Terminally Ill Adults (End of Life) Bill

Baroness Butler-Sloss Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

If the noble and learned Lord, Lord Falconer, believes that a higher threshold should apply, surely he should accept Amendment 115, which proposes to replace Clause 3—which refers to capacity in the Mental Capacity Act 2005, about which my noble colleagues will speak—with a new definition of capacity for the purpose of the decision to end your own life. Alternatively, he could accept Amendment 116, which provides for a court-based structure, or a combination of the two amendments, which would place that requirement clearly in the Bill. The amendments are both very well drafted, and they provide much greater clarity than the current clause.

[Baroness Butler-Sloss (CB)]

My Lords, it is usually necessary to have a rather greater capacity to make a will than to get married, which may perhaps be rather surprising. I am concerned about two groups of people: those with intermittent dementia who from time to time appear to be entirely normal and then the next day cannot remember anything that has happened, and people who are sectioned under mental health legislation.

Some years ago there was a famous case about someone who was sectioned. It was intended, in his best interest, to amputate his leg, but he absolutely refused. He was allowed to have the capacity to make that refusal, and in the end it was not necessary to amputate his leg. Consequently, it is quite tricky to determine whether that group of people who have been sectioned under mental health legislation will be seen to have sufficient capacity under the Mental Capacity Act.

It would be extremely helpful if the noble and learned Lord, Lord Falconer, could provide us, before Report, with what he sees as the changes that might be achieved to give special status. If he does not do that, we will spend a lot of time, all over again, on an issue that probably could be dealt with fairly quickly.

[The Lord Bishop of Newcastle]

My Lords, I will speak to Amendment 108, to which the right reverend Prelate the Bishop of Lincoln has added his name. He regrets that he cannot be in his place today, as he is interested in this amendment as lead bishop for the L’Arche community in the UK. With the Church of England, L’Arche strives to provide a positive and inclusive residential community in which adults with and without learning disabilities can live and grow together.

Health inequalities come into focus for much of the Bill. As we heard in the Select Committee on the Bill, people with learning disabilities experience significant inequalities in health outcomes. The learning disabilities mortality review found that 40% of the deaths of individuals with learning disabilities in 2023 were linked to avoidable, treatable or preventable causes—double that of the general population. As we heard from Ken Ross on behalf of the National Down Syndrome Policy Group, people with Down syndrome are likely to die 27 years earlier than their peers. He highlighted

“a systemic direct and indirect bias shown within the health service, which could also be linked to a lack of understanding of the needs, wishes, health, learning and communication profiles of this particular group”.

That bias is linked to what other people feel a life worth living is like, sometimes pejoratively described as a life without dignity.

We have heard about the high suggestibility of some people with learning disabilities, and the discrimination they face both in and outside the healthcare system. This is closely linked to capacity. It is clear that additional protections are needed for this group, which is why due consideration should be paid to this amendment.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I am not sure that I followed the subtlety of that question. The Mental Capacity Act 2005 is a tried and tested framework, which seeks to ensure that someone—a doctor, for example—has to make a decision about whether a patient is capable of deciding to withdraw from treatment. The doctors will be experienced in doing that and the legal tests have worked over the years. The noble Baroness, Lady Finlay, is right when she says that they are frequently not applied in the correct manner, but in this Bill the key thing is that there are safeguards so that those particular problems will not apply. That is why I am espousing quite strongly keeping the same test for the assisted dying Bill as in the rest of medicine.

[Baroness Butler-Sloss (CB)]

I have a practical question. What, then, is the noble and learned Lord going to offer us?

[Lord Falconer of Thoroton (Lab)]

I am not offering anything in the way of a different framework in relation to this. I am more than happy to discuss with people what sort of code of practice there should be. I say that not because I have not been listening—I have been listening as hard as I possibly can; but listening does, from time to time, involve disagreement as well. I apologise for disagreeing, but I do disagree with the two big schemes that have been put by the noble Baronesses, Lady Finlay and Lady Hollins.