Terminally Ill Adults (End of Life) Bill

Lord Ashcombe Excerpts

Friday 14th November 2025 Lords Chamber

I say to the noble and learned Lord, Lord Falconer, that this debate has shown that perfectly reasonable people find a difficulty in understanding “ability” and “capability” as the same thing. If they are not the same thing, those people will want something to ensure that the narrowness of “capability” does not mean that people make decisions when they do not have the ability to do so.

[Lord Ashcombe (Con)]

My Lords, I speak definitely not as a lawyer or as part of the medical profession in any way. It appears to me that the Mental Capacity Act uses the balance of probabilities when making a decision, rather than “beyond reasonable doubt” as, in my understanding, the criminal court does. For such a definite decision as whether to end your life, the balance of probabilities is insufficient. Therefore, is the current definition of capacity in the Act sufficient for this job? I suspect not. Is “ability” the right word? I am not sure. Somewhere along this line, to the point made by my noble friend Lord Deben, there is an answer, and maybe two words is right.

[Lord Rook (Lab)]

My Lords, I will keep this brief. I was not going to share this at this point because it is quite personal and because it takes a lot for me to counter the noble Baroness, Lady Andrews, for whom I have huge respect. She was the first person to invite me to the House of Lords for tea, many years ago. I do not doubt that the Mental Capacity Act has been a huge advance in how we deal with these issues.

I accept that the noble and learned Baroness, Lady Butler-Sloss, is probably one of the few people in this place to make judgments in the courts and the Court of Appeal on mental capacity. I suspect that more of us have had to go through the process of helping a loved one through a mental capacity assessment, although I suspect that number is also still low. My father has dementia. I have had to support him through a mental capacity assessment. No matter how clear the Act or various legislations or definitions may be on paper, it is extremely difficult at times to take someone through that process. All he had to do was prove that he had capacity to instruct a solicitor, a decision far less serious and far less terminal than the one we are discussing today.

If you assessed my father’s capacity, you would find—on the comments made by the noble Baroness, Lady Hollins, about literacy and numeracy—that my father has near-perfect literacy and numeracy. We have had comments about executive function. You would find that he has near-perfect capacity for executive function to make important decisions. You would also find that he has virtually no short-term memory. He is more than capable of making a decision, but that decision is gone in 30 seconds—sometimes sooner. If you apply that to this situation, he would be able to make a decision but would not know about it at the point that decision was acted upon.

Returning to the comment from the noble and learned Baroness, Lady Butler-Sloss, about whether it is capacity or ability, I pick up on the comments from the other side of the Committee recently. There is not enough, in the way we judge capacity at the moment, to make this practicable and desirable. We certainly need more. I am not sure whether it is “ability”, but what we have at the moment is not enough to deal with this in practice.