Terminally Ill Adults (End of Life) Bill

Debate between Lord Sandhurst and Lord Falconer of Thoroton

Committee stage
Friday 30th January 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, there are effectively two entirely separate issues raised by this group of amendments. The first is whether we should extend the current eligibility to people who have an inevitably progressive illness or disease to somebody who is terminally ill because they have injuries—for example, from a car accident—that might make them die within a specified period.

I was not sure whether the noble Lord, Lord Harper, was pressing that as an amendment, because the thrust of his remarks was much more focused on the effect on the Fatal Accidents Act. Whatever his position, I am afraid that I am not in favour of that amendment because the whole Bill has been put together and the argument for it has been based on people who are terminally ill. That is very different, for a whole variety of reasons mentioned by people, from somebody who is the victim of an injury.

I can see that people might say there was considerable moral equivalence, and the noble Lord, Lord Hendy, was right to say how persuasive he was when I spoke to him in relation to it. However, my clear view is that we should not extend the Bill beyond its current eligibility. I should also make absolutely clear that the wording of the Bill is clear; there is no prospect whatever that a court could construe the words “illness” or “disease” as meaning “injury”. What we send from Parliament will be the way it is read.

[Lord Sandhurst (Con)]

I am surprised by that because mesothelioma is an illness or disease caused by the injury—and that injury has been inflicted by the wrongdoing.

[Lord Falconer of Thoroton (Lab)]

I completely agree with that analysis, but it does not mean that if you have mesothelioma you are not suffering from a progressive illness or disease. That is different from somebody who is injured and has an injury that cannot be cured and was plainly caused by, for example, a car accident. I am grateful to the noble Lord, Lord Sandhurst, for making that point, because I was going to say that, when we are talking about, for example, an illness caused by smoking or a disease caused by industrial waste, that does not make it any the less an illness or disease. The Bill is not interested in how you got lung cancer or bowel cancer; it is interested only in whether you have an illness or disease.

The second point is of considerable importance—the question of the Fatal Accidents Act. I do not think that anybody in the Committee wants somebody who has, for example, mesothelioma to be deprived of any claim that they may have against somebody who has committed a tort in giving them mesothelioma. They should not lose that right as a result of taking an assisted death. My noble friend Lord Hendy made the important point that somebody who might want an assisted death should not be deterred from it because they worry that that might affect it. For me and for the Bill’s sponsor in the other place, the only question is: what is the best way to deal with that? One of the possible answers is to have a considered review that will report before the Act comes into force. There is a little difference between what I am saying now and what the noble Lord said. I have absolutely no desire to test this by a few court decisions early on. We have to resolve this before that happens.

That is why my Amendment 786A requires the Secretary of State to produce a report about the effects of the Fatal Accidents Act within “the first reporting period”—that means within 12 months of the Bill being passed—which is more than two years before it would come into effect. Plainly, the intention is that the report be given and then whatever necessary steps there are that have to be taken to deal with the position in tort can then be taken, if necessary, by primary legislation.

I think what the noble Baroness, Lady Finlay, meant in her speech was, “That is not good enough. You need to deal with the Fatal Accidents Act now, in the Bill.” There was no real sense one way or the other. Obviously, I will consider what she and others have said. If an amendment were tabled on Report saying that this had to be dealt with then and there—by which I mean a provision that said words to the effect of, “You do not lose your rights under the Fatal Accidents Act because you have an assisted death if you otherwise had them immediately before the assisted death”—it would be for the House to decide in relation to it.

The reason why I am advancing a review approach rather than nailing it down in the way proposed by the noble Baroness, Lady Finlay, is that it gives every single angle the opportunity to be looked at. But it would be for the House to decide which was the better way of dealing with it. There is no doubt that, one way or another, the point needs to be dealt with.

Three other points were raised. First, what about the statutory mesothelioma scheme, which makes provision for the payment of compensation? It is dealt with by regulations. We would need to look—actually I cannot look at them, but the Government would need to—at the regulations. I anticipate that there would be no real issue for the Government in making sure that an assisted death was not prejudicial to someone under that.

Secondly, on statutory compensation—I may have misunderstood the question but the noble Lord, Lord Harper, will help me with this if I have—statutory compensation for the military might have been what he had in mind, under the various statutory compensation schemes. Again, they are in the hands of the Government and we need to see what those statutory compensation schemes say.

The final point, made by the noble Baroness, Lady Finlay, was about insurance policies. As she will know, they depend entirely on the terms of the insurance policy and it is difficult to deal with the terms of an insurance policy in an Act of Parliament. However, I am grateful to everyone who contributed to this debate.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Sandhurst and Lord Falconer of Thoroton

Committee stage
Friday 14th November 2025 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

That is very well put and is exactly the question. Is it appropriate to bring the Mental Capacity Act into this Bill? I understand that whether you have an assisted death is an incredibly important decision. You cannot remove the word “capacity”, so you have to reject the amendment from the noble Baroness, Lady Finlay.

Her Amendment 115 effectively draws on how the Mental Capacity Act 2005 is currently drafted, except it adds two things. It removes the presumption of capacity and, separately, it requires the person making the decision to be aware of a variety of things that are connected with their illness. To summarise, the way the Mental Capacity Act operates at the moment is that if you are unable to understand information relevant to the decision, to retain that information, to use and weigh that information or to communicate your decision, you do not have capacity under the current Mental Capacity Act. The extent to which the things that the noble Baroness, Lady Finlay, has referred to in her amendment would be relevant would have to be weighed in the context of the decision that has to be made.

I am more than happy to debate whether we need to make the changes to the Mental Capacity Act that she is suggesting. For my part, I do not think we do. One thing that is absolutely clear is that the amendment proposed, as the noble Lord, Lord Sandhurst, identified, is completely ridiculous. You cannot remove the question of capacity from this choice. Putting aside some detail hurdles, there are two hurdles that need to be overcome in how this Bill is constructed. You have to be capable of making the decision, as the noble Lord, Lord Wolfson, said, and—completely separately—you have to make that decision completely voluntarily. It has to be your own decision, not the product of pressure.

We have had—and I say this with warmth and respect—a rambling debate going over a whole range of issues, miles away from the question of whether one should remove the word “capacity” and put in the word “ability”. If this House wants to make the law completely confused in this area, either put in the word “ability” or put in “capacity and ability”. I echo the speech of the noble Baroness, Lady Hayman, when she says we have to approach this in a grown-up manner, and to remove the word “capacity” is not a sensible way to deal with this.

I also echo those who have said that the idea of running two systems at the same time—the Mental Capacity Act system and the separate system proposed by the noble Baroness, Lady Finlay—is wrong and confusing. I congratulate the noble Baroness, Lady Fox, for spotting what the right decision is. Of course, under the Mental Capacity Act some unimportant decisions are taken, but a decision such as whether to have the ventilation removed from you if you have motor neurone disease, that will almost certainly lead to your death, is without a shimmer of a shadow of doubt a life and death decision.

The Chief Medical Officer of England and Wales, in evidence to the Lords Select Committee, said:

“it is far better to use systems that people are used to and that are tested both in practice and, where necessary, in law”.

He went on to say:

“I have a concern that you could have a conversation in one bed in a hospital where someone is talking about, for example, an operation where they might well lose their life, because they are frail and there is the operative risk, done under the Mental Capacity Act, and, in the next-door bed, someone is trying to do the same process of having a difficult conversation about someone who might die, or could definitely die, as a result of that decision, but using a different legal framework. The risks that that could lead to confusion are not trivial”.


I also echo what the noble Baroness, Lady Browning, who sadly is not in her place, said. There are problems about practically every aspect of how various parts of the health service work, but she was part of a process that considered how the Mental Capacity Act worked. The broad conclusion was that it was a good, workable Act, and we should not stray from it in this particular case. I invite the noble Baroness to withdraw her amendment.

[Lord Sandhurst (Con)]

Before the noble and learned Lord sits down, may I just make it absolutely plain that I said that capacity was necessary but not sufficient. I am not stuck with whether it should be “and ability”, but I was absolutely plain in my very short speech that capacity was necessary but not sufficient.

[Lord Falconer of Thoroton (Lab)]

I was picking up on the word necessary. What the noble Baroness, Lady Finlay, is suggesting is that we remove the word “capacity”. I do not know if I misunderstood the noble Lord, but that is what I thought he was saying.

[Lord Sandhurst (Con)]

I wanted to make it plain because some people listening to the noble and learned Lord might have thought I had not said that.