a baby learning to walk or talk, or other skills that are more sophisticated. The skill that allows us to make reasoned judgment is the development of what is called the executive function—I am sure that noble Lords are all aware of that. That sits in the frontal lobe of our brains. As we well know, teenagers are pretty ill developed in that respect: they can talk with great authority about why it is extremely dangerous to drive too fast and break the speed limits and be very convincing on how they understand that and then, the next day, do exactly that, particularly under peer pressure. That judgment is something that develops but can also be lost, as we well understand, when somebody sustains a head injury or maybe has a brain metastasis that impacts that area, or during dementia; our judgment deteriorates.

The word “ability” allows us to think about people who might never develop that ability because of a problem in executive function, which is common in some people with autism. They may be well able to repeat what they have read online or heard from peers, but they have not fully understood and processed it. Some people with autism are of course well able to make those judgments and some are not: it is complicated, as my noble and learned friend pointed out, and there is perhaps an unwarranted confidence in doctors’ abilities to do that. It is very much a multidisciplinary team effort and one that requires somebody who knows the person well, or maybe multiple assessments. This is complex and “ability” encompasses a wider facet than capacity alone.

Terminally Ill Adults (End of Life) Bill

Baroness Cass Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

[Lord Shinkwin (Con)]

My Lords—

[Baroness Cass (CB)]

My Lords—

[Noble Lords]

Shinkwin!

--- Later in debate ---

[Lord Goddard of Stockport (LD)]

The noble Lord is on completely the other side of the argument, and I respect his views on that. This Bill has been scrutinised for over 100 hours in the other place. Evidence was taken from over 500 people. This is not just a piece of paper sent up here for us to determine.

[Baroness Cass (CB)]

Regardless of the amount of scrutiny, there are absolute conflicts between intent and delivery. The reason there cannot be trust in how we deliver this in real life is the very point made by the noble Baroness, Lady O’Loan, and the noble Lord, Lord Shinkwin: on the one hand, we are discussing the importance of coercion and of recognising it, yet it has been voted that you cannot ask the person why they want to die. I do not know how you can then possibly assess coercion. Unless you can hear from the person in their own words why they want an assisted death, you cannot even advise on symptom control, let alone on whether they have been coerced. There is the conflict between the intent on page one and what is expected in the delivery. If the Bill has arrived here with that level of conflict between what is on the first page and how it is expected to be delivered, then we change that; otherwise, it is not fit to pass through this House.

[Lord Goddard of Stockport (LD)]

I respectfully accept that position. The problem is that the more I speak, the more I will be intervened on, which is the opposite of what I am trying to do; I am trying to speed the process up.

All I am trying to say is that we all want the best Bill possible. I get that. If that cannot be managed, something else will have to happen. I was only trying to bring in the evidence of three former Directors of Public Prosecutions. One of them, because people had said, “We’ve had no real-life experience”, actually advanced to us, “I’ve got Parkinson’s disease and I’m going to die. I have a terminal illness”. He actually said that to the committee, and added that if the Bill passed he hoped to avail himself of it. That is just one little anecdote from probably the only person who gave evidence who actually has a condition, which he confirmed to us freely. He was not asked to do that.

All I am trying to do is balance the evidence, because a lot of people are quoting evidence. I want to try to redress that a bit and to gently move this on a bit quicker. I have completely failed, because I have been standing up for nine minutes. I apologise to the Committee for taking up too much time.

Terminally Ill Adults (End of Life) Bill

Baroness Cass 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.

Terminally Ill Adults (End of Life) Bill

Baroness Cass Excerpts

Committee stage
Friday 9th January 2026 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I speak as a member of the Select Committee that your Lordships’ House decided to convene at the end of Second Reading, partly because, although I am sure that noble Lords participating in this debate and this legislation will be fully aware of the evidence we took, this debate is broadcast and followed much more generally, so I think it is useful to put on record some of that evidence. We took evidence on palliative care from experts, some of whom oppose the principle of assisted dying and some of whom do not, but almost all raised concerns about the adequacy of palliative care in the United Kingdom.

In particular, following the contribution of the noble Baroness, Lady Brown of Silvertown, I quote— I apologise for reading, but I am reading from our report—Dr Suzanne Kite, president of the Association for Palliative Medicine of Great Britain and Ireland:

“Throughout this debate, there has been a strong consensus that current palliative care provision is inadequate, with many services under threat, and that this constrains choice at the end of life. We advocate strongly for the Government to commit to a national policy to ensure universal access to palliative care that is protected from negative financial impact of the introduction of any AD—assisted dying—service, better safeguards for patients, care workers and organisations and a public awareness campaign about normal dying”.


My first question is to the Minister. I realise that she is representing the Ministry of Justice rather than the Department of Health, but I hope she may nevertheless be able to respond. When we discussed the business Motion in the Chamber yesterday, the noble Lord, Lord Stevens of Birmingham, said that the Minister in the House of Commons had suggested that the Government’s next information about the provision of palliative care would not come until after the assisted dying legislation had gone through Parliament. I think many people, whether or not they support the principle of assisted dying or support this legislation in principle, would feel much relieved if they could believe that palliative care was going to be more equitable across the country and that those in more deprived parts of the country would have the same access to palliative care as those in more affluent parts, because there is a disparity.

For many, there is a concern that the choice of an assisted death, which is what advocates of the Bill say they support, will not necessarily be an unconstrained one. If the choice were, “I have been offered everything, including state-of-the-art palliative care, and I still want an assisted death”, that would be quite different from the current proposals. Clause 5 says that the medical practitioner would need to make clear to somebody in a preliminary discussion all appropriate palliative, hospice or other care that is available. But if there is not adequate palliative care available—we know that 100,000 people are already dying without adequate palliative care—then the choice the medical practitioner is giving will not be a real one.

When I raised concerns with the experts who were giving us evidence on palliative care and whether this was a constrained choice or not, there was very much a sense from Dr Kite that she shared the concerns I had raised about the disparities of palliative care and that, for some people, there would not be a real choice. Her response was:

“I share your concern. Our members share your concern. This is fundamental to our position on the Bill”.


Professor Katherine Sleeman, who is also a professor of palliative care at King’s College London and a member of the Complex Life and Death Decisions group, who is not opposed to the principle of assisted dying, said that my point was

“exactly why the CLADD group has suggested that offering a referral to specialist palliative care is not enough. Everyone who says that they want an assisted death should receive a palliative care assessment, and that would go some way—not all of the way, but it would go some way—to addressing what we know about the inequalities in terms of access”.

In light of the evidence we received, I would be grateful to hear from the noble and learned Lord, Lord Falconer of Thoroton, how he would respond to the amendments in this group about palliative care. They seem to be fundamental to the concerns not just of people who might be opposed in principle to this Bill but of experts who really understand the detail. It is surely the duty of this House to ensure that any legislation passed really meets appropriate standards, and we should be very cautious about supporting legislation that does not ensure adequate access to palliative care.

[Baroness Cass (CB)]

My Lords, I will be brief, because many of the points have been made, but I would really like to make two points. My first point follows the comments of the noble Baroness, Lady Smith, about—I hesitate to use this term—“levelling up”. We know that there is a spectrum of provision available, not just in palliative care but in all the other aspects of care that a dying patient needs, as referred to in Amendment 221 in the name of the noble Baroness, Lady Hollins. I would love there to be the kind of wraparound care within the community that my noble friend Lady Gerada described, but for some patients that is not the case. So, specifying those components that should be available and making them available should be the basic right of every dying patient, particularly one who is carrying as onerous a decision as seeking an assisted death.

But I think the second, and equally important, point about this is front-loading the multidisciplinary assessment, and, ideally, having it clearly written down and held by the patient, which empowers the patient to hold that information and take it with them. Therefore, it facilitates the co-ordinating doctor, the independent doctor and the panel or judiciary process to have available that information from the team who know the patient best, so that they are not having to delay the process by scurrying around in hospital notes or seeking additional information late on in the process, when the patient will inevitably have made a decision, potentially with their family, and a delay due to missing information would be unbearable. So, front-loading is absolutely key to streamlining this process throughout.

[Baroness O'Loan (CB)]

My Lords, I have put my name to nine amendments in this group and I declare my interest as an unpaid trustee of a hospital which has a hospice attached to it.

We are very fortunate in your Lordships’ House to have among us distinguished doctors who have spoken with great experience and understanding of the need for access to expert palliative care when a person faces death from terminal illness. For many people, particularly those in care homes, such palliative care is simply not available. I think of my own mother, who died just three years ago and was in a care home, and for whom such care was provided either by the GP or by paramedics who came and administered morphine—that was not expert palliative care. Many people, if this Bill is passed, will be in exactly the same position as my mother, unless there is change to the current systems. Expert palliative care, as has been said, is unavailable in many parts of the country, and so it is not enough to know that expert palliative care could be available, it must be available. That is the most significant thing.

Terminally Ill Adults (End of Life) Bill

Baroness Cass Excerpts

Committee stage
Friday 16th January 2026 Lords Chamber

[Baroness O’Loan (CB)]

My Lords, it is a privilege to follow the noble Baronesses, Lady Grey-Thompson and Lady Campbell, who articulated for us the suddenness with which those with a disability can move into the category of those for whom death is imminent. It can happen very suddenly, without warning. Their contributions were enormously important to us as we contemplate this.

There is in the Bill nothing that, at present, would make doctors determine that they are able to identify real coercive threats, particularly where the ill person is being subjected to pressure that may be concealed on all occasions where medical and social care staff are available, but the person is afraid to speak because of those pressures. Making a person feel like a burden is abusive, but it is very hard to detect. There is no provision requiring doctors to inquire about those internal pressures. We have heard a lot about them: feeling a burden, financial pressure and lack of adequate NHS resources. Those are pressures that can lead to an inability to conceive of solutions that may exist or to access them. If the Bill is to provide for them, it must state what motivations are acceptable for the state to help someone to end their own life.

I wish to echo the words of the noble Baroness, Lady Smith, because I asked the noble and learned Lord, Lord Falconer, what was meant by saying that a doctor must discuss with someone seeking assisted death the availability of palliative care. I understood him to say that if it is not available, it cannot be discussed and it is not a matter. But why? Why does somebody in that situation, for whom palliative care would provide an answer, not have access to palliative care simply because of where they are? I have to ask the Committee whether it is happy, or even content, that that is a standard which we should accept.

In debating his own Bill on this topic in 2014 and looking at the issue of burden, the noble and learned Lord, Lord Falconer, said that he opposed someone choosing assisted death for feeling like a burden. I therefore ask him today: does he oppose making explicit what he has agreed is implicit in this type of Bill? If not, will he accept these amendments?

[Baroness Cass (CB)]

My Lords, I agree with everyone who has said that we must ask the question: what is the motivation for that individual? I submit that, unless a doctor can ask that question, they are not able to discharge their duties in two ways. First, they cannot assess the capacity of the individual to make that decision unless they hear the decision articulated in the individual’s own words. Secondly, if the doctor is going to offer them all the options that may help to address their fears or the issues, they cannot do that unless they know what the motivation is.

In this House and in broader society, there will be a spectrum of what anyone feels is acceptable in an assisted death. For some people, there is the absolute clarity that an assisted death is never acceptable under any circumstances. For those of us who feel that an assisted death is acceptable, we will have different cut-offs: for some it will be because they do not want their children to be financially disadvantaged by their illness; for others it will be that intolerable suffering is the only acceptable rationale.

I would guess that, across most of society, the main line that they have been given for this is that it should be related to suffering. On that spectrum—we could all line ourselves up along it—is there any practical way of determining where that cut-off should be? If we go back to the long discussions we had about coercion on the first day in Committee, it became clear, as it has during the course of this debate, that it is impossible to determine coercion driven internally—namely, the feeling of being a burden—from coercion driven externally in subtle or less subtle ways. It is very hard to determine that if you live with the family and know them well, let alone if you have one or two contacts.

It is easier to make an objective assessment of whether what the patient describes to you as their personal distress makes sense in the context of the illness that they are discussing. That may be being incontinent, losing independence or unmanageable pain. If we are asking the doctors involved in this to assess for coercion, we are giving them an impossible task. If we are asking them to determine whether the person has a source of distress that will only get better and cannot get worse because of the terminal illness, that is a much more tangible form of assessment. Therefore, I suggest that that suffering related to the illness itself, however the sufferer describes it, is the only way to distinguish objectively those who are being coerced from those who have an internally driven reason for seeking an assisted death.

Terminally Ill Adults (End of Life) Bill

Baroness Cass Excerpts

Committee stage
Friday 23rd January 2026 Lords Chamber

[Lord McCrea of Magherafelt and Cookstown (DUP)]

And I am responding by saying that if we want to be sure that there is no ambiguity whatever—we are talking about the issue of life and death and, by what was suggested earlier on, inside a matter of days this was all to be over—there should be clarity. I would have hoped that the noble Lord would want that too.

[Baroness Cass (CB)]

The GMC guidance would need to be amended because, at present, there is specific advice on guidance around supporting patients at end of life. It says:

“Where patients raise the issue of assisting them to end their own life, or ask for information that might encourage or assist them in doing so, respect for a patient’s autonomy cannot justify illegal action … Medical professionals should … be prepared to listen and to discuss the reasons for the patient's request”,


but

“limit any advice or information in response, to … an explanation that it is a criminal offence for anyone to encourage or assist a person to commit or attempt suicide”.

The current GMC guidance precludes all this and would therefore have to be changed should this Bill go through.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

That is very helpful, and I trust the noble Lord, who is now nodding, will take that into consideration.

--- Later in debate ---

[Lord Deben (Con)]

I agree with everything that the noble Baroness said. That is not what I was saying. I was saying that many people, in seeking to get the Bill through, are not facing up to the fact that there are many people in society who will see this as an opportunity to find the better thing for them if their old grandmother decides to take her own life.

Some of us have spent many years working—albeit not as effectively as the noble Lord, Lord Mawson—among people who, frankly, are wonderful and have dealt with huge difficulties in their lives. But we have also found people who would be happy for the death of their grandmother for a matter of a very few pounds—and if their grandmother has a house worth £200,000, the situation becomes much clearer. They know what they want and they know what the pressure would be. In asking whether people have seen that, I must say to the noble Baroness that I have seen that—more times than I would really like to go through with her. Those of us who have worked all our lives in those circumstances—I think the noble Lord, Lord Mawson, will support me—will recognise that that is the case.

All I am saying about this amendment is that it helps to protect people against that, and it does so by saying that we, as a society, should be concerned that, if somebody thinks they ought to end their own life, even if they have only six months to live, because their housing is so bad, because they feel a burden to their family, or because they think the National Health Service should not be spending the money on them, we ought to do what is necessary to remove that reason. If, because of intolerable pain, they still wish to end their life, the Bill will be a proper means of doing it.

I will end with a simple point. The noble and learned Lord has explained why he does not want a reference to intolerable pain in the Bill itself. I understand that. That is why the noble Baroness, Lady Berger, has produced this answer, which is crucial not just because of the sort of society in which we live but because, if you do a public opinion poll, you see that people think that this Bill is about allowing people in intolerable pain to end their life. But it is not about that. What the noble Baroness is trying to do is to make sure that it is about that and that we do not become a society for which this becomes the cheaper way or the way in which people can use their influence to gain their own ends. The best way to add to that support is to support what she said. It is also a way for us, as a House, to say to the world that we are not concerned with this assisted suicide for any reason other than as an autonomous choice about real, terrible suffering.

[Baroness Cass (CB)]

My Lords, we know that people may have many of the problems that proponents of the Bill have described as reasonable justifications for why someone may want to end their life. They may already be a burden, as they see it, or incontinent, or under financial duress, or have pain from arthritis, or have a whole host of other things going on in their life. They may have fallen out with members of their family. There is a multitude of things. We have heard endlessly about that. Then, randomly, they get this ticket—the ticket that nobody wants—that says that they have only six months to live. Prognostic predictions such as that are based on averages, and the shocking fact, as we know, is that 50% of people are above average, so there will be a huge range. If you have been given a six-month prognosis, it could be anything from one month to 32 years, as we have heard.

To say that that is your ticket to be allowed to have an assisted death, and then completely disconnect that fact from the reasons for your assisted death, makes no sense at all. There is no internal logic in that. The amendment from the noble Baroness, Lady Berger, is brilliant in getting us past the intolerable suffering to something that is plausible, tangible and clear. As I have said previously, doctors make judgments all the time. The judgment about the six-month rule is hugely inaccurate, as I have just described, but the one thing that the doctor can usefully do is determine whether there is plausibility that the symptoms that are distressing the patient are related to that illness. They do not have to be the only reason; there can be all those other factors going on. But if there is plausibility that there are symptoms related to that illness—be it pain, breathlessness, incontinence or whatever else happens to be distressing to that individual—that seems to me to be acceptable. However, personally, I would prefer it to be limited to pain, breathlessness and things that may not be amenable to treatment.

None the less, that still gives the doctor some yardstick to determine that this is not just about coercion, even some internally driven coercion that the patient feels that it is their job to end their life. Anything else, and you are asking for somebody to make a judgment that is just not feasible. I cannot see—I have said this before —how it is feasible to assess whether the patient is feeling coerced in the way that the noble Baroness, Lady Fox, described in earlier discussions just because of the tutting and the head shaking at having to bring something to the patient or the person once again. This would give us something that is concrete, clear and defensible, which I think is what the public believe this Bill to be about.

--- Later in debate ---

[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.

Terminally Ill Adults (End of Life) Bill

Baroness Cass Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

We are not sure that the Mental Capacity Act is the best way in which to judge capacity in this case, and this Bill goes along with it. I ask the noble and learned Lord to think again. There have been amendments to disapply Sections 3(2) and 3(3) of the Mental Capacity Act for this purpose, and we have heard very good proposals of alternatives. Surely something could be worked out.

[Baroness Cass (CB)]

I want to make two very brief points. First, I support the point made about proposed new subsection (6)(g), to be inserted by Amendment 115, by the noble Viscount, Lord Colville, on being clear about whether this is a medical treatment. If it is a medical treatment, it drives physicians continuously to ask people whether they would wish to receive assisted dying.

The issue is not just in Canada. A very close friend of mine recently died in the Netherlands. She was so persistently asked whether she wanted to consider euthanasia there that she chose to die in a Jewish hospice—the one place where they would not persistently ask her that question because they do not carry out euthanasia in that particular hospice.

I would like to make another, more broad point about Amendment 115, which I strongly support. We have frequently had Chris Whitty’s opinion cited on the utility of the Mental Capacity Act because of familiarity. I would say one thing about that. We were incredibly lucky to have Chris Whitty as CMO during the pandemic—cometh the man, cometh the moment—as we had an epidemiologist in post. But he is a specialist in that area. A friend of mine who is a forensic pathologist specialised in freshwater drowning, but once he got into the witness box he was fair game for any pathology question and was asked about the appropriate temperature at which bloodstains might be washed out of clothes. Having very little familiarity with that, he said, “Well, according to my wife”, causing the defence council to jump up and say that he could not say that because it was hearsay. My point is that, if you asked me who I was going to trust on the issue of capacity—an epidemiologist or my noble friend here, who has practised all her life in psychiatry—the choice for me would be very clear.

[Lord Goodman of Wycombe (Con)]

My Lords, I will speak to my Amendment 113, which concerns a matter that has not previously been raised in the context of mental capacity, or I suspect my amendment would have been grouped earlier; it is about codes of practice. To explain it, I ask any noble Lord interested to turn to Clause 39(2) of the Bill, where they will find what it has to say about codes of practice, which is this:

“The Secretary of State may issue one or more codes of practice in connection with any matters relating to the operation of this Act not required under subsection (1) as the Secretary of State considers appropriate”.


It is a very broad provision concerning any codes of practice that might arise as a consequence of the Bill.

The Delegated Powers Committee, on which I sit, was very critical of this provision, and said the following:

“It may be that clause 39(2) is intended to be a ‘sweep up’ power in case the subject matter covered by the duty in clause 39(1) has missed something. However, such a wide power, with the potential to affect the extent of the legal risk incurred by those carrying out functions in a highly sensitive area of professional practice, should not be conferred as a ‘nice to have’ and requires a compelling justification … The subject matter of codes of practice should be set out on the face of the Bill to the degree necessary for Parliament to understand the subject matter and who might be affected and we therefore recommend that the power in clause 39(2) is removed from the Bill”.


My amendment does not go quite so far as the committee report suggested, but it does say that any code of practice issued under the Mental Capacity Act should not be issued unless

“a draft of the code has been laid by a Minister … before both Houses of Parliament, having engaged in public consultation, and … that the draft has been approved by a resolution of each House of Parliament”.

I therefore ask the sponsor of the Bill, in responding to this amendment, to be as helpful to the Committee today as he indicated he would be when he gave evidence on all matters, except approved substances, to which we will return in due course. I see that he is nodding, and I look forward to his response.

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Before the noble Baroness, Lady Cass, comes at me, no, I cannot write to Sir Chris Whitty. I have no control over him. However, I find his evidence important and material because it is not as if there is a group of doctors who are particularly concerned with the capacity issue. A lot of them have to deal with it, whether they are capacity experts or not, because they have to be able to evaluate what their patients want and whether they are capable of making the decision. Chris Whitty, the Chief Medical Officer of the Government, is well placed to say what the best way is for those capacity decisions to be taken. I say that I will not write to him because I and the noble Baroness, Lady Finlay, are in exactly the same position; we can both write to him, but we both have no control over him.

[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.