Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Sandhurst

Committee stage
Friday 30th January 2026 Lords Chamber

[Lord Harper (Con)]

My Lords, in moving my Amendment 70, I will also speak to my Amendment 78 and to Amendment 829 from my noble friend Lord Sandhurst. The first two amendments were originally tabled in the name of the noble Lord, Lord Hendy, who was unable to be here last week—although we did not get to them then—so I have taken them over in my name.

I will explain to noble Lords why they have been tabled. They are responding to concerns raised by David Green, a barrister specialising in industrial disease cases, and Michael Rawlinson KC, who wrote to a number of Peers, alerting us to the fact that the current drafting of the Bill can negatively affect some victims of occupational diseases. I will set out that concern and then the noble and learned Lord, Lord Falconer, can, I hope, respond to it in a more detailed way than he did in the letter that he circulated to Peers in the past day or so. I will also raise a couple of related issues that we will come to later in our debates and that concern similar issues.

The reference in the amendments is to “injuries” or “disease” that people get during their working life. The reason for including those words is to raise the following issue. If victims of occupational diseases opt for assisted suicide, their dependants, under my reading of it, would probably lose their right to sue whoever caused their disease under the Fatal Accidents Act 1976, unless this Bill specifically provided otherwise, which it does not currently.

I will give noble Lords an idea of the size of the issue. In 2023, 2,218 people in Britain died of mesothelioma, which is the prime fatal occupational disease. It is a fatal cancer caused exclusively by asbestos. By way of comparison, that is considerably more than the 1,624 road deaths that year and we know how seriously the Government take that issue; they have just published an entire road safety strategy to reduce that number. Many more died of lung cancer with asbestos as a causative factor, or of respiratory failure secondary to asbestosis or pleural thickening, or of other occupational diseases.

Since virtually all instances of mesothelioma are caused by asbestos exposure, and most asbestos exposure was occupational, most victims can sue a former employer—in reality usually represented by an insurer. The damages recovered are an important way of paying for medical and nursing care and, importantly, of providing for surviving dependants. Claims arising from these occupational diseases can be pursued during the lifetime of the victim or by their families after their death under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. A good deal of claims are pursued after death in this way for the benefit of families, partly because the prognosis following a diagnosis of mesothelioma is, sadly, relatively short. That is why so many families have to seek the damages rather than the victim being able to do so.

The key point is that the dependants of a deceased person can sue if, and only if,

“death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages”.

That is in Section 1(1) of the Fatal Accidents Act. The requirement is that the breach of duties caused the death, but the law that has developed on that section requires an unbroken chain of causation between the defendant’s breach of duty and the death if the dependants of the deceased are to recover damages. In general, an individual’s decision to end their life by suicide breaks the chain of causation between a defendant’s earlier breach of duty and the death. In other words, the law considers that the death has been caused by the choice of the victim and not by the negligence of the defendant.

There are narrow exceptions to this rule—for example, where the defendant’s breach was of a duty to prevent suicide, as it was in the Reeves case, or where the defendant causes a psychiatric injury that itself causes the suicide. But where an individual has full capacity—we know that they must have if they have used this Bill, if it becomes an Act, because we have debated that at length—and the defendant’s duty was decades in the past, the common law would regard a freely made choice to end their life as a novus actus interveniens. Forgive me if I mispronounced that, not being a lawyer, as I have said on many occasions. It is a new and different cause, breaking the chain of causation.

That would mean that the person who died of fatal mesothelioma would have their cause of death recorded by the coroner as an industrial disease, but Clause 38 as drafted makes provision for the cause of death in these cases to be recorded for coronial and certification purposes as an assisted death and excludes this cause from the category of unnatural deaths, meaning that there is no inquest. That means that the assisted deaths will necessarily not be certificated as being caused by industrial disease, even if that were the cause of the terminal illness that led the deceased to be eligible for an assisted death.

That means that, under common law and the Fatal Accidents Act, it would break the chain of causation between the former employer’s negligence and the victim’s ultimate death. That means that a victim of an occupational cancer with a limited life expectancy who would meet the criteria in the Bill—and who would probably face a painful and unpleasant death, even though that is not a criterion in the Bill, as we have debated—has a dilemma. They have a choice between prolonging their suffering but preserving their family’s right to damages and ending their suffering but losing a right potentially worth hundreds of thousands of pounds to the people they leave behind. At the moment, that is not dealt with anywhere in the Bill.

I have a specific question about that, and I will refer in a minute to what the noble and learned Lord said in his letter. But I also want to ask whether there are other areas where similar issues have not been thought about. Two come to mind, the first of which is members of the Armed Forces. I tabled an amendment, which will come up later, because the compensation schemes in the Armed Forces again would not, in my understanding, pay out if somebody got an occupational disease because of their military service. If they were to seek an assisted suicide, that would preclude them and their dependants from receiving compensation under that scheme. That is even more particularly a failure given the duty of care that the state owes to those who put their lives at risk on its behalf.

I would also be interested in understanding the interaction between this and the Government’s statutory diffuse mesothelioma payment scheme. In cases where there is no employer or insurer still in existence, or they cannot be identified, there is a statutory scheme, which I know a bit about; I took the regulations through Parliament as a Minister in the Department for Work and Pensions. That pays out on diagnosis. It means, potentially, someone whose employer was still around and on the hook who sought an assisted suicide would do themselves or their dependants out of compensation, whereas somebody whose employer or insurer was not around or not traceable and who qualified under the statutory scheme, which is paid out on diagnosis, would actually not do themselves— I think—out of the compensation. That seems an invidious position based on complete chance.

I do not know whether that has been thought about by the sponsors of the Bill. I would be interested to know the specific answers to those questions and whether there are other areas like this which have not been considered. If this had been a government Bill, as part of the process, other government departments would have looked at it, thought about these issues and would have made sure they were dealt with.

My final point is that the noble and learned Lord referenced this and dealt with it a bit in the letter that he circulated. He thanked my noble friend Lord Sandhurst and the noble Lord, Lord Hendy—whose name, as I said, was originally on these amendments—for their conversations. He said that he had tabled amendments to Clause 47, the reporting section of this Bill, which would require an early report about the impact. I welcome that, but I do not think it goes far enough.

If this Bill goes on to the statute book, there will be people whose legal position will be put at risk and damaged by what is in it. That is not going to be remedied by a report. If the report comes out and says “Yes, there is a problem”, it will require further primary legislation to fix it. It would be better if we understood what the issue is now and, if there is an issue, we should make sure there is an amendment tabled for Report which would deal with it—both for the Fatal Accidents Act and members of the Armed Forces.

In this area, it would be helpful if—I do not think this breaches the Government’s neutral position on the Bill—any other similar areas were identified so that we could deal with them with amendments on Report. That would be welcome. That was my purpose in tabling these two amendments. It is a very important area, and I look forward in due course to the answers from the noble and learned Lord, Lord Falconer. I beg to move.

[Lord Sandhurst (Con)]

My Lords, I will follow my noble friend and, I hope, be reasonably concise.

I asked for my Amendment 829 to be grouped with these amendments as it covers the same substantive ground. It was helpful that, about a fortnight ago, with the noble Lord, Lord Hendy, I met the noble and learned Lord, and we discussed this situation. Broadly speaking, there was acceptance. As I understand it, the sponsor of this Bill will be bringing forward an amendment which will tidy up various loose ends. The word “review” will be changed to “assessment”, there will be reference to victims of occupational diseases and one or two other tidying-up matters.

As has been explained—I can do this briefly, but it is important—as the Bill is drafted, it is highly probable that a victim of an occupational disease, such as asbestosis caused by the negligence of some tortfeasor, will, if they go down the assisted dying route, lose the right to recover damages for the injury that has put them in the position where they wish to die. This will also mean that their heirs and successors—their family—will lose that right to the Fatal Accidents Act claim.

If someone is suffering from a horrible illness, they may decide that they cannot bear it any longer and that they wish to terminate their life just a few months before the end. It would be quite wrong if their family and dependants, who deserve the money to cover themselves for the whole of the life that that person would have enjoyed but for the injury that created the asbestosis, should lose that entitlement to compensation because the victim has gone down the route of assisted dying. As the law stands—it has been to the Supreme Court or the House of Lords not in this context exactly but in others—it is quite clear that this would be a break in the chain of causation. It seems such to me and to others who are interested in this field.