Terminally Ill Adults (End of Life) Bill

Lord Winston Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

[Baroness Smith of Newnham (LD)]

I am indeed, which is why I think it needs to be clearly probed. If that is what your Lordships’ House and the other place intend, we should legislate for that, but I am not persuaded that all Members of this House and the other place will have the expertise that the noble Lord, Lord Pannick, has.

I have probably taken enough interventions for the moment. Others may accept being intervened on for a fifth or sixth time.

It was clear at Second Reading that some noble Lords who are in favour of this legislation want to support it and are open to it being amended, but others simply said, “This legislation is about assisted dying. The citizens of the UK want assisted dying. Therefore, we must support this legislation”. That would be a dereliction of our duty. We need to ensure that any legislation that is passed is robust and that, if noble Lords have passed it, they have probed the Mental Capacity Act and questions of capacity and ability, and that the legislation we get is robust and will stand the test of time.

Ability goes beyond capacity. This matters so much because the simple choice between an assisted death and not an assisted death is not so straightforward. The reason I wanted to speak, and I will come back to this in subsequent groups, was to refer to some of the evidence we took. Evidence-giver after evidence-giver said, “If we are going to have assisted dying”—whether or not they were in favour—“we need to have better palliative care than we have at the moment”.

The Bill, if it goes through, will say that people have to be told their choice between the palliative care available to them and other options. There is a gross inequity in palliative care availability in this country. For some people, there might be a genuine choice between getting the care they could have or an assisted death, and they may get to the point of saying, “The care still is not enough”. In many parts of the country, though, people are not being offered that palliative care, and if we do not make it available, we are potentially creating legislation that causes people not to have the choice that some noble Lords are so passionately advocating for but rather to make constrained choices because the health service is not giving them what they need. So a broader discussion about ability has merits. That is not to cut across the debate about the need for capacity, which will come up at various points in Committee.

[Lord Winston (Lab)]

My Lords, as a member of the Select Committee that the noble Baroness has just referred to, I think she ought to refrain from criticising something that the committee either said or thought. We merely took evidence. As we will see in the report, we did not make those observations personally.

[Baroness Browning (Con)]

My Lords, many years ago, in another place, I served on the pre-legislative scrutiny committee and was present taking what became the Mental Capacity Act through the House of Commons. When I came to your Lordships’ House in 2010, I was fortunate enough to secure a House of Lords inquiry to look post-legislatively at how the Mental Capacity Act was working. From the evidence we took at the time, we found that the ability of the medical profession—by which I mean not just doctors but all those across the piece, including social care workers—was not as ideal as it perhaps sounds in today’s Committee. Whatever is built into the Bill to assess either capacity or ability, there will need to be a heck of a lot of training for us all to feel comfortable that the professionals involved know how to go about their task.

I draw the Committee’s attention to the report last month of the National Audit Office, whose press release stated:

“The Department for Health and Social Care (DHSC) and NHS England (NHSE) do not clearly understand what proportion of palliative and end-of-life care is delivered by independent adult hospices, and therefore, how much they are reliant on the sector, or what the real impact of government funding is”.


We have heard that palliative care is patchy. I know from my own recent experience with a close relative that, had I not been somebody capable of organising it myself, it would not have taken place. We are not dealing with finite disciplines in the debate on this group, and I caution the Committee that it is not as perfect out there as it sounds today.

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[Lord Harper (Con)]

My Lords, I have listened carefully to the debate. The noble Baroness, Lady Finlay, has done the Committee a service in tabling this amendment. It has enabled us to think in advance of the debate that we will have when we get to Clause 3 on the existing wording in the Bill about the Mental Capacity Act. Some of those issues came out in the debate that we have just had. It has been helpful to cue that up.

I want to comment on a couple of issues following on from the comments made by the noble Lord, Lord Deben. Two different things are being talked about with capacity and ability. I listened carefully to the comments of the noble Lords, Lord Pannick and Lord Scriven. There is a clear mental capacity test. But as others have said—I will not repeat the quote—experts in assessing capacity from the Royal College of Psychiatrists think that this decision was not thought about when the test was designed and that it is not an adequate test. I will not labour the point now, but we should think about whether we need a new test or, as the noble Lord, Lord Deben, said, an additive process where we take the Mental Capacity Act test and add something to it. There are amendments on both of those—a new test or adding things to it.

That comes to the point that the noble Lord, Lord Scriven, made. Of course, it is true that people make life and death decisions about medical treatment and about whether to refuse medical treatment. But there is a qualitative difference between refusing medical treatment, even if the consequence of refusing that medical treatment will be to hasten the end of your life, and to make a decision for active steps to be taken to administer substances to you which will end your life. They are very different things, and they are treated differently in the law. Perhaps that is the reason why we have had that slight cross-purpose. We need to be very precise about our language when we come to have that debate on capacity. I think that that would be helpful. That is all I will say about that at this point. I suspect that we will have a very extensive debate on Clause 3.

I think that the noble Baroness, Lady Finlay, was getting at something a little wider, which was not just about the capability of the individual to make a decision—that is the capacity piece. It was also about both the information they are furnished with and whether they have all the information at their disposal to be able to exercise their capacity to make a decision. It is not just about whether the information is available but whether the services are available that make that a truly proper, informed decision. Clearly, she has enormous expertise in palliative care.

Whether that palliative care is available in practice is incredibly important. Somebody could have capacity, and we could judge that they do. I listened very carefully to what the noble Baroness, Lady Andrews, said, with her expertise on the Mental Capacity Act, and I listened carefully to my noble friend Lady Browning about the importance of recognising how it works in practice, but it is also about whether those services are available. You could have the capacity and a lot of information provided to you, but if the palliative care services are not available to you, you do not have the ability to make a meaningful choice about whether you wish to end your life. I think that is what the noble Baroness, Lady Finlay, was getting at in that wider use of the word “ability” on top of capacity.

When we get to Clause 3 and the amendments to it, one of the things we should think about is whether we accept that the Mental Capacity Act is a good basis. As people on both sides of the argument have said, it is a tried and tested situation. As we heard earlier, it has been tested in court, up to and including the Supreme Court. We should think about whether we want to replace that with a completely new test or whether we actually stick with the Mental Capacity Act and perhaps have some additions to it, which recognise that it is a qualitatively different decision from whether you are having medical treatment or not. That is the essence of it.

In the place it is in the Bill, just accepting the word “ability” probably is not the right thing to do. We want that wider debate. But the noble Baroness, Lady Finlay, has done us a service in flagging up some of the issues that we can now think about in advance of the debate on Clause 3.

[Lord Winston (Lab)]

Before the noble Lord sits down, perhaps he could just clarify a point. Medical royal colleges are often quoted as having a view, but they are very seldom unanimous. I wonder whether he could tell us not just the percentage of psychiatrists but how many psychiatrists who are members of the royal college specifically had this view and how may did not. That is really important. There were a number of people who just did not respond to a question.

[Lord Harper (Con)]

I am happy to answer. I do not know how many did. My understanding is that the royal college, whatever its decision-making processes are, has publicly said that it does not think this is adequate. As I said, I did not quote it, because it had been quoted at length. I put some weight on that.

As a relatively new Member of your Lordships’ House, I am also very struck that this House is blessed with those who have enormous experience in the law, who have to make some of these decisions in practice, and experienced legislators, such as myself, who have looked carefully at the operation of the legislation, both in taking it and post-legislative scrutiny. Many Members have personal experience, either themselves or through family members, of the exercise of these laws in practice. I will listen very carefully to them.

Therefore, the view of the Royal College of Psychiatrists is clearly an important one that I will put some weight on, but I will also listen very carefully to others in the House, who I think will add enormously to this debate as we weigh up this important piece of legislation. I thank the noble Lord for his question.

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[Baroness Scotland of Asthal (Lab)]

If we look at what Professor Foster and others have said, they say that the Mental Health Act 1983 is the sort of assessment that a psychiatrist should make as to whether they are in a position to make that decision. It is not just the MCA on its own—

[Lord Winston (Lab)]

My Lords—

[Baroness Scotland of Asthal (Lab)]

If I could just be allowed to finish, I would be most grateful, because I have taken only three minutes and 48 seconds, and I do not intend to trouble the Committee for very much longer.

This issue has to be looked at. We have to be serious about looking at the Mental Health Act 1983, looking at the Act on capacity and coming up with something that suits. This is too serious for us not to do it. All of us care deeply about those who suffer, care deeply about those who face a diagnosis about the end of their lives, and we have to get this right. So, I ask the Committee to be kind to each other, to listen, to understand that the pain that is suffered on all sides is real and that we are entrusted to do something quite extraordinary once in a generation and we cannot fail. And I know that the people in this Committee will not fail, because we will take our job seriously.

[Lord Winston (Lab)]

Before my noble and learned friend sits down, will she just recall some evidence that we took in the committee that we sat on together only a week or two ago? My noble and learned friend was very keen to have evidence from New Zealand, where they had a three-year follow-up which showed that three-quarters of the patients who had asked for assisted dying had already been on palliative care. The two things are not exclusive by any means, and it is certainly relevant to consider that. Palliative care, of course, was okay, but some patients finally decided that they did not want it any more—most of them, in fact. It was 2,880 patients.

[Baroness Scotland of Asthal (Lab)]

We were very grateful to receive evidence from New Zealand, and we heard from a practitioner about the challenges and the opportunities that there are. But we also heard that New Zealand had moved from being the third most successful in delivering palliative care to the 12th, and there was a direct correlation, we were told, between the reduction in the investment in palliative care and the existence of the new service. These are the realities, and there are many who have said that if there is to be a real choice—if I can just finish this sentence, I would be grateful—then the choice has to include a fully funded palliative care service to enable people to choose whether that is the course they want to go down, or another. Without that, the choice is not a real one.

Terminally Ill Adults (End of Life) Bill

Lord Winston Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

[Baroness Hollins (CB)]

I thank the noble Baroness. I thought about that, and it could indeed be brought back in a different way later in the debate, but I feel that the prevention of coercion is really important, so thinking about it at this stage is really helpful.

[Lord Winston (Lab)]

My Lords, I want to ask this question of the noble Baroness, Lady Hollins, but it applies also to the noble Baroness, Lady Berridge: she mentioned various things that are cited as causing pressure, but does she not agree that being in palliative care also causes pressure?

[Baroness Hollins (CB)]

There is no suggestion in anything that I have said of imposing palliative care—none at all. I have listened to the debate, and I was not going to speak personally but I will now, since the noble Lord has challenged me on that. My husband was dying with motor neurone disease last year. He felt under immense pressure from this debate in the House of Commons, the other place. He found it very difficult. It made him ask questions, such as, “Am I still entitled to palliative care? Am I really entitled at a time when the NHS is so short of staff and short of time?” He worried about that, and I had to offer him a lot of reassurance so that he could make his own decision. He was not ready to die. The idea that offering palliative care applies pressure is really not to understand the whole nature of the dying process and the way in which, as we come to realise that our life is coming to an end, we need time to understand, reflect, heal and make sense. The pressure not to be a burden is huge, and the pressure of not having access to services that are in short supply is much worse.

[Lord Winston (Lab)]

I do not wish to extend this conversation but, given what the noble Baroness has said, can she explain why in Australia—I am sorry, in New Zealand—where there is very good palliative care, three-quarters of the people requesting assisted dying, something like 2,000 patients, had been in palliative care at the time of the request?

Terminally Ill Adults (End of Life) Bill

Lord Winston Excerpts

Committee stage
Friday 5th December 2025 Lords Chamber

[Lord Winston (Lab)]

My Lords, I suggest that the noble Baroness, meaning absolutely well in a clearly very emotional area, has forgotten the real science. She is not a neuroscientist; indeed, I do not think that the commissioner is a neuroscientist. The greatest expert in the United Kingdom on teenage neuroscience is almost unquestionably Sarah-Jayne Blakemore, who works partly in London, partly in Cambridge and of course has been working extensively at UCL for a long time. She has studied teenagers in great detail, and it is very clear from her work on teenagers making decisions that they can make decisions in the right environment and in the right circumstances. I think one has to be very, very careful about making assertions about teenagers. There are many people well over the age of 25 who cannot make these decisions either. I think we have to be quite clear that we may need to take this sort of thing into consideration, but I do not think it is necessarily relevant to this amendment.

[Baroness Stroud (Con)]

My Lords, I want to speak in support of the noble Baroness, Lady Berger. I will limit my remarks because some of them have already been made by previous speakers. I think the reality is that maturity is a scale and choosing to proceed with assisted dying at the age of 18 poses difficult questions, which we must grapple with, about the neurological maturity required for true, settled and informed consent on a matter of such gravity, and not just particular circumstances. I intend to speak in a subsequent group to Amendment 22 in the name of the noble Baroness, Lady Grey-Thompson, but some of the points I will make then are also relevant to this group.

I note that research undertaken by the Sentencing Council in 2024, which focused on aggravating and mitigating factors in sentencing guidelines, has this to say about age and maturity:

“Age and/or lack of maturity can affect … the offender’s responsibility for the offence and … the effect of the sentence on the offender. Either or both of these considerations may justify a reduction in the sentence”.


The report goes on to note:

“In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to: … evaluate the consequences of their actions … limit impulsivity … limit risk-taking … Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers”.


I do not want to cross over into debate on the subsequent group, but this seems highly relevant to our deliberations on the appropriate age for assisted dying. Of course, age and maturity are mitigating factors only, and therefore discretionary, but it seems extraordinary to me that the principle of maturity is one which is accepted in a legal context, and there remain calls for dedicated sentencing guidelines for 18 to 25 year-olds in recognition of this, yet the Bill as drafted does not seem adequately to account for this in a similar manner with regard to the permanent decision to end one’s own life. I would be grateful if the noble and learned Lord, Lord Falconer, could comment on this when he responds to the debate.

The autonomy on which the Bill is purportedly built must be grounded in safeguards commensurate with the irreversible nature of the proposed act. With regards to the age of eligibility, I do not believe the Bill as drafted meets this standard. For these reasons and more, I support the amendments in the names of the noble Baronesses, Lady Berger and Lady Lawlor, as well as those in the name of the noble Baroness, Lady Goudie, and the noble Lord, Lord Moylan.

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[Baroness Finlay of Llandaff (CB)]

The issue with the Mental Capacity Act is that each assessment must be done individually. It relates to the decision that is to be made, the size of the decision, the time and the personal characteristics. There is no absolute. If we are talking about safety in relation to the Bill and avoiding abuse, I am simply trying to suggest that one way forward may be to ensure that the assessment of young people’s eligibility is particularly thorough. That may mean having different criteria and looking at whether they have pain or suffering.

[Lord Winston (Lab)]

I wonder whether the noble Baroness might be kind enough to clarify. She is, after all, a hugely respected individual in the field, of which she is such an expert—I do not doubt that for a moment. Sarah-Jayne Blakemore, a fellow of the Royal Society, has been spending her time looking at peer pressure. That is what her publications have largely been about. Is the noble Baroness really suggesting that a young person of, say, 18, dying of a horrible and painful cancer, would be subject to peer pressure? They might be subject to pressure from doctors but I doubt that they would be subject to peer pressure.

[Baroness Finlay of Llandaff (CB)]

I was simply relating what I found when I was in the Netherlands relating to peer pressure on young people because of the normalisation of euthanasia across that society.