Terminally Ill Adults (End of Life) Bill

Baroness Lawlor Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, I will speak in favour of my Amendment 110B, which would disapply Section 3(2) of the Mental Capacity Act, which, in effect, allows a person to be regarded as able to make a decision for himself

“if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)”.

The amendment would also disapply—as would Amendment 107 from the noble Lord, Lord Hunt—Section 3(3) of that Act, which allows for the fact that

“a person … able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision”,

as was so ably addressed by the noble Baroness, Lady Berger.

I will focus on what is additional in my amendment. In seeking to disapply Section 3(2), I bear in mind the aims of the Mental Capacity Act 2005, which is designed to empower people to make decisions about their life, including their healthcare and treatment. I stress that there is a world of difference between deciding against a course of continued, often physically difficult and stressful, treatment and deliberately deciding to take a lethal substance to commit certain and sometimes brutal suicide.

To deliberately choose to inflict self-harm and suicide is a very serious matter. It requires a person to know and understand the difficult and complex components of such a decision; the physiological effects of taking a lethal substance; the consequences of death or, as we have heard, the potential survival with excruciating pain; the finality of such an irreversible decision; the questions that it raises for your family and friends; the implications for your children, grandchildren and siblings; the example and precedent that it sets for young and old alike; and the moral consequences for our society as a whole. Indeed, one consequence will be to chip away the foundations of the support that we rightly give to suicide prevention and people who are suffering from a terminal illness who want palliative support.

These are complex questions, as is each of the implications raised. Giving a downsized simplistic version of the information that is judged to be appropriate to someone’s circumstances might simplify the information to the extent that he may indeed appear to understand the information because he is given an explanation of it in a way that is appropriate to his circumstances. But that should in no way be taken to mean that the person is judged to have capacity for so momentous a decision as taking their own life.

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[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.

[Baroness Lawlor (Con)]

If the noble and learned Lord is not going to write to Sir Chris Whitty to find out further, can he remind us to what evidence he referred when he gave his judgment that the Mental Capacity Act 2005 was suitable for the purposes of this Bill?

[Lord Falconer of Thoroton (Lab)]

He gave evidence both to the House of Lords Select Committee and the Commons Select Committee, where he gave his opinion that having two different tests for mental capacity was a bad idea. He gave as a particular reason for that the fact that it would be inappropriate and difficult for doctors to apply the capacity test in one room about the withdrawal of treatment and in the other about an assisted death. That was the material he relied on. We are each capable of evaluating that argument for ourselves. If the noble Baronesses, Lady Lawlor or Lady Finlay, would like to interrogate him further on that, be my guest.

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[Lord Falconer of Thoroton (Lab)]

I agree that there are bespoke decision-making processes in existence. It is not the law; it is how it works in practice. Through codes of practice, it will be possible to develop appropriate methods of dealing with it.

[Baroness Lawlor (Con)]

I have difficulty with the noble and learned Lord’s answer in respect of the Mental Capacity Act. He is absolutely right to say that, if you do not have capacity, you cannot avail yourself of this, but the Mental Capacity Act also says that you should not be judged not to have capacity if, to paraphrase, you cannot retain relevant information over a period of time, as referred to in Amendment 107, from the noble Lord, Lord Hunt, or, as referred to in my amendment, you can understand relevant matters in simplistic, visual or other ways appropriate to you. To my mind, that suggests that the Mental Capacity Act, in making exceptions about having capacity, is actually unsuitable for this. We hear all the time about the earlier part—and the noble and learned Lord is absolutely right—but it is those exceptions to the judgment on having capacity that worry me. They are not suitable for this. Will the noble and learned Lord explain why that inconsistency in judging capacity is suitable for the measure that he is proposing?

[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.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I would like to provide some information to the Committee which I think supports these amendments quite well. Care England, which has 122 care providers, consulted its care providers some weeks ago. It found that:

“84% have not been consulted on the Bill or its implications. 24% said staffing would become very difficult due to conscientious objections, with a further 16% expressing similar concerns. Only 14% reported staff being willing to participate in the whole procedure … Only 13% said they could manage assisted dying in their Homes. Only 27% reported 24/7 access to specialist palliative care support on site”.


This demonstrates that the care home sector itself has been very worried about how it would cope with this. Sadly, it also demonstrates just why not having specialist palliative care in scope on this Bill has created quite so many problems.

[Baroness Lawlor (Con)]

My Lords, I will speak in support of Amendment 111 in the name of my noble friend Lady Eaton. This would require a higher bar for proving capacity in care homes and nursing homes. The noble Baroness, Lady O’Loan, has already referred to the data: the evidence of higher cognitive impairment in 70% of care homes, the failure of MCA assessments in 15% to 25% of them, and the incidence of dementia. I will not recount the other data; I have cut it out of my speech.

There is also the very mixed picture we get of care homes and nursing homes. One example was a recent—well, not that recent—undercover BBC programme about Whorlton Hall in County Durham, a hospital for patients with learning disabilities and autism. The evidence was shocking. It was described by specialists in the subject as amounting to psychological torture.

Apart from the problems that we have in care homes with giving patients the ability to use capacity because of all the counterfactuals that exist and the impossibility of accurately establishing capacity, I reflect on the potential harm resulting from another factor, a danger we should bear in mind—that from the state. Officials bureaucratise a system in a way that endangers the frail and the elderly and, under this Bill, particularly endangers care home residents, some of whom have been misdiagnosed as having capacity when they do not, and go on a path to suicide. We have already heard mention of the Liverpool care pathway in that connection.