Terminally Ill Adults (End of Life) Bill

Earl Howe Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I support Amendment 107 and just wish to ask a few questions regarding the amendment. Along with my noble friend Lady Coffey, I note that when the noble Lord, Lord Carlile, brought forth his “bring back the judge” amendments, the MCA exited the Bill under that requirement. In relation to the MCA, it was useful to hear the eloquent speech of the noble Baroness, Lady Cass, on the evidence of the Chief Medical Officer because, when you have someone so familiar like that, it would be useful for us to know when they last did an MCA assessment. She put that very eloquently.

In relation to the comments made by the noble and learned Baroness, Lady Butler-Sloss—this is something that again arose in a previous group—on the different statutory regimes of the Mental Health Act and the Mental Capacity Act, these are not, even now, separate. I served on your Lordships’ House’s Select Committee on the Mental Health Bill, and one of the first things that we had to look at was the situation in Northern Ireland, where the choice was made to fuse these parts of the law. That was not part of the independent review by Sir Simon Wessely, but it would have been one of the options at that time, because there is an overlap between the jurisdictions.

I know that the Minister said, on the previous group, that if she is silent, that is okay, but I ask the noble and learned Lord to invite the noble and learned Baroness, Lady Butler-Sloss, to the meeting that is planned for next week with Alex Ruck Keene KC, because at the moment it is not clear that we have patients under one regime and patients under another regime. When you are detained under the Mental Health Act, one of the bases of that, when you potentially want to take your own life, is that you are under the prevention of suicide regime, with psychiatrists and clinicians there. But under this Bill, obviously, you are not, so the clinicians are asking for that clarity. I hope that we will be able to come back to your Lordships’ House after the meeting next week with that clarity. I also hope that the sponsor of the Bill could outline this.

I am surprised that we are still talking about this, because the Royal College of Psychiatrists has been raising this issue since November 2024. If we had had the amendments that could deal with its concerns, they could have truncated the debate. We had this discussion in relation to the advertising amendments. With the concerns from professional bodies, why do we not have amendments at this stage of the Bill, even though the noble and learned Lord said that amendments would be forthcoming? A year or more has gone by since these concerns were raised. I hope that he will be able to clarify why that is, at this stage. It is imperative that we see these amendments in Committee.

[Earl Howe (Con)]

My Lords, before the Minister rises to speak, I have a question for her about workability arising from one of the amendments included in this debate. In his Amendment 581A, my noble friend Lord Sandhurst posed a specific question on capacity at the moment when a person is given the substances with which they will take their own life. He is surely right that at that critical moment appropriate safeguards are needed where, for any reason at all, there is doubt about the person’s capacity—for example, where there is a history of fluctuating capacity. The doctor should clearly know how to respond to that situation. Can the Minister say whether she believes that the situation that my noble friend has described would require specific guidance to be issued by the Government over and above guidance already issued under the Mental Capacity Act?

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords for their contributions on mental capacity and eligibility. As usual, I will keep my comments limited to those amendments on which the Government have major legal, technical or operational workability concerns. Indeed, if I do not refer to an amendment, clearly that is not the case, as was just suggested.

I wish to make a point to the noble Baroness, Lady O’Loan, who asked about consideration about compliance with ECHR. It is probably helpful for me to re-establish the consideration about that. It is the role of the Government—this is what I am doing—to highlight where there is a risk of issues in respect of the ECHR. However, it is for the House to decide whether policy choices might create a risk and whether that amount of risk is acceptable or not. The other thing, if it is helpful to the noble Baroness, is that, if it is found that primary legislation is incompatible, there could of course be a declaration of that incompatibility. It would not invalidate legislation. That is probably the main point that I want to emphasise, but this is ultimately a matter for decision by the House.

Amendments 117 and 892, in the name of the noble Baroness, Lady Hollins, would remove Clause 3 and insert a new clause requiring the Secretary of State to make regulations that establish an alternative framework for assessing and determining capacity, based on a psychological assessment, rather than reliance on the Mental Capacity Act. How to make that assessment on capacity—noble Lords have referred to this—is a policy choice and is therefore a matter for Parliament. However, as drafted, Amendment 117 uses a number of undefined terms such as “validated, standardised instruments” and “evidence-based methodology”, which, without further clarification or definition, are likely to create workability concerns. Amendment 892 would mean that the majority of provisions under the Bill could not come into force until the regulations under Clause 3 were made. This would make the backstop provision in Clause 58(4) ineffective.

I turn to Amendment 108, tabled by my noble friend Lord Hunt of Kings Heath. It would introduce a departure from the MCA framework by linking a lack of capacity in one area, to consent to care and treatment arrangements that amount to a confinement, to lack of capacity around another decision, the decision to end one’s life. This could create confusion and require additional guidance and training for practitioners.

It appears that Amendment 119 in the name of the noble Baroness, Lady Grey-Thomspon, would introduce a separate specialist capacity assessment process for adults with a learning disability. This departs from the MCA framework, which requires proportionate, decision-specific assessments, rather than separate processes for particular groups. Operationally, this could create significant training and resource demands, as specialist assessors would need to be identified. The Committee may wish to note that the amendment restricts any publicly funded provider from undertaking the mental capacity assessment, which would mean that individuals with learning disabilities would have to self-fund the assessment from a private sector provider. There are also technical drafting issues, including a lack of definition for “learning disability” and other terms such as “relevant professional regulator”, which could lead to uncertainty in how the legislation is applied.

Amendments 117, 892, 108 and 119 would all involve introducing differential treatment, by treating different groups of people differently. As such, they could give rise to legal challenge on the basis of ECHR obligations, specifically Article 14, which prohibits discrimination when read with Article 8. Any differential treatment, as I said more broadly earlier, would need to be objectively and reasonably justified in order to comply with ECHR obligations.

I turn to Amendment 235 in the name of the noble Lord, Lord Moylan. The effect of this amendment is that certain groups of people would not be able to make a valid first declaration, as the noble Lord said. This could exclude people with learning disabilities, mental disorders, as per Section 1 of the Mental Health Act 1983, and autism from accessing assisted dying. An individual who may experience substantial difficulty in understanding processes or communicating their views, wishes or feelings would also be excluded under this amendment from accessing assisted dying. The definition of “mental disorder” in the Mental Health Act is extremely broad and will include those with conditions such as ADHD, dyslexia, anxiety and sleep disorders. The Committee may wish to note that these groups would be excluded, even if their condition had no impact on their ability to fully understand the relevant information.