Terminally Ill Adults (End of Life) Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

During Covid, we recognised the need to treat care homes specially and differently from anywhere else. Sadly, in that instance, it was at the great expense of care homes and the elderly, who were locked away from their family and loved ones and in many instances died as a consequence of the wrong policy. However, during that time, we also recognised that we, as a society, have a special responsibility to the elderly in care homes, and therefore surely this Bill can create special measures for people who live in care homes. All we are asking for, very modestly, is that a proper clinical, holistic assessment is done of capacity and that it is not left to chance.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to my noble friend Lord Blencathra for opening the debate on this group. He is right that we should consider carefully how the most vulnerable will be protected under this legislation. Having a multidisciplinary specialist review before a person in a care home is certified to have capacity seems an interesting and a sensible safeguard. It was not clear to me whether the five working days is from the date of the review or from the date of the findings of the review, but no doubt that could be looked at and clarified.

Of course, generally, social care is a policy area that needs attention. We know that too many older people receive inadequate care in old age, and I must say that it seemed to me that the personal experience of the noble Baroness, Lady Hayter, and that of my noble friend Lord Deben can both be right. It is likely that there are excellent care homes and care homes that need improvement. I am afraid that that is probably the society we live in.

Effective communication is a challenge that older people face. This is an obstacle for the process under the Bill for assessing capacity. It therefore seems sensible for specialists to be involved when the person requesting assistance is in a care home. We also have to consider the risks of institutionalisation, which I know from experience can certainly be a factor for people in care homes. I would be grateful if the Minister could confirm what the Government’s conclusions are on this proposal and its workability. Would it be prohibitively costly or could it be delivered?

On the amendment from my noble friend Lady Eaton, this additional process and heightened evidential standard for persons in care homes is a constructive and interesting suggestion. I invite the Minister to update the Committee on whether the Government have considered the two separate proposals in this group and come to a view on which would be the more workable and effective if implemented. That assessment would not only be helpful to the Committee but might enable the House in due course to make a more informed decision on the best way to improve this part of the Bill on Report. If that assessment has not yet been made, perhaps the most appropriate way forward would be for Ministers to write to the Committee to update it, at some point between now and Report.

[Baroness Merron (Lab)]

My Lords, I am most grateful to all noble Lords who have contributed to this debate on assessing capacity in care homes. As noble Lords will be aware, my remarks will be limited to areas where the Government have assessed that there may be major technical or operational workability concerns.

I say to the noble Lord, Lord Blencathra, that that will include matters relating to the ECHR. The noble Lord, Lord Carlile, already picked that up in his own characteristic way, but I gently say to the noble Lord, Lord Blencathra—I know he is aware of this because of his experience—that Government Ministers have a duty to advise your Lordships’ House of implications. As I explained in the last group, decisions on the ECHR are ultimately for Parliament. I am sorry to frustrate him with repetition, but it is appropriate to the relevant considerations. I will just ask him not to listen if he feels it is very irritating.

This may be helpful to the noble Lord, Lord Wolfson, as well. Amendments 112 and 111, in the name of the noble Baroness, Lady Eaton, spoken to by the noble Baroness, Lady O’Loan, aim to strengthen safeguards for care and nursing home residents by ensuring that capacity in these cases is established through specialist clinical assessment and that capacity assessments seek to rule out reversible medical causes of impaired or fluctuating capacity. The Government consider that Amendment 111 may be inconsistent with the Mental Capacity Act’s assessment framework, which does not require enhanced assessment for certain groups. I dealt with this in more detail in the last group. By requiring expert psychiatric input before capacity is confirmed, Amendment 112 could create inconsistency with the MCA’s presumption of capacity and the principle of proportionate, decision-specific assessments.

Amendment 110A, tabled by the noble Lord, Lord Blencathra, would affect care home and nursing home residents’ capacity assessments and require expert psychiatric input before capacity is confirmed. Again, this could create inconsistency with the MCA’s presumption of capacity and the principle of proportionate, decision-specific assessments.

If passed, each of these amendments would lead to a difference in treatment between care home and nursing home residents and all other citizens in assessments for assisted dying. That difference in treatment—the noble Lord, Lord Blencathra, may wish to close his ears at this point—could give rise to challenge under the ECHR, particularly Article 8, which refers to respect for private and family life, and Article 14, which concerns the prohibition of discrimination. The differences in treatment would need to be justified, necessary and proportionate.