Terminally Ill Adults (End of Life) Bill

Debate between Lord Gove and Lord Empey

Committee stage
Friday 14th November 2025 Lords Chamber

[Lord Gove (Con)]

My Lords, I speak briefly in support of the point made by the noble Baroness. I entirely understand why many Members of the Committee regard the suggestion to replace “capacity” with “ability” as wholly inadequate. The challenge that has been made by my noble friend Lord Markham and others is entirely fair enough, but the definition of “capacity” in the Bill itself is inadequate.

It is the case that the Mental Capacity Act was not designed for this purpose and that this legislation has been retrofitted to use the Mental Capacity Act because inadequate effort was put into defining the ability of an individual to make this decision in an appropriate way. It is the case that the Office of the Parliamentary Counsel has made it clear that the effort to put this Bill together was “done on a shoestring”. It is also clear, as the noble Baroness pointed out, that the Royal College of Psychiatrists—the people who are responsible for addressing mental capacity—said that assessing a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding than assessing capacity for treatment decisions, which is the purpose of the MCA.

We have been told by those responsible for the mental health of vulnerable people that the safeguard that we are about to legislate for is inadequate. More people will be placed at risk by its inadequacy. We may feel that the noble Baroness, Lady Finlay, in putting forward “ability”, is failing to meet the needs of the legislation. However, it is not her responsibility, but our collective responsibility, the promoter of the Bill’s responsibility and the Government’s responsibility to ensure that psychiatrists and this House can be satisfied that the threshold is sufficiently high.

We all recognise that, while this Bill may be about respecting personal autonomy, personal autonomy is not sovereign. We recognise that there may be circumstances in which that right cannot and should not be exercised. The promoters of the Bill have been very clear that they want to draw the lines narrowly to ensure that this is available only to people who are consciously capable at a time when their life will automatically end within a certain period.

[Lord Empey (UUP)]

Does the noble Lord agree with me that one of the issues, which has been sporadically mentioned, is the inconsistency of capacity or ability brought about by the interaction of certain drugs on an individual? They may be lucid at a particular point in time, but not lucid at another. Under our current proposals, the people who would be making that judgment do not even have to know or to have treated that person. Surely that has to be dealt with in any definition.

[Lord Gove (Con)]

The noble Lord is absolutely right. Again, there has been some debate about the evidence from psychiatrists and the reasons why they expressed doubts, but that evidence is plentifully available to Members of this House.

As a number of Members have made clear, the work of Alex Ruck Keene KC and the Complex Life and Death Decisions group of King’s College, which is available to this House and was examined in the Select Committee, makes it clear that the Mental Capacity Act is inadequate. It is inadequate to deal with the concept of suicidal ideation that occurs. It is inadequate to deal with the fact that capacity fluctuates, and that fluctuation can be affected by mental health and well-being in its broadest sense, as well as by other syndromes and conditions.

The psychiatrists would not have intervened as they did if they had felt that this was a matter that could be left to one side, a matter that was entirely, as it were, within the scope of parliamentarians or legislators to shrug their shoulders and to accept. They have sent a message to us that the Bill as framed endangers those who are most vulnerable. Can we really proceed on the basis of the MCA, a piece of legislation conceived at a different time for a different purpose and rendered in the eyes of the professionals as not the correct way to go forward?