Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

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.

[Baroness Lawlor (Con)]

My Lords, I thank the noble and learned Lord for his intervention, for which I am very grateful. I point out first that I think that many noble Lords feel there is a very great difference between a decision to refuse treatment or withdraw treatment, which may or may not end one’s life, and to ask for something which will definitely end one’s life. That point is brought up by supporters of the Bill.

I will speak to my Amendment 5 and to the related Amendments 250, 258, 305 and 338.

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[Lord Markham (Con)]

The point I was making—I am sure he will speak for himself in a moment—was that he was willing to look at that. He said that he was more likely to look at additional safeguards between 18 and 25. But I think he said—again, correct me if I am wrong—that he is willing to have further discussions with a lot of the experts we have here, including the noble Baronesses, Lady Cass and Lady Finlay, and, I am sure, others, to look at the whole question around age, as a product of the good debate that we have had here today.

I think I heard that the noble and learned Lord is taking on board the comments; he is willing to go away and look at this whole question with the experts here and, I hope, come back with something that reflects the reasonable view of everyone here today. I think we are being shown a way forward. I am keen to hear later about a lot of other things, such as the residency question and a lot of the other groupings, so at this point, I think we have what we are looking for—have we not?—in terms of a good discussion on this. I hope that we can go on to talk about some of the other groups.

[Lord Falconer of Thoroton (Lab)]

Just to clarify my position, I was responding to the debate which gave rise to real concerns about the age. I understood the noble Baronesses, Lady Cass and Lady Finlay, to say that perhaps a way forward would be to see whether there were additional safeguards from 18 to 25. That would involve me having a discussion with them and, if they were satisfied that there were additional safeguards and that they thought the age of 18 was right, that would obviously have an effect on me. If they put other arguments, I would obviously take them on board as well. My experience of the House is that, if one sees a way forward, before one continues making the same arguments as before, one sees whether a compromise that sensible Members of the House think would be enough works and whether it could attract support on Report. That was what I was thinking.

[Baroness Berridge (Con)]

May I draw the attention of the noble and learned Lord to the fact that the amendments I have laid in relation to EHCPs and additional assessment criteria are currently in group 7? If he has that meeting and that compromise might be available, that may enable me to withdraw some amendments.

[Lord Falconer of Thoroton (Lab)]

I very much welcome that suggestion. I also welcome the suggestion of the noble Lord, Lord Harper, who, as I understand it, is saying that we should also look at the clinical diagnosis of people. The noble Baroness, Lady Finlay, also raised that point. I am more than happy to include both those things, and if they both want to come, I would welcome them.

[Noble Lords]

Front Bench!

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[Baroness Merron (Lab)]

The point that I was making just before I sat down was that noble Lords will want to consider the points that I have raised in relation to these amendments. I am sure that they will take into account what the noble Lord has just said too.

[Lord Falconer of Thoroton (Lab)]

My Lords, I am grateful to everybody who has contributed to the debate. I have made my position moderately clear in relation to what we should do—and I sense that the Committee is happy that we should take that course.

I completely understand the points about people aged 18 being impulsive and often emotionally immature. On the point made by the noble Baroness, Lady Stroud, that is why the Sentencing Council refers to it. However, it is a different question here as to what the age limit should be. If people are emotionally immature, they will not have a settled view about what to do in these circumstances, but some people will. The noble Lord, Lord Kamall, asked: what happens if there are new developments in medicine that would extend life? The answer is that you would not have six months or less to live, which I think was the answer that he was giving in relation to it.

I have made my position clear. I invite the noble Baroness, Lady Berger, in the light of where we have got to, to withdraw her amendment so that we can move on to the next issue.

[Lord Mackinlay of Richborough (Con)]

I raise a mirror to the noble and learned Lord regarding his comments in 2021 during the passage of the Police, Crime, Sentencing and Courts Bill. His view was very clearly that 21 is the unequivocal age of adulthood. I assume that he has heard the views across the Committee. The noble Baroness, Lady Lawlor, had an alternative—18, 25 and 21 were advanced. Would it not be a useful compromise if he were to declare to the Committee today that he would actively consider 21 as the right age—as he did when considering whole-life orders in a previous Bill? That would be very helpful.

[Lord Falconer of Thoroton (Lab)]

On the comments that the noble Lord refers to, in relation to whether you should impose a whole-life term on somebody under 21, I recognise, as the Sentencing Council does, that issues of immaturity might make that inappropriate in certain cases. However, on this position, the question is: what is the age at which you might be capable of taking a settled decision? The concerns that the Committee has expressed about people aged between 18 and 25 make me think that the right course is to consider whether there are ways to deal with that that the House would feel are satisfactory on Report. I think that is the right course.

[Baroness Fox of Buckley (Non-Afl)]

Could I have some reassurance that with changing the franchise to 16, there will not be any slippage in relation to this Bill from 18 downwards? That is a reasonable question because, according to some people, 16 is now mature enough and adult enough to decide the fate of the country and decisions made here. Is there not a danger? Can he guarantee that this will not happen?

[Lord Falconer of Thoroton (Lab)]

I guarantee to the noble Baroness that the age is not going to go down from 18 as far as this Bill is concerned. The future is not in my gift, unfortunately. However, as far as the future is concerned, it is extremely unlikely that a subsequent Parliament is going to reduce that age.

[Baroness Berger (Lab)]

My Lords, this has been an important debate that really has encapsulated what this House is here to do. There are, of course, other amendments in this group from the noble Baroness, Lady Goudie, and the noble Lord, Lord Moylan, that we have not discussed. It is worth just putting on record that these seek to prevent discussions with children and will be an essential question to scrutinise and discuss in the next group.

I just wish to very briefly respond to three points that have been made during this group, because it is relevant and important to conversations that will no doubt continue because of the weight of opinion and support that has come forward for these amendments.

I listened very closely to the noble Baroness, Lady Fox, and I just want to make clear that, for all these young people, it is not the exception. It is impossible to imagine a young person who would not have an EHCP. That is the context in which I presented and spoke to these debates. It is not just a small group: we anticipate all of them, apart from a young person who might receive a terminal diagnosis over the age of 25 and will not have time to have an EHCP. Otherwise, we are considering all young people in this context of an EHCP that local authorities have a statutory responsibility for, and it is in that context that I make those representations.

I listened very closely to my noble friend Lord Winston, and he did make some important comments. It is clear that there are some elements of brain development that do evolve and complete by the age of 18, but there are many others that do not. Global experts and authorities on adolescent brain development such as Professor Laurence Steinberg, Professor Casey, who is the expert on neurobiological maturation, and Professor Jay Giedd, who is the MRI pioneer in adolescent brain research, all say that the prefrontal cortex responsible for executive functions does not reach its maturity until the early to mid-20s, continuing to develop well past the age of 18, and that an 18 year-old does not yet have the capacity.

I am reminded again that we have heard a lot of comments from Professor Sarah-Jayne Blakemore. She is the leading UK neuroscientist on adolescence, and she has said that an 18 year-old does not yet have the fully mature capacity for long-term planning and evaluation of consequences that characterises adult executive functioning. We should listen to her comments very closely.

Finally, my noble friend Lady Hayter said that young people would not be asked—it would be something they would request. I would point out that the Bill does enable a doctor to raise this with anyone from the age of 18. It is in that context that I have brought forward these amendments.

I will not refer to all the other important contributions and comments that have been made, but I want to make one final point. It has been very clear from the debate in the other place that even some of those most in favour of assisted dying in principle are highly concerned about the risk of children and young people being drawn into it. The amendments in this group have sought to act on both their concern and the evidence that this House took during our own Select Committee. In all the debates we have had on the Bill, and will no doubt continue to have, we have to grapple with the simple fact that there is no going back if we get it wrong. For young people in particular, we should, as we have been asked to do, err on the side of caution.

I am very glad to hear that my noble and learned friend Lord Falconer will consider an assessment for those aged 19 to 24, but I urge him to accept the simplest and strongest safeguard of all, which is to raise the eligibility to 25. I look forward to further discussions on these matters. With that, I beg leave to withdraw the amendment standing in my name.

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Moved by

[Lord Falconer of Thoroton]

6: Clause 1, page 1, line 6, after “person” insert “has a preliminary discussion with a registered medical practitioner (see section 5) and”
Member’s explanatory statement
This is a drafting change.

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[Lord Falconer of Thoroton (Lab)]

In this group, which is group 3, there are a number of amendments put forward by me but also two amendments put forward by Back-Bench Peers that are in the same sort of area. These are drafting changes. If anybody objects to any of the drafting changes, I will not move them when the time comes. If there is no objection, I will move them as long as there is going to be no vote at this stage.

Can I just go through them very quickly? Amendment 6 makes it clear that the person, who has to be over 18, has to have the preliminary discussion referred to in Clause 5, and it is making clear something that I say is already explicit in the Bill. Amendments 8 and 9 in the names, respectively, of the noble Lord, Lord Moylan, and the noble Baroness, Lady Goudie, seek to make explicit the same thing, and I hope they will accept that I am giving effect to what they are saying in relation to that.

Going on to another topic of drafting changes, Amendments 290, 366 and 931 in this group get rid of a duplication issue. Everybody wants domestic abuse to refer to coercion and control, and financial abuse. That has been achieved by incorporating the definition of domestic abuse in the Domestic Abuse Act 2021. In some parts of the Bill, as it is currently drafted, we have left in the wider definition of domestic abuse, which is now duplicative because of bringing in the definition of domestic abuse that is at the top of page 1 of the Bill; so Amendments 290, 366 and 931 remove the duplicative effect.

Amendments 332, 417, 418, 419 and 425 deal with the situation where the doctor—one of the two doctors who has got to give the assessment—cannot or will not continue to act. As currently drafted, you can get a replacement doctor only if the doctor who will no longer agree to act or cannot act has either died or suffered illness. These amendments delete the word “illness” and simply provide for a mechanism where, if the doctor cannot or will not continue to act, you can get a new doctor.

On Amendment 405, Clause 12(5) requires that the doctors who are doing the assessment make sure that there is appropriate adjustment for language and literary barriers. I am putting forward a new draft that is clearer but does not in any way change the sense.

Under Amendment 413, where a doctor has a doubt about something and is one of the two assessing doctors, he has to get a second opinion on the clinical diagnosis for the person. In relation to the second doctor, the Bill said that, if he had a doubt, he could rely on the opinion obtained by the first doctor, but that seems to us to be illogical. If the second doctor has a doubt, even after reading that opinion, he should get an opinion of his own, and that is the effect of Amendment 413.

Amendment 416 is the final drafting amendment. It redrafts Clause 13(3), which deals with the situation where the second doctor has said no, he does not think the conditions are satisfied. In those circumstances, you can get another doctor to come in. We have redrafted Clause 13(3) to make it clear that, if the second doctor says yes, he has to give explicit reasons why he is disagreeing with the first second doctor. I commend these drafting changes and beg to move Amendment 6.

[The Deputy Chairman of Committees (Baroness Scott of Needham Market) (LD)]

My Lords, I must inform the Committee that, if Amendment 6 is agreed to, I will not be able to call Amendment 9 by reason of pre-emption. We now come to Amendment 7, which is an amendment to Amendment 6.

Amendment 7 (to Amendment 6)

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That is what she said in the other House. Why is this now being watered down?

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting, but I think there is a profound misunderstanding. Let us look at Clause 8, because the noble Baroness, Lady Coffey, is making a very important point. Jess Asato was incredibly keen to specify that training in respect of

“domestic abuse, including coercive control and financial abuse, is mandatory”.

Clause 8(8) says:

“The regulations must provide that the practitioner must have had training about the following”,


and paragraph (d) says “domestic abuse”. Subsection (10) says that training on domestic abuse must include

“training in respect of … coercive control and financial abuse”.

That was the point that Jess Asato was keen to establish.

Noble Lords will see at the top of page 41 of the Bill that the definition of domestic abuse

“includes behaviour that is controlling or coercive or … economic abuse”.

What is happening here is not a watering down of any of that. It is simply avoiding duplication between Clause 8(10) and the wide definition of domestic abuse in Clause 56. I understand why the noble Baroness might be confused about it, because it is slightly complicated, but that is the intention. It is not for one second to water down any of the protections.

[Baroness Coffey (Con)]

My Lords, I do not think I am confused at all. I know what Jess Asato tried to get into the Bill to give her assurances, and that something has changed. I had moved on to talk about the amendment from Jack Abbot, which was very important.

The issue of illness is an example of where the Government said they had worked with the Bill’s sponsor. The challenge of this group—I am thinking about what the noble Lord, Lord Birt, said earlier—is that we are covering multiple issues on the basis of drafting changes. I would rather get into the substance of some of this when we get to later groups. However, Clause 14 says that, in the very unlikely circumstances that the doctor who agreed to give a second opinion “dies” or “through illness” is unable to continue, the person has the right to seek a second opinion elsewhere. My point is about removing “through illness”, which was specifically included the Bill. I am trying to understand why the noble and learned Lord is seeking to do that. I have already heard him say that you can just find another doctor, but I am particularly keen to hear from the Government their view, because they worked with the Bill’s sponsor in the Commons to get this phrasing about illness in.

The sponsor’s Amendment 416 is to do with independent doctors and Commons Amendment 459, and there is more than one reference to this issue. There was significant debate when Sarah Olney introduced her amendment in Committee in the Commons seeking to reduce the possibility of abuse by making sure that the second independent doctor has available the reasons why the first independent doctor concluded that the person was not eligible. My interpretation of the amendment tabled by the noble and learned Lord, Lord Falconer of Thoroton, is that that goes away and there will not be two reports, and the amendment speaks further about aspects of the reports.

This amendment brought attention from other MPs. Lewis Atkinson talked about recognising that the provision of five different touchpoints of assessment—I appreciate the effort that has gone into trying to bring in safeguards around these matters—is one of the strengths of the Bill and that each assessment should be done in a way that can be progressed with more information. On the Bill’s record-keeping provisions, the assessment should become increasingly informed throughout the process, and therefore there should be an opportunity for a lot of those things to be shared with the panel, as the Bill proposes. Kim Leadbeater said that she was minded to support Sarah Olney’s amendment, but, again, some of those changes are being taken out.

I am not entirely clear about Amendment 417. I somewhat understand the disability definition, although there is only one reference to Section 6 of the Equality Act 2010 anywhere.

This group of amendments needs careful scrutiny as we go through the different groups for later discussion. One of the aspects that we need to make sure of is that the extensive concessions made in the other House do not all of a sudden, through just a few changes here and there, go away. In fact, as we know, in this House we are even considering what further safeguards there could be. One of my reasons for rising today was to bring this to the attention of the Committee. I am not suggesting that the noble and learned Lord, Lord Falconer of Thoroton, has done this in bad faith. He may well think that this is just being more efficient, but the extensive debate and the support in the other place—indeed, the support of Kim Leadbeater—for several of these amendments as they were originally drafted mean we should be asking him to think again. We will get into some of the detail in the debates on future groups. I beg to move.

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[Baroness Merron (Lab)]

My Lords, I, too, shall be brief. All but three of the amendments in this group have been tabled by the Bill’s sponsor and, as has been discussed, they make a series of drafting changes to the Bill, including making sure that terms are consistent throughout and removing ambiguity and duplication.

The Government are neutral on all the policy choices reflected in these amendments, as they are on the Bill as a whole, but have as usual provided drafting support to make the Bill legally workable. As a part of the discussion today, it is of course for the sponsor and for Parliament to determine whether any of the amendments that the sponsor has chosen to table have changed the intent of amendments that were debated in the other place.

Amendment 7 in this group, tabled by the noble Baroness, Lady Coffey, seeks to amend Amendment 6 by changing a reference in Clause 1(2)(b) from “a preliminary discussion” to “their first preliminary discussion”. It does not make any wider changes to the Bill to provide for more than one preliminary discussion to take place, so this may lead to uncertainty. As with all amendments that have not had technical input from the Government, noble Lords may wish to note that the current drafting of this amendment may require further consideration to make it fully workable, effective and enforceable.

Amendments 8 and 9, on which I raise no major workability issues, appear to be trying to achieve the same purpose as Amendment 6, tabled by the Bill’s sponsor. But I would note that Amendments 8 and 9 have not had the technical drafting support from officials and therefore may not be fully workable, effective and enforceable.

[Lord Falconer of Thoroton (Lab)]

My Lords, I am grateful for all the interventions. These changes are only drafting changes. Some legitimate points were made, particularly by the noble Baronesses, Lady Finlay and Lady Lawlor, but they did not really go to the drafting points.

I go to the concerns various Members have expressed. Amendments 6 and 7, tabled by the noble Baroness, Lady Coffey, would prevent doctors having a conversation with people—I am not saying this in a bad or a good way, but that is what she wants to do—particularly before they reach 18. There is a point there, but it is nothing to do with the change I have introduced in my Amendment 6. My amendment would simply make it clear that there has to be a preliminary discussion before you can go ahead to assisted death. I have done that to make it clear that it is one of the eligibility conditions; it says nothing about what should be talked about or whether such a conversation should take place under the age of 18.

In fact, as the noble Baroness, Lady Coffey, said, Clause 6 states:

“No registered medical practitioner or other health professional shall raise the subject of the provision of assistance in accordance with this Act with a person under the age of 18”.


I do not think that the noble Baroness’s amendment would add to that protection. The key point is that all Amendment 6 is doing is saying that you have to have a Clause 5 discussion.

The next point, raised by a number of Peers, is that I am watering down the protection in relation to domestic abuse. That, as a matter of drafting, is wrong. It is only a matter of convenience that, having defined domestic abuse as including everything so defined in the Domestic Abuse Act 2021, you get coercion, control and economic abuse as forms of domestic abuse. To avoid having to repeat that every time the Bill refers to training, I have simply referred to domestic abuse, and that is then defined at the top of page 41. I very much hope that people will accept that that is the position.

The noble Baroness, Lady O’Loan, who is shaking her head, raises a different point about the position in relation to abuse that is not domestic. Perhaps your lawyer is exercising undue influence on you. That is a point that I will respond to in writing, but it is not a point raised by my drafting change, because all the restrictions have been in relation to domestic abuse, not to what the lawyers would call undue influence. But it is a perfectly legitimate point, which I will come back to in correspondence with her.

[Baroness Berger (Lab)]

On this very point, and for the record, I think many noble Lords will want to hear specifically how my noble and learned friend’s Bill will ensure that, when it comes to the training, all elements of domestic abuse as set out will be covered in that training, particularly given the concerns raised both here and in the other place.

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[Lord Falconer of Thoroton (Lab)]

The reason it is covered already is that the Bill says that the training must cover domestic abuse. Domestic abuse is defined by reference to the Domestic Abuse Act 2021. Domestic abuse in the 2021 Act includes coercion, control and economic abuse. That is how there is a mandatory requirement in the Bill for all those things to be covered.

[Baroness O’Loan (CB)]

The definition of economic abuse in the Domestic Abuse Act is limited to actions that will prevent the person getting money or being able to spend money, if I remember correctly. There could well be financial abuse, depriving a person of very large sums of money, while they are still able to get money and spend money, so I think it needs further thought.

[Lord Falconer of Thoroton (Lab)]

I will certainly give it thought, but my reading of the definition of domestic abuse in the Domestic Abuse Act 2021 is that it is an effective means of covering the sort of economic abuse habitually seen between domestic partners. I think that covers it but, because of my respect for the noble Baroness, I will certainly look at whether it needs to be expanded. What the noble Baroness is referring to is a problem in the definition of domestic abuse generally in relation to economic abuse, which I do not think is there and was certainly not the intention of the 2021 Act.

I turn to the other issues. First, on “other than illness”, this is about when one or other of the two doctors withdraws from the process without giving a reason—simply withdrawing from the process. I completely understand what the noble Baroness, Lady Fox, is saying, which is that if someone is withdrawing because they think the person is being pressured, that must be recorded somewhere and any other doctors must be able to see it. What we are dealing with here is not that situation. We are simply dealing with a doctor who withdraws and gives no reason. Should the patient have to establish that there is a good reason for the withdrawal, or is it enough that the doctor has withdrawn and is no longer willing to participate? All the amendment does is to say, “If you can’t or won’t go on, you can get another doctor”, which is not a change in sense but makes clear what those provisions are. When I say “those provisions”, I am referring to those that allow for a replacement doctor when one of the other doctors—the originally appointed one—cannot go on.

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[Lord Falconer of Thoroton (Lab)]

First, on there being no need to question someone about why they are withdrawing, if there is material relevant to it, I need to check the Bill to see that it should be recorded. But the Bill contains regular provisions that state that everything must be recorded. If it is not adequately covered—if somebody says, “I’m withdrawing because I think you’re being coerced”, obviously that should be recorded—I will make sure that it is covered.

On Amendment 405—

[Lord Deben (Con)]

I genuinely want to understand this. The worry we had about this being a drafting difference is simply because when you could withdraw only on grounds of illness or death, the situation about why you withdrew did not arise. When you remove that, people can withdraw without giving notice of why. Therefore, there ought to be something—the noble and learned Lord has rightly said that he will look at it—to make sure that if somebody withdraws because there is some serious issue in connection with the decision, they have to say what it is. If we do not have that, this very much becomes a weakening point. I know that the noble and learned Lord does not want it to become that, but without something that insists on the information being given, it does become much weaker. This is not a drafting point until that is put right; when it is, it is a drafting point.

[Lord Falconer of Thoroton (Lab)]

I do not accept that it is not a drafting point, but that may be dancing on the head of a pin. The point that both the noble Baroness, Lady Fox, and the noble Lord, Lord Deben, are making concerns making sure that if you are leaving for a reason that will give rise to problems, it is properly recorded. I completely accept that and we will make sure that that is the position, because it is a valid point.

In relation to Amendment 405, the noble Lord, Lord Shinkwin, said that it is a watering down. It is not a watering down at all, with respect. The current draft says:

“When carrying out an assessment in accordance with subsection (2), the assessing doctor must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters”.


The new draft says that the relevant doctor must

“take all reasonable steps to ensure that there is effective communication between the assessing doctor and the person being assessed (including, where appropriate, using an interpreter)”.

The noble Lord, Lord Shinkwin, is shaking his head; I am more than happy to talk to him about how that could be a change, and if there is some change that he would like in relation to it, let us put it in. But it is, in legal terms, to my eye, wider. It covers a much wider ambit without providing any inadequate protection. Maybe the right course is for me and the noble Lord, Lord Shinkwin, to sit down and for him to identify the changes that he would like. At the moment, I cannot see them.

[Lord Shinkwin (Con)]

I thank the noble and learned Lord, and I will be very brief. Would he consider withdrawing his amendment? The change I would simply write, and I imagine the House would find acceptable, is what the sponsor of the Bill in the other place also found acceptable, which is to accept Mr Abbott’s amendments.

[Lord Falconer of Thoroton (Lab)]

I do not need to withdraw the amendment, because if the noble Lord objects to it, I will not press it in Committee. It depends on what we get to when we get to Report. What I am saying is that, at the moment, I cannot see the difference. I am more than happy to talk to him before Report. If there are valid points, let us put them in. However, at the moment, it looks to me to offer just as good, if not better, protection.

[Baroness Grey-Thompson (CB)]

I would not be able to accept the amendment as tabled because I have numerous other amendments on disability, language, BSL, different levels of interpretation and Makaton that are all important when having these conversations. Following the offer that the noble and learned Lord made to the noble Lord, Lord Shinkwin, I would be delighted to join the meeting as well, to see how the noble and learned Lord’s amendments can be improved to move further down the road. What we are trying to do is to make sure that people go into this decision-making process clearly understanding the decision they are taking.

[Baroness Hollins (CB)]

If such a meeting were to take place, I would be delighted to ask the noble and learned Lord to consider the alternative wording I proposed when I spoke to the amendment.

[Lord Falconer of Thoroton (Lab)]

First, both noble Baronesses would be very welcome to attend this meeting, which is expanding all the time. Secondly, the language the noble Baroness, Lady Hollins, proposed was “reasonable adjustments”, which is in the first draft but not the second. The reason we have not used the wording “reasonable adjustments” is that it comes from the disability Act. We want to do that and then go wider, and our amendment therefore gives greater width.

[Baroness Hollins (CB)]

It is the Equality Act, not the disability Act. I suggested that the definition of “disability” in the Equality Act, with respect to something like this, would in fact include someone with a long-term condition or mental illness, as well as any other disabling condition that the noble and learned Lord may be referring to.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness is right that it is the Equality Act, not the disability Act; I apologise for that. If we were to restrict it to that, we would restrict it to a particular thing, and we think that it should be wider that. Again, we can talk about that at the ever-expanding meeting.

On Amendment 416, the noble Lord, Lord Ashcombe, was particularly exercised by the fact that the second doctor would not see the report of the first doctor; he would have some degree of problem with that. The noble Lord will know that, where a second doctor is brought in—where a referral is made to a new practitioner—the co-ordinating doctor must provide the new doctor with a copy of the previous report. If the new doctor is satisfied as to all the matters mentioned in Clause 11 on capacity et cetera, he or she then has to say why he or she disagrees with the previous doctor. The noble Lord’s legitimate sharpness in relation to that point was based, I think, on an improper understanding of Amendment 416, which will allow this to happen only once the new doctor sees the report of the previous doctor.

In the light of my exchange with the noble Lord, Lord Moylan, which was right for us to have, I will not move my amendment. Although the noble Baroness, Lady Coffey, was kind enough to indicate that she will withdraw her amendment to my amendment, because the noble Lord, Lord Moylan, thinks his drafting is better, we will have to wait and see what happens on Report. Do not hold it against me when I come back with the same amendment on Report.

[Baroness Coffey (Con)]

I thank the noble and learned Lord for his extensive responses. They reflect that “ensure” and “take reasonable steps” are actually different in law compared with what is expected. I am grateful to him for saying that he will not press his amendments in Committee and that he will allow us the opportunity to meet him and others to discuss some of these issues, where we think the provisions go beyond what might be considered legal drafting. I am slightly concerned that the Government did not reply to one particular aspect, but I will take that up separately with the Minister. But with that, I beg leave to withdraw—

[Lord Wolfson of Tredegar (Con)]

Before my noble friend sits down, I wonder whether the noble and learned Lord might take the opportunity to respond to the point I put to him on confirming the drafting of that amendment. He must have overlooked it.

[Lord Falconer of Thoroton (Lab)]

That is in the notes, but I will write to the noble Lord on that.

[Baroness Coffey (Con)]

With that, I beg leave to withdraw Amendment 7.

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[Baroness Finlay of Llandaff (CB)]

We are discussing the wording of this Bill, with due respect. I raise this as a concern for clarification. It needs clarification because, if noble Lords are anticipating that this Bill and the legislation in the other jurisdictions will pass, we cannot leave a legal loophole or difficulty that might jeopardise the care of patients coming to England from the Crown dependencies. That is why I have raised it.

I turn to Amendment 11. Currently, the Bill speaks of the person being “ordinarily resident” in England and Wales, but there is a problem with “ordinarily”. In 1983, Lord Scarman stated in a House of Lords judgment that

“‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being”.

So far, so good. However, in the healthcare context, the 2012 Review of Overseas Visitors Charging Policy said:

“The vagueness of the definition means that OR”—


ordinary residence—

“is difficult to interpret and apply on an individual case basis”.

People fell through the gaps and the NHS was not recovering its costs. Then, during his time as Immigration Minister, the noble Lord, Lord Harper, pointed out that

“we need to do a better job of making sure that front-line professionals have a simpler system”.—[Official Report, Commons, Immigration Bill Committee, 7/11/13; col. 290.]

The problem with the definition in the Bill is that it could cover someone who is now living in another country but has an address of convenience in England and Wales for whatever reason. We know that there are thousands of empty properties owned by people who are not living permanently in this country. Apart from the more than 187,000 homes that are owned by people living permanently abroad, there are 5.5 million people who are British passport holders or have residency visas to live in the UK but are living abroad permanently. What will be the position of these people if they wish to access an assisted death here? Currently, they would not be eligible for NHS treatment if it were to be funded by the NHS. If they came to live in the UK for a year, they would then become eligible for the NHS, but, with the prognosis of six months or less, they would be expected to be dead within that time. Of course, this assumes that there is any accuracy in prognostication, which there is not.

Let me put to your Lordships a scenario that is, sadly, not infrequent. A person working for the Foreign and Commonwealth Office in an embassy abroad becomes seriously and terminally ill and is repatriated to the UK. Their house is rented out and they have to give notice, so they go to live in a different area—one, they hope, with good specialist palliative care services that can provide them with support. However, not being able to be in their own home and surrounded by their own things, and without contact with people who would otherwise have a role in their lives, they easily become very depressed.

Let us look at that scenario under this Bill. Suppose they decide that they want an assisted death. They will not have been resident for 12 months prior to making a first declaration to request an assisted death. Will that person, who may have worked all their life in service of this country, now be ineligible? I see that the noble and learned Lord, Lord Falconer, is nodding that they would. I believe that, under the wording of the Bill—

[Lord Falconer of Thoroton (Lab)]

Hold on—my nods must not be misinterpreted. I understand the question. If, for example, you live in Britain and you go and become the First Secretary in the US, you do not cease to be ordinarily resident in the UK. If you are a soldier and serve for nine months abroad, you do not cease to be ordinarily resident. I was nodding only to say that I have got the question, but I would not necessarily agree with the solution that the noble Baroness proposes.

[Baroness Finlay of Llandaff (CB)]

I am grateful for that clarification and we will come back to the noble and learned Lord’s comments on these issues afterwards.

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[Lord Falconer of Thoroton (Lab)]

I am very willing to address these border issues, which are incredibly important. The noble Baroness, Lady Finlay, specifically raised them in the context of the Isle of Man patient who comes to, say, Liverpool for treatment. What will happen when Scotland and the Isle of Man have different laws on assisted dying? If, as this draft says, you have to be ordinarily resident in England and Wales to get the benefit of the exception to the Suicide Act, those who offer to help someone get back to the Isle of Man for an assisted death there would be committing a criminal offence because the person would not be ordinarily resident in England and Wales.

The British Medical Association has a proposal that we amend the Bill to say that if you help somebody to go to another part of the country to have an assisted death in accordance with the laws there, that would not be a crime. To answer the point by the noble Baroness, Lady Finlay, I have been in discussion with the BMA as to how one might introduce an amendment to that effect. We need to discuss that, and these cross-border issues definitely need to be discussed. I would very much welcome such a discussion taking place with interested parties.

[Lord Beith (LD)]

What I am talking about is a group of people who live in England, are ordinarily resident in England, but who happen to be registered with a general practice in Scotland. That has no impact on what the Scottish situation would be in other respects—that is a matter for the Scottish Parliament—but it does affect the scope of the Bill.

[Lord Falconer of Thoroton (Lab)]

I was addressing the wider issue, the one that the noble Baroness, Lady Finlay, was talking about. But it goes to those ordinarily resident in Scotland, who come to England for their medical advice—and if the medical advice says, “Go back to Scotland if you want an assisted death”, would that be a crime? But I also wish to deal with the GP point. If you live in England but have a GP in Scotland, does it debar you from getting it here? I am more than happy to include that in the discussion.

[Lord Moylan (Con)]

My Amendment 14 in this group seeks to expand eligibility for those of pensionable age who have retired from the UK and gone to live abroad. It is a probing amendment, of course; it is not my intention particularly to expand eligibility under the Bill. I am trying to raise a question of equity and fairness but also legal defensibility. I want to approach the issue from a slightly different angle. I endorse everything said by my noble friend Lord Lansley, the noble Baroness, Lady Finlay, and the noble Lord, Lord Beith, in raising practical issues, but I want to approach it on a slightly different basis.

The intention of the sponsor, I think it is fair to say, is that in creating this Act we do not turn England and Wales into a sort of international capital for quick assisted death. That would be an appalling thing to happen. So we try to put some borders and parameters around it and say that this service is here for the use domestically of people who are established here. One way of looking at that is to put the criteria in about having been here for 12 months and so forth, and being ordinarily resident, and all of that. As I say, I agree that those things raise very serious practical issues, but it seems to me—here I tread very carefully, because I am not lawyer—that they raise legal issues as well. Are we to some extent fooling ourselves into thinking that we, although we are the legislature, can create these boundaries and that they will remain firm?

I am thinking about what the Minister said in her reply to the debate on the first group today, in which she was very careful to draw noble Lords’ attention to the fact that certain amendments in that group might be challenged under human rights law or on the grounds of the Equality Act. She said that she could not give assurances that they would not be challenged; that was her being cautious and proper in expressing the Government’s view while being neutral about the Bill. But that raises a flag. How many of the limits that we are discussing now would actually withstand legal challenge? I chose my own example on precisely those grounds.

What if you have lived all your life in this country and paid all your taxes in this country and reached your pensionable age and decided to retire to Spain, say? Unfortunate developments lead you to want to come back and you qualify under the Act for an assisted death; you have a terminal illness and six-month prognosis, and you want to come back to the UK to take advantage of that, maybe because it is not available in Spain or because you want to be with other members of your family—who knows, but you want to come back to do that.

Under the Bill, as I understand it, you would be excluded from doing that. But would a court agree that that was a firm parameter; in other words, would a court agree that the criteria we have established are sufficiently rational that they have a sufficient basis in other legislation, in their understanding of human rights or in practical considerations? There might be all sorts of reasons why courts might say, “Yes, these are rational limitations”. But it could equally be the case that the court would say, “No, that is an injustice. This person has paid their taxes all their life. They’ve only been gone from this country for a few months. Of course, they should be allowed to come back and take advantage of it; it is irrational to exclude them”. That is the point I want to raise.

The noble and learned Lord the sponsor of the Bill has to put in place criteria which not only sufficiently exclude the possibility that we are going to become an international shop for assisted death—which we would all agree with him is something that we do not want to see happen—but are sufficiently rooted that they will be defensible and durable in a judicial context. That is the matter that most concerns me, apart from the practical considerations, about this whole eligibility debate.

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[Baroness Merron (Lab)]

I am sure the noble Baroness will understand that I am restricted in the comments that I can appropriately make here. I heard my noble and learned friend Lord Falconer say that all these matters needed consideration, and I am sure that he will expand further on that very point.

[Lord Falconer of Thoroton (Lab)]

I will come to that question when I go through the points.

The purpose of Clause 1(1)(c)—namely, that to qualify you have to be ordinarily resident in England and Wales and have been so resident for at least 12 months—is, as noble Lords have said, to avoid people coming here specifically for the purpose of having an assisted death. It therefore would not be adequate to say that people should be ordinarily resident at the moment they apply, because they would have come specifically for that period. Hence you need a period, and 12 months is taken as a reasonable period in relation to that.

The phrase “ordinarily resident” appears right throughout the statute book in a whole range of settings and reflects the policy choice made by regulations or statutes. It says, “We want to give this right to people who permanently live in this country”, using the word “permanently” not in a legal sense but in an ordinary sense. In applying that phrase, the courts have not generally had any real difficulty as to what it means. It is a reflection of this Parliament saying that we want to give particular rights to the people who live here, and sometimes we say, as we are suggesting here, that we do not care what their citizenship status is—if they live here permanently, they get that right. For example, in relation to the National Health Service we say that if people live here permanently, they get that right.

With the greatest respect to the noble and learned Baroness, Lady Butler-Sloss, the cases have made it pretty clear that you can be ordinarily resident here but have temporary absences abroad—for example, if you go to work as a diplomat abroad, serve in the Armed Forces or take a job that takes you away for two months. The big case is somebody whose family lived here and who went to be educated in India for a period of time, who is still held to be ordinarily resident here. With the greatest respect to the noble Lord, Lord Mackinlay, I do not think that adopting the phrase “ordinarily resident” gives rise either to injustice or to legal difficulties.

I will deal with the points made by individual Peers. I am very sympathetic to the point from the noble Baroness, Lady Finlay, as I made clear in my intervention. I do not think she was putting in the word “permanently” other than to probe the question of those who live on the Isle of Man or Jersey and get all their medical treatment habitually in England. When the doctor in England says, “I will help you go home to the Isle of Man to get an assisted death”, assuming that it becomes legal in the Isle of Man, the doctor there will be committing a criminal offence under the Bill unless there is an amendment.

The BMA has proposed an amendment that, if you help somebody go home for an assisted death—home being, say, the Isle of Man or Jersey—and it is legal there, that should not be a criminal offence. I talked to the BMA about that. We need to work together to see whether we can get an amendment that satisfies the point that the noble Baroness, Lady Finlay, has made. I would welcome her input in relation to this.

--- Later in debate ---

[Lord Lansley (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Can I just finish this sentence?

On the tourism point, it invites the possibility that you can come and genuinely live here until you die in order to get an assisted death, and we do not want that.

[Lord Lansley (Con)]

I think the noble and learned Lord knows that the definition of “ordinarily resident” that is used in the National Health Service is defined in common law. It is about living here as part of your normal pattern of life for a settled and continuing purpose. It is not “at a moment in time”. That is why the 12 months is particularly inappropriate, because it is a matter of judgment at the point at which a test of ordinary residence happens, and one has to demonstrate that one is here for a settled purpose.

[Lord Falconer of Thoroton (Lab)]

I accept that completely. The reason the 12 months is here is to give some degree of assurance that the reason you are living here is not because of an assisted death but because it is your genuine home.

I come to the proposal from the noble Lord, Lord Frost. The way it is drafted, although I cannot believe he meant this in the way that he put it, you have to be ordinarily resident in England or Wales, you have to be a British citizen and you need indefinite leave to remain. I was surprised he was saying it would be an easier test to apply. It would not be an easier test to apply, because you would have to apply both ordinary residence and whether you are a citizen or have indefinite leave to remain. Even assuming the proposal is the more limited one, namely, that you only have to be a British citizen or have indefinite leave to remain and you do not have to be ordinarily resident here, that would not be appropriate, for two reasons.

First, the policy choice that the sponsors of the Bill, myself and Kim Leadbeater, have made is that, if you live here—if you are ordinarily resident here—whatever your citizenship or status, you should be entitled to it. Secondly, and separately, I do not think it is appropriate to make it available for people who, for example, have not lived in this country for 50 or 60 years and have no intention of returning. That would invite death tourism, to use the phrase.

The noble Lord, Lord Harper, said that doctors should not be required to make the assessment. If the position is that there has to be some residence requirement, it is perfectly okay for the two doctors who are concerned with this to make inquiries about where someone lives and how long they have lived here. That is not difficult, and in 99.99% of cases it will not give rise to any problems. Let us assume that most people are honest, and say to the doctor, “I actually live in France but I’m coming here because I want this”. The doctor will say that it is not available. I hear what the noble Lord says, but I do not think it gives rise to particular problems. If there are particular problematic cases, these can ultimately be resolved by the panel.

[Lord Harper (Con)]

I do not think that is the experience of the National Health Service. There is a whole cadre of staff—the overseas visitors managers—who deal with people who are trying to access a service. I do not think it is the case that this is straightforward and that in the vast majority of cases there will not be an issue. That is not the NHS’s experience and I do not think it will be the experience of this service either.

[Lord Falconer of Thoroton (Lab)]

I am surprised to hear that. I will make inquiries, but I am almost sure that that will not be the case with this.

The noble Lord, Lord Mackinlay, gave us an interesting tour d’horizon of the law and said how “ordinarily resident” applies in various areas. “Ordinarily resident” means the same thing in all those areas. For the reasons I have already given, I do not think it will prove a difficult thing to apply in practice. I am grateful to the noble Lord, Lord Meston, for his endorsement of the approach to “ordinarily resident”.

The noble Lord, Lord Wolfson, asked me a number of questions, such as about the citizen who was ordinarily resident here and then went to live abroad—I think that was the case raised by the noble Lord, Lord Moylan. If a person decided that they were going to move to Spain and live the rest of their days there, then when they become ill they wanted to come back and have an assisted death, under the terms of this Bill they would not be eligible because they would not have been ordinarily resident in this country for 12 months—this country being England and Wales.

The noble Lord’s second question was about somebody from Northern Ireland who comes here and asks for an assisted death. Again, they would not be eligible because the assumption under his question was that that person’s ordinary residence was in Northern Ireland. His third question was about why opinion is not satisfied. It seemed to us that opinion is enough in relation to this because it would be done basically by asking a number of questions and you would assume that the answers that you had would be honest.

[Baroness Coffey (Con)]

I notice that the noble and learned Lord has taken interventions. I do not believe that he has addressed my issue about the risk of tourism. He has used interchangeably during his explanations “permanently” and “ordinarily resident”. No distinguished lawyer here has countered the view that you can be ordinarily resident in more than one country at the same time. We have the broader issue that case law and NHS guidance can change this. It really needs revisiting. Will he try to address my issues about tourism and this Bill?

[Lord Falconer of Thoroton (Lab)]

My Lords, I honestly think that is a smokescreen. The Bill says, in a way that the law has recognised time and again—because this Parliament has to make choices from time to time about who gets benefits—that the benefits of the Bill should be given only to those who ordinarily live in this country. That phrase has not given rise to problems. The courts understand it, doctors understand it and the panels will understand it. If we in this Parliament cannot say that we will give rights only to those who are ordinarily resident, which is a phrase that means something, we will never be able to determine who is entitled to our rights. I say, with the greatest respect to the noble Baroness, Lady Coffey, that what we are trying to do in the Bill is clear. I invite the noble Baroness, Lady Finlay, to withdraw her amendment.

[Baroness Finlay of Llandaff (CB)]

My Lords, I will now sum up at the end of this very interesting debate. I am relieved to hear that people do not want doctors to be immigration officers. I am a little disappointed that the noble and learned Lord, Lord Falconer, has not accepted the amendment from the noble Earl, Lord Howe, because it is so straightforward. If, as the noble and learned Lord says, it would not be a problem for over 99% of patients, it would not be a problem to be satisfied. It would add a degree of security for doctors who are being asked to provide these assessments of eligibility.

I was also glad to hear from the noble Lord, Lord Harper, that those working for the Foreign, Commonwealth and Development Office, in embassies or wherever, are covered, and that that is not a problem. The noble Lord, Lord Carlile, raised the issue of those working as volunteers abroad for a very long time. I hope that the ability that applies to Foreign, Commonwealth and Development Office workers also applies to those working for charities, such as some of the major charities, who may be abroad for a very long time but view their permanent home as the UK.

I remain concerned about Jersey and the Isle of Man. What conversations has the noble and learned Lord had with the Public Bill Office about how to get this in scope? My attempts have failed, and I understood that here in the House of Lords we are not able to widen the scope of the Bill. I worry that without widening the scope of the Bill, we will not address it, and those doctors treating patients with all kinds of really serious illnesses, particularly in Liverpool, as referred to by the Front Bench, and in Southampton, could inadvertently find themselves in a very difficult position, which would be an unintended consequence of this legislation.

[Lord Falconer of Thoroton (Lab)]

I do not know whether the noble Baroness has discussed with the Public Bill Office the BMA’s proposal in relation to this, which is that it is not a crime under the Suicide Act if the assistance you give is not unlawful in the Isle of Man or Jersey. The idea that that is out of scope seems obviously wrong, because the Bill is crafting an exception to the Suicide Act. If the noble Baroness and I go to see the Public Bill Office and explain that, I would have thought that there would be no difficulty about the scope.

[Baroness Finlay of Llandaff (CB)]

I would be delighted to go with the noble and learned Lord, because he may have a little more success. The Public Bill Office has been unfailingly helpful. This is no criticism whatever of it; it has worked incredibly hard. With that and the promise of going to see it with a matter of urgency, I beg leave to withdraw the amendment.