Terminally Ill Adults (End of Life) Bill

Lord Markham Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

Finally, I will raise the palliative care framework and when that report will come out. When I met the noble and learned Lord yesterday, we talked about reassurance and whether we could agree to get this debate, which started off as 23 groups, to 20 groups. I said yesterday to him that I am not able even to think about what that grouping might look like until we have the answers to some of these questions. It is really important that there is some urgency around the palliative care framework and that report being launched, because we are not going to have reassurance about what the world is going to look like until we see that data. I would be very grateful if the Minister could answer that, and I very much look forward to the noble and learned Lord’s answers to the questions I have raised.

[Lord Markham (Con)]

Building on from that, that is correct: there are two different approaches here. There are those among us who believe that choice should come first, and within that choice there should obviously be protections and safeguards. Then there are those people who have equally very firm beliefs that the restrictions should be in place first as protections. To summarise, a lot of the amendments in this group are about having certain illnesses and certain groups, such as disabled groups, that should be excluded from the Bill, and that you should be allowed to have this only if you have unbearable pain or suffering, or if there is no chance of treatments to extend life.

I will bring two points in here. Public opinion is overwhelmingly in favour of choice, at 70% in all the different opinion polls. I include disabled groups in that: they show that 70% of disabled people are in favour of it. Then, there are the personal experiences of people who are terminally ill: first, they do not want to die. They would be delighted if there were treatments that would extend their lives beyond six months, or for much longer. But, for them, getting the opportunity to have a death of their choosing is a great comfort and insurance. It does not mean that they are going to rush out and take it as soon as they have it. In a lot of cases—about 30% in other countries—they will not use it at all.

However, the fact is, those people want it to be there, like an insurance policy, so that if, towards the end of their life, they really do have unbearable suffering, however they define it—which might be pain, a loss of dignity, a feeling that they really do not want to go on—then they can have that choice and reason for wanting to do it, whatever their choice is. That is the important thing that we are trying to ensure. Yes, there will be protections, but giving people the ability and autonomy to have the comfort and the choice of being able to die in the way they wish is the most fundamental right of all.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am grateful for the contributions on eligibility and definition of terminal illness. Once again, I will keep detailed comments limited to amendments on which the Government have major legal, technical or operational workability concerns.

First, I will give a reassurance to your Lordships’ House in response to the observations of the noble Lord, Lord Harper, and the noble Baroness, Lady Grey-Thompson, about the modern service framework on palliative care and end-of-life care. We acknowledge that there has been a drafting error, which the noble Lord and the noble Baroness picked up on. The drafting error is in the national cancer plan. I reassure your Lordships’ House that, as has been stated previously, the interim update will be published this spring and the full modern service framework will follow in the autumn. That issue was purely down to a drafting error.

I turn now to the amendments. Amendments 71, 77 and 79 were tabled by the noble Lady, Baroness Finlay, and Amendments 83A, 104 and 105 were tabled by the noble Lord, Lord Polak, my noble friend Lord Hunt of Kings Heath and the noble Baroness, Lady Grey-Thompson. Noble Lords may wish to note the Government’s workability concern with this set of amendments. Key terms and concepts in the amendments are undefined, which may introduce uncertainty when determining who is eligible under the Bill and, particularly under Amendments 71, 77 and 79, what it means to slow a disease. There is a risk that unclear eligibility criteria could result in ambiguity for those applying the legislation, which may give rise to legal challenges to decisions made under it.

Amendment 105 could also give rise to legal challenge on the basis that excluding people with particular conditions from assisted dying may not be justified under Article 2 or Article 8 of the ECHR and may amount to unjustified discrimination under Article 14. Any differential treatment would need to be objectively and reasonably justified in order to comply with ECHR obligations.

Amendments 74 and 94, tabled by the noble Lord, Lord Taylor of Holbeach, would exclude from the definition of “terminal illness” any individual whose condition can be meaningfully halted or controlled by available treatment. Clinically, it may be difficult to determine whether an illness or disease can be “meaningfully halted, or controlled” by treatment, and it is possible that an illness or disease could have a short halt before deterioration starts again. This will make it difficult for clinicians to decide whether a person is “terminally ill” and eligible for assisted dying and is likely to lead to challenges to decisions. These amendments may result in a person becoming ineligible, irrespective of whether they choose to take the available treatment.

Amendment 75, tabled by the noble Baroness, Lady Finlay, would amend the definition of “terminally ill” by removing the test of death being reasonably expected in six months, and replacing it with a requirement that the rate of progress of the disease, with treatment in line with NICE guidelines, indicates that death can be expected within six months. Introducing the concept of treatment in accordance with NICE guidelines may create difficulties, as the amendment would require clinicians to assess the patient’s prognosis as if they were treated in accordance with NICE guidelines. This may result in a person becoming ineligible, irrespective of whether they chose to have treatment in accordance with NICE guidelines. This amendment therefore requires clinicians to make a judgment on a potentially hypothetical basis.

Amendment 80, tabled by the noble Baroness, Lady Lawlor, would provide that a person is “terminally ill” where their death has an 80% likelihood of occurring within six months, according to the written opinion of two specialist, consultant-level hospital doctors. These doctors must be knowledgeable about and have experience of treating patients with the progressive illness in question. This amendment would create significant operational workability concerns. It would require the clinician making a determination about the person’s prognosis to meet a high threshold of certainty. The criteria could be especially difficult to meet for a person who has a rare progressive illness or disease, about which there may not be widespread clinical knowledge or experience.

Amendment 82, tabled by the noble Lord, Lord Polak, would require two consultants to provide a view on an individual’s life expectancy, and for them to determine that their death can be “highly probable” within six months, rather than the current drafting of, can be “reasonably expected”. Several terms are not defined in the amendment and are likely to lead to ambiguity, including operational issues, around which doctors are to assess life expectancy and to what standard.

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[Lord Deben (Con)]

My Lords, I wanted to say, as I have several times pointed out, that one reason why this Bill has taken so long is that the proponents have not been willing to make some of the changes that many of us feel would be perfectly sensible. I therefore thank the noble and learned Lord for this amendment. I think he must also agree that the debate that has followed has brought to the surface a number of issues that need to be considered, and no doubt will be when we get to Report.

However, the reason I rise is just to say to him that I find it pretty unacceptable, when I have sat through almost every moment on this Bill and have learned so much from the discussions that have taken place, for him to suggest that somehow or other we ought to do it more quickly. The fact is that this is a very badly produced Bill. It is opposed by every single organisation representing the people who have to actually do it and by every single representative of disabled people. If this House is not here to go through the details that others have raised outside, I really do wonder what the House of Lords is supposed to be. The noble and learned Lord ought to give some of us credit for the fact that, whatever we think about the Bill, we want to make it as good as it can be. That means we have to discuss it properly.

[Lord Markham (Con)]

I will make just one point. My noble friend mentioned that this was opposed by every one of the groups. Again, we took evidence from all these groups. The position is that they are neutral on it, because their memberships are split on it. The Royal College of Nursing and the Royal College of General Practitioners are neutral, so it is not right to say that they oppose it. At the same time, it is not right to say that they support it. I have heard noble Lords say a number of times that there are no groups that support it but, at the same time, you can say that there are no groups that oppose it. The fact is that they all take a neutral view because their memberships are split.

[Lord Deben (Con)]

The fact is that none of the organisations that will have to carry this through have no objections to the Bill. They have asked us to try to change the Bill so that they can do their job. That is what I was trying to say. Some have a principled opposition, but most want a better Bill. If we are going to have a better Bill, that is what we are here to do. I object to the fact that my time is being taken up with trying to help and then I am told that somehow or other it is filibustering.

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Deciding to die is not like deciding to marry or to consent to surgery, or managing finances. Death cannot be revisited. The safeguards must therefore be qualitatively stronger. These amendments do not undermine autonomy; they protect it. They recognise that autonomy without memory, continuity or liberty is fragile and easily lost. If this House is to legislate for assisted dying, it must do so with the utmost care for those least able to protect themselves. Amendments 107, 108 and 109 are proportionate, humane and necessary, and I urge the Committee to support them.

[Lord Markham (Con)]

As the noble Baroness herself said, we debated both deprivation of liberty and the Mental Capacity Act and its use extensively—I think it was on 14 November—and I believe the sponsor, the noble and learned Lord, Lord Falconer, agreed to look at extra safeguards around deprivation of liberty, being aware that there are many items we are all hoping to get through.

On the length of this debate—obviously, it will be up to noble Lords to decide how much time they want to take—we have covered these areas to a large degree, so what does the noble Baroness hope for in terms of the extensiveness of the debate this time? Does she hope that we can refer back to the previous debate and move quickly to get the response from the sponsor?

[Baroness Berger (Lab)]

I endeavoured to keep my remarks brief, and I believe I did so, taking under five minutes. The point of the amendments is very specific, around eligibility, which we had not discussed. We talked more broadly about the concerns around the Mental Capacity Act, but not specifically in the context of capacity. Obviously, we listened closely to the sponsor of the Bill’s response to the earlier debate, and the point raised in these amendments was not in any way addressed. These are additional points, beyond the principle and the wider concerns about people who are under deprivation of liberty and those who will be considered under the Mental Capacity Act. Clearly, we have listened to the experts, who have raised many concerns about the Mental Capacity Act, but the purpose of these amendments is to address eligibility.

I hope that the sponsor of the Bill will give us some more colour and detail about amendments he might come forward with on Report. But we have been in Committee since the middle of November, and in the absence of anything so far coming forward from the sponsor on the Mental Capacity Act and deprivation of liberty safeguards—I think this speaks to the concerns of many in this House—we are therefore compelled to bring forward these amendments to raise these issues. If something did come forward, that might enable us to withdraw future groups of amendments altogether, and maybe that will be the case. I look forward to the sponsor’s response.

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[Lord Markham (Con)]

If I may say—I hope, like my noble friend, in the spirit of helpfulness—this has been a thoughtful debate, and we all want the best decision-making framework for these decisions. I am definitely not going to pretend that I have personal expertise as to what the best decision-making framework is. However, on some of the earlier comments, Professor Chris Whitty is our Chief Medical Officer and, although he might not be an expert in psychiatry, he draws on the expertise of the many experts in that field. A number of psychiatrists wrote in to MPs and Lords as part of this process, saying that they felt the Mental Capacity Act was a good, tried and tested framework to be used on this basis, and that there are certain dangers in trying to introduce an as yet new and unknown framework.

There is also the possibility of confusing situations. There could be three patients: one with a do not resuscitate order, another with motor neurone disease and the question of whether their ventilator should be switched off, and a third being assessed under assisted dying. These are quite similar circumstances. If you were to have two different frameworks for assessing them then there is the possibility of quite a lot of confusion as to the best way to do that. I say this to ensure we are looking at all the pros and cons. I am not going to pretend at all to be an expert on this, but the Mental Capacity Act has been tried and tested for a number of years, and there are a number of expert psychiatrists who think it is absolutely the right framework in which to do this.

[Baroness Finlay of Llandaff (CB)]

I wonder whether the noble Lord, in reading the Mental Capacity Act and Amendment 115, has recognised that the wording in Amendment 115 is deliberately taken from the Mental Capacity Act in order not to create confusion and the difficult situation he is alluding to, which could have happened if somebody was trying to construct an assessment framework out of the blue.

[Lord Markham (Con)]

Where that clarity can exist then that clearly must be the right thing, but my understanding of the many amendments that have been tabled is that a lot of them seek to replace the Mental Capacity Act with a new decision-making process, which, inevitably, is not tried and tested and so could be confusing. I reiterate that I am not an expert in this—

[Baroness Berridge (Con)]

I would be grateful to hear from my noble friend further evidence that Professor Sir Chris Whitty has drawn on expertise from other specialties in addition to epidemiology. Could he perhaps contact him and ask who he drew on before he gave his evidence in the other place, as he then had to write a letter, I think after one of the key votes had taken place in the other place, correcting his view?

In addition, the noble Lord mentions individual psychiatrists. One can often find individuals who will say their views, but is he not also concerned, and should we not give greater weight to the fact, that the royal college has been worried about this since Second Reading in the other place?

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[Lord Markham (Con)]

A large number of psychiatrists are absolutely of the view that they do not want a new framework. They wrote to MPs saying that the Mental Capacity Act was totally relevant in all this. I am not saying that I personally know what is best. I am just trying to provide balance, because a number of noble Lords have said that we should be introducing a new framework. There are some serious arguments, including that of the Chief Medical Officer, for why that should not be the case. I cannot speak to the evidence that he has taken, but I know from working very closely with Professor Sir Chris Whitty that he is very evidence-based. I would be very confident that he has taken a lot of expert advice on this.