Terminally Ill Adults (End of Life) Bill

Baroness Cass Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

We are not sure that the Mental Capacity Act is the best way in which to judge capacity in this case, and this Bill goes along with it. I ask the noble and learned Lord to think again. There have been amendments to disapply Sections 3(2) and 3(3) of the Mental Capacity Act for this purpose, and we have heard very good proposals of alternatives. Surely something could be worked out.

[Baroness Cass (CB)]

I want to make two very brief points. First, I support the point made about proposed new subsection (6)(g), to be inserted by Amendment 115, by the noble Viscount, Lord Colville, on being clear about whether this is a medical treatment. If it is a medical treatment, it drives physicians continuously to ask people whether they would wish to receive assisted dying.

The issue is not just in Canada. A very close friend of mine recently died in the Netherlands. She was so persistently asked whether she wanted to consider euthanasia there that she chose to die in a Jewish hospice—the one place where they would not persistently ask her that question because they do not carry out euthanasia in that particular hospice.

I would like to make another, more broad point about Amendment 115, which I strongly support. We have frequently had Chris Whitty’s opinion cited on the utility of the Mental Capacity Act because of familiarity. I would say one thing about that. We were incredibly lucky to have Chris Whitty as CMO during the pandemic—cometh the man, cometh the moment—as we had an epidemiologist in post. But he is a specialist in that area. A friend of mine who is a forensic pathologist specialised in freshwater drowning, but once he got into the witness box he was fair game for any pathology question and was asked about the appropriate temperature at which bloodstains might be washed out of clothes. Having very little familiarity with that, he said, “Well, according to my wife”, causing the defence council to jump up and say that he could not say that because it was hearsay. My point is that, if you asked me who I was going to trust on the issue of capacity—an epidemiologist or my noble friend here, who has practised all her life in psychiatry—the choice for me would be very clear.

[Lord Goodman of Wycombe (Con)]

My Lords, I will speak to my Amendment 113, which concerns a matter that has not previously been raised in the context of mental capacity, or I suspect my amendment would have been grouped earlier; it is about codes of practice. To explain it, I ask any noble Lord interested to turn to Clause 39(2) of the Bill, where they will find what it has to say about codes of practice, which is this:

“The Secretary of State may issue one or more codes of practice in connection with any matters relating to the operation of this Act not required under subsection (1) as the Secretary of State considers appropriate”.


It is a very broad provision concerning any codes of practice that might arise as a consequence of the Bill.

The Delegated Powers Committee, on which I sit, was very critical of this provision, and said the following:

“It may be that clause 39(2) is intended to be a ‘sweep up’ power in case the subject matter covered by the duty in clause 39(1) has missed something. However, such a wide power, with the potential to affect the extent of the legal risk incurred by those carrying out functions in a highly sensitive area of professional practice, should not be conferred as a ‘nice to have’ and requires a compelling justification … The subject matter of codes of practice should be set out on the face of the Bill to the degree necessary for Parliament to understand the subject matter and who might be affected and we therefore recommend that the power in clause 39(2) is removed from the Bill”.


My amendment does not go quite so far as the committee report suggested, but it does say that any code of practice issued under the Mental Capacity Act should not be issued unless

“a draft of the code has been laid by a Minister … before both Houses of Parliament, having engaged in public consultation, and … that the draft has been approved by a resolution of each House of Parliament”.

I therefore ask the sponsor of the Bill, in responding to this amendment, to be as helpful to the Committee today as he indicated he would be when he gave evidence on all matters, except approved substances, to which we will return in due course. I see that he is nodding, and I look forward to his response.

--- Later in debate ---

Before the noble Baroness, Lady Cass, comes at me, no, I cannot write to Sir Chris Whitty. I have no control over him. However, I find his evidence important and material because it is not as if there is a group of doctors who are particularly concerned with the capacity issue. A lot of them have to deal with it, whether they are capacity experts or not, because they have to be able to evaluate what their patients want and whether they are capable of making the decision. Chris Whitty, the Chief Medical Officer of the Government, is well placed to say what the best way is for those capacity decisions to be taken. I say that I will not write to him because I and the noble Baroness, Lady Finlay, are in exactly the same position; we can both write to him, but we both have no control over him.

[Baroness Cass (CB)]

I would never come at the noble and learned Lord, for whom I have the greatest respect. We de facto have to make changes to the Mental Capacity Act in the application of this, because, where a person does not have capacity, you make a best interests decision, but, clearly, we are not doing that in this case, so we are already deviating from how the Mental Capacity Act would work normally in relation to medical procedures. Where you think the medical procedure is the right thing, either the patient makes that decision or someone else would make it for them in their best interest, so we are already deviating.

Secondly, people will be trained specifically to carry out this work, so we have four years to train people to do this appropriately. I do not think slightly different training in this setting, compared to capacity in other situations, would be too burdensome for practitioners.

[Lord Falconer of Thoroton (Lab)]

On the Act not applying, the noble Baroness is absolutely right that best interests never come into it, because if the patient does not have capacity, that is the end of the matter and they cannot have an assisted death. It is worth pointing out that the Bill says:

“In this Act, references to a person having capacity are to be read in accordance with the Mental Capacity Act 2005”.


All this Bill is incorporating is the reference to capacity, not the second half of the Mental Capacity Act, which sets out what happens if you do not have capacity.