Terminally Ill Adults (End of Life) Bill

Baroness Finlay of Llandaff Excerpts

Friday 12th December 2025 Lords Chamber

Moved by

[Baroness Finlay of Llandaff]

16: Clause 1, page 1, line 10, at end insert—
“(ca) has not, for at least 12 months ending with the date of the first declaration, been deprived of their liberty under section 4A (restriction on deprivation of liberty) or 4B (deprivation of liberty necessary for life-sustaining treatment etc) of the Mental Capacity Act 2005, and”Member’s explanatory statement
This amendment would ensure that someone who so lacks capacity in one area as to be currently or recently deprived of liberty will not be found to have capacity for the decision to seek assistance to end their own life, which is otherwise a legal possibility under the Mental Capacity Act 2005’s approach to capacity.

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[Baroness Finlay of Llandaff (CB)]

My Lords, Amendments 16 and 114 propose that anyone who is currently, or was in the year preceding their first declaration, deprived of liberty under the Mental Capacity Act will be considered to lack capacity for the decision to seek an assisted death. Amendments 16A and 114A extend this to those on whom an application has been made but not necessarily completed. Given the data, there is good reason why these amendments from the noble Baroness, Lady Keeley, should be considered.

Section 4 of the Mental Capacity Act 2005 requires that decisions made on behalf of individuals who lack capacity are made in their best interests and with the least restriction of freedom. This amendment can only probe the eligibility assessment process because we are at a transition point from the overloaded deprivation of liberty safeguards system possibly to liberty protection safeguards. Implementation of the 2019 Mental Capacity (Amendment) Act, with the concomitant refresh of the MCA code to incorporate liberty protection safeguards guidance, is planned for early next year, but no firm date has been set.

Deprivation of liberty safeguards authorise arrangements that restrict liberty in hospitals and care homes for those aged 18 or over when necessary for care and safety in their best interest and there is no other way to look after them. A standard authorisation under Section 4A can be given by a local authority, valid for up to one year, to a hospital or care home after a series of six assessments within a 21-day period. Section 4B allows for an urgent, seven-day deprivation of liberty, renewable once, to sustain life or for vital acts pending a Court of Protection decision or while the standard process is under way.

Urgent DoLS applications arise from acute crises. In 2023-24, 58% of applications were urgent. Temporary incapacity in acute hospital settings is often due to acute delirium in cardiovascular events, infection or medication effects. Of course, when a person improved and regained capacity, the DoLS became inapplicable.

However, the system is completely overloaded. There were over 334,000 applications in England alone in 2023-24, taking an average of 144 days for assessment. Only 44% were fully assessed and only 19% were completed within the required statutory 21 days. This goes to the heart of the problem. As local authority records are not integrated with health records, neither the panel nor the assessing doctors in the Bill will always have details of applications and outcomes. Different medical record systems exist in different trusts. Access to GP records is variable, absent or very limited, because some GP practices have not signed to give trusts access to their GP records. There is no access to social care clinical information systems, no information sharing between social care and medical records, and no access to the details of safeguarding information held by local authorities.

Although police call-outs may trigger the GP being notified that a call-out has occurred, no details are given, meaning there is no access to police records of what went on. Even when psychiatry services ask, such information is not readily given from the police national computer network. We will discuss later whether a panel can access this information, as it may be a clear pointer to domestic abuse.

Without a requirement to even interview the family, how will anyone know what has gone on? Hence the amendment. The very fact that an impairment of capacity serious enough to precipitate a DoLS application has occurred should act as a yellow flag when eligibility is being assessed.

Although the numbers are relatively small, the 2023-24 data shows that 3% of fully assessed DoLS applications were rejected. However, it is noticeable that half were due to a change in circumstance and a fifth because the criteria were not fulfilled. I expect to be told that this amendment, intended to protect vulnerable adults, has adverse implications for individuals with temporary hospital-related incapacity, potentially restricting autonomy because they had had a previous episode of seriously impaired capacity. However, individuals with irreversible conditions, such as advanced dementia or lifelong severe cognitive impairment, may remain ineligible long term, which aligns with this safeguard’s intent.

I am grateful to my noble and learned friend Lady Butler-Sloss and my noble friend Lady O’Loan, who have supported this amendment, and to the noble Baroness, Lady Keeley, whose amendment to my amendment intends to increase safety by capturing the larger number comprising 56% of applications that had not been completed.

I anticipate that the Minister will say that this amendment poses legal difficulties for those who lack capacity when it was temporary but serious enough to prompt DoLS, as it creates a statutory presumption rather than case-by-case assessment for anyone with a DoLS or LPS history. I hope therefore that this short debate will mean that a previous impairment of capacity will act as a yellow flag: an indicator that risk may be elevated when an application is assessed.

It is known that an episode of impaired capacity serious enough to trigger restricted liberty can signal further episodes of delirium in over a fifth of people, or be the first pointer to dementia. I hope this will encourage recognition by the noble and learned Lord, Lord Falconer, of the need to re-examine the balance of safety in cases where unrecognised indications of impaired decision-making could all too easily lead to an excess of poor assessments and inappropriate assisted deaths. I beg to move.

Amendment 16A (to Amendment 16)

Moved by

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[Baroness Finlay of Llandaff (CB)]

My Lords, I am grateful to those who have contributed to this discussion. I made it clear at the beginning that I was probing. I am particularly grateful to the noble Baroness, Lady Hollins, for pointing out that one of the difficulties for assessors is in knowing how reliable the information that they can access is. It seems that we need a way to make sure that people who could be particularly at risk have an enhanced level of assessment for the protections relevant to them.

I am sorry; should I not be speaking now?

[Lord Falconer of Thoroton (Lab)]

I apologise to the noble Baroness. I was being told by the Whips that my noble friend Lady Berger has to withdraw her amendment first. I apologise for the discourtesy.

[Baroness Finlay of Llandaff (CB)]

That is fine; I was hoping to sum up, and then I would willingly hand over to the noble Baroness, Lady Berger, to withdraw the amendment. I think that we need to make sure that the face of the Bill makes it clear that there is a level of particularly enhanced assessment for several groups of people—this will be only one group—who are, for whatever reason, particularly vulnerable. I hope that the number of meetings that we have will include everybody who has a concern over this, going forward to Report stage. It is of concern that the code of practice for the Mental Capacity Act has still not finished being updated. I hope that we will see an updated version next year, because the one currently in place is, in some ways, a little bit out of date, given the modern world we live in. With all that, if the noble Baroness would like to withdraw her amendment, I will be delighted to withdraw mine.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I shall speak to my Amendment 26 in this group. It is important to remember that Clause 1(1)(d) of the Bill simply states

“is registered as a patient with a general medical practice in England or Wales”.

It does not require anything more than that. I will explain why I have tabled an amendment looking at a home visit, because, as my noble friend Lady Gerada has said, patients will be looked after by many different members of a primary care team but will be legally listed and registered with the named GP, because that is how the funding flows to the practice for care delivery. We must not confuse the two, and the notes held in the practice are important.

The person may actually be receiving most of their care in secondary or tertiary care, as the noble Baroness, Lady Falkner of Margravine, has pointed out, but if this qualifying condition is to have any meaning, there must be substance in it, with a clinical record that can be drawn down in assessment. That does not mean that the GP has to have anything to do with providing an assisted death, but it seems sensible that the clinical record, which will have the record from previous GP practices if the patient moves, can be drawn down.

Data suggests there has been a fall in home visit rates over time. Most home visits undertaken by primary care team members are indeed to people who are seriously ill. The data shows that in October 2025 there were over 462 home visits by GPs, which comprised about 1.7% of all face-to-face consultations registered by a practice that month, or 1.1% of all contacts. While that percentage may seem low, particularly as care moves into the community, it is important to remember that the pressures on primary care teams have increased, with more listed patients per GP and more complexity. In addition, there is less continuity of care, with patients often seen by several different doctors in a practice, and different members of the team. During a hospital stay, patients are likely to encounter, on average, 18 to 27 different healthcare professionals. All those conversations and details should be entered in the hospital record, but they may not be well entered, and the information sent to the GP after admission may be a rather simplistic summary about more of the physical aspects but not necessarily psychosocial details that may be recorded somewhere in the depth of a hospital record.

Why does all this matter? It is because the living conditions and atmosphere in a home reveal an enormous amount about pressures and influences on a person who is ill in a way that is never ascertained in the consulting room. The well-groomed patient’s home can reveal overcrowding and poverty, where others in the household are dismissive or even verbally abusive in front of the healthcare professionals who visit. For most patients, a home visit can allow the person the confidence on their own territory to talk about their hopes and fears in depth, and about why they seek an assisted death. They are not intimidated by the hospital or GP venue, knowing that other patients are waiting outside and aware that others may notice that they have been crying when they leave through a crowded waiting room.

In evidence to the Select Committee, we heard from the Royal College of General Practitioners, of which I declare I am a fellow, that any assisted dying service should be seen as a stand-alone, specialised service that GPs and other healthcare professionals may opt in to provide. They stated that it is neither appropriate nor practical for this to be deemed core GP work, and they do not want any blurring of lines with the palliative care that they provide, which has already been described by my noble friend Lady Gerada. That position was confirmed in a motion at the RCGP Council last week. The GPs were clear in evidence to the Select Committee that they have no spare capacity in the working day to take on additional duties related to providing an assisted death. For some, a lifetime of 10-minute contacts will have built long-term relationships, but that does not apply to everyone.

As the Bill does not require any inquiry of the family about the person’s circumstances, the clinical record from the GP practice about a home visit may be the most revealing way to ascertain the true situation and decrease the risk of coercion being missed, as my noble friend Lady Grey-Thompson has referred to. The GP record must be available to whoever is undertaking the assessment and assisted death service provision.

In terms of ability to see the GP, I support the evidence that we heard from Caroline Abrahams of Age UK, who said that older people often report that better access to a GP would make a huge difference to their world, and that two in three struggle to make appointments or communicate with their GP. Sadly, I am afraid the evidence in Wales is that in 2023 two-thirds of patients said to the Older People’s Commissioner for Wales that they had difficulty in getting an appointment, and that had gone up from one-third in 2022.

The Demos commission report, which was led by the noble and learned Lord, Lord Falconer, found that a doctor supporting the person and their family

“are the key elements that … should be included in any future framework for assisted dying”.

So I ask him: is that the reason why the requirement to be registered with the GP is included as a qualifying condition? Perhaps he could clarify a bit further.

The noble and learned Lord’s commission report envisaged that the assessing doctor would know the patient well and have an established relationship. In his “Newsnight” interview, he also confirmed that if the patient was young, it would be a sensible investigation for family members such as the parents to be interviewed if that young person was asking for an assisted death. Does he recognise the importance of putting some kind of stable primary care relationship at the heart of information that is available about the circumstances of the patient?

[Lord Falconer of Thoroton (Lab)]

It might help the House if I answer those questions, because they are rather at the centre of the debate. Before I get there, I should say that, in the view of the sponsors, the requirement to be registered with a GP practice reflects the reality, which is that in some cases you will have a relationship with your GP but in other cases you will not, despite your best efforts to do so. The reason for the relationship with the GP’s practice was that it provides a central place for records to be kept. The noble Baroness, Lady Fox, rightly identified myriad references in the Bill to GP practices, and noble Lords will see that it is informing the GP of every step that is taken. As ever, though, the noble and learned Baroness, Lady Butler-Sloss, puts her finger on it: you cannot possibly rely on people having an established relationship with their GP, and that is not the protection.

The point made by the noble Baroness, Lady Gerada, seems to be key, and it is reflected in what the noble Baroness, Lady Finlay, has said. The people looking after you are those who should be putting their input into what the right course is. The wrong answer to this is ludicrous hurdles that you have to get over. I do not call the speech of the noble Baroness, Lady Lawlor, ludicrous, and I unreservedly withdraw that in relation to her, but having to have seen your GP six times in the previous years is not the way to deal with it. Surely the way to deal with it is to put in the Bill—and I am more than willing to discuss how we do that—how the multidisciplinary team, which might be GPs, oncologists, nurses, physiotherapists or social workers but it might not, get to have some input into it.

What I am taking away from this debate is this: do not think about the GP being able to provide it, because they will in some cases, but they will not in others. Think instead about how you get the multidisciplinary team who are looking after the patient who wants an assisted death to give the appropriate input. Again, the right course is to talk to the people who have some expertise in relation to this and think how we build that into the Bill. It is not in the Bill at the moment, but I think we can put it in.

[Baroness Finlay of Llandaff (CB)]

Can the noble and learned Lord clarify whether he would consider amending the Bill to ensure that information is sought from those who have provided care to the patient during the course of the serious life-limiting illness that has led them to request an assisted death, whether that is from primary care, a hospital or a private sector provider? Would that also include information from members of the family, as he suggested in the Demos commission, when the person is young and when there are circumstances that would be particularly pertinent?

[Lord Falconer of Thoroton (Lab)]

Yes, we should get the information from those responsible for the care of the individual in a health sense. However, I am not willing to commit myself to that in relation to the family. The person making the decision should think, “What should we do about the family?”—but what if the patient has not seen their family for a long time or are at odds with particular family members? I believe that it should be done very much on a case-by-case basis.

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[Lord Markham (Con)]

May I just offer a different perspective on this? It has been an interesting debate. One of the main reasons I am supportive of assisted dying is kindness—kindness to the people who are scared about the inevitable end of their life and kindness in that they face a lot of pain. They see assisted dying as a way of relieving themselves from that pain.

In this debate, are we saying that people in prison are not deserving of that kindness? People in prison have been deprived of their liberty because of the crimes they committed, and that is the punishment that they have been given in the face of the law. That is the debt being paid to society. But are we saying at the same time that they do not deserve the same kindness that we would give to others and that they should face pain because they are in prison, whereas others should not? That is my perspective on this.

[Baroness Finlay of Llandaff (CB)]

My Lords, I put a question to the noble Lord who has just spoken. I am really concerned—

[Lord Falconer of Thoroton (Lab)]

The noble Baroness is intervening on somebody who made an intervention on somebody else. We got a very severe talking to about that before, so I do not think that is allowed.