Terminally Ill Adults (End of Life) Bill

Baroness Berger Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I wonder if I might briefly apologise to the Committee. I was reading a quote—they were not my words. The quote was about a young woman who was said to have committed suicide. If we are going to be respectful of everyone, we must drop the word “commit”. It is not a crime to end your own life. I know that, for the relatives of those who have taken their own lives by suicide, the term “commit” can be deeply offensive. But as many people in this Committee will know, when you have experienced the suicide of someone very close to you, it lives on, in the way that a death also lives on in the person left behind. But I apologise, because it was a quote I was reading, and I think we should return to the topic of the amendments before us, if we may.

[Baroness Berger (Lab)]

My Lords, I am going to do as the noble Baroness, Lady Finlay, has requested and carry on with the group of amendments before us. To echo the sentiment just expressed about the language we use in this place—and it does matter—there are Members on all sides who have used the term “commit suicide”. Suicide is no longer a crime or a sin and, on that basis, for people affected by suicide and those left behind, it is a good reminder that we should all endeavour wherever possible, as the media tries to do outside this place, not to use that terminology.

In reference to one of the points just made by the noble Baroness, Lady Gerada, we will come back to these issues in some later amendments. Complicated grief can arise from an assisted death, and I shall propose some amendments to address that and to think about the people who are left behind. We certainly have evidence of that in other jurisdictions. We also know that adverse complications can arise from the drugs people ingest through an assisted death, which can have far-reaching consequences for the people left behind. We will debate that later.

As a signatory to Amendment 87A, I welcome the fact that these important changes will be accepted, along with Amendment 87. However, I want to add some additional information. It is important to acknowledge that these amendments do not address all the gaps connected to eating disorders. There is no protection for people whose eating disorders may bring them within scope of the Bill’s definition of terminal illness in other ways. That includes refusing treatment rather than food, which is addressed in Amendment 92, which I do not believe the sponsor would accept at the moment, or a person with bulimia sustaining damage to their organs through vomiting.

Why does this matter? We have talked about anorexia, which is a fatal disease and one of the mental health conditions that leads to the greatest loss of life through mental illness. However, it represents only a minority of eating disorder cases in the UK. A large population study published in 2017 found that anorexia accounted for just 8% of eating disorder cases. We know that bulimia is far more common, but it can also be fatal, with well-established risks including sudden cardiac death, severe electrolyte disturbance and rupture of the oesophagus. The amendment rightly focuses on anorexia but, as someone who is a signatory to Amendment 87A, I acknowledge that we must do everything to provide protection to all people with eating disorders in this country, including bulimia.

[Baroness Parminter (LD)]

My Lords, I rise to speak to Amendment 101, which I drafted to try to close the dangerous loophole in the Bill whereby people with eating disorders could qualify for an assisted death, contrary to the intent of the sponsors to limit the Bill to people with a terminal life-limiting illness. That there is a raft of amendments on this matter shows that the Committee recognises that that loophole exists, which is welcome; indeed, I welcome all the amendments in this group.

My focus has consistently been on the deadliest of all eating disorders—that of anorexia, as was so well articulated by the noble Baroness, Lady Hollins. My particular worry with the Bill as it stands is that, if treatment is delayed, withheld or withdrawn, the physical health of people with a mental illness could deteriorate to a life-threatening degree. They would therefore then be subject to the provisions of the Bill.

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[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.

[Baroness Berger (Lab)]

I just want to clarify that many of these organisations—including five royal colleges, the British Association of Social Workers and all the organisations for and on behalf of disabled people—are neutral on the principle of assisted death, but no external organisation will attest to the safety of the legislation we are discussing today and on previous days. I think that should be of concern to us all.

[Baroness Royall of Blaisdon (Lab)]

My Lords, many points have been made around the Chamber about disability. The most recent large survey, carried out by Opinium in February 2024 of nearly 11,000 respondents in the UK, showed that 75% of the general population were supportive of the Bill and 14% opposed it. Of those who had a disability, 78% were supportive and 14% were opposed. It is very important to put those figures on the record.

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Moved by

[Baroness Berger]

107: Clause 3, page 2, line 21, at end insert “, save that section 3(3) of the Mental Capacity Act 2005 (inability to make decisions) shall not apply to assessments of capacity under this Act.”
Member's explanatory statement
As the Bill includes two extended periods for reflection, this amendment would disapply section 3(3) of the Mental Capacity Act 2005, which provides that the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent them from being regarded as able to make the decision.

[Baroness Berger (Lab)]

My Lords, I support of Amendments 107, 108 and 109, in the names of my noble friends Lord Hunt of Kings Heath and Lord Rook, who are unable to be with us today for good reasons. These amendments go to the heart of a question the Committee must answer honestly: what level of capacity is required for the state to assist a person to end their life, and, crucially, is the existing framework of the Mental Capacity Act 2005 sufficient for a decision that is irreversible, permanent and final?

Amendment 107 addresses a specific but serious problem. Section 3(3) of the Mental Capacity Act provides that a person may be regarded as having capacity even if they can retain relevant information only for a short period. That may be entirely appropriate for many decisions in everyday life, and even for some serious decisions. However, this Bill requires something very different. It requires a person to form, retain, reflect upon and reaffirm a decision to die over an extended period—potentially weeks or months. If someone cannot retain the relevant information beyond a short period, they cannot meaningfully engage with the reflection periods that are built into the Bill. This amendment would therefore disapply Section 3(3) of the Mental Capacity Act for the purposes of assisted dying alone, recognising that the bar for deciding to die must be higher than for any other decision.

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[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.

[Lord Falconer of Thoroton (Lab)]

It may assist in the light of that exchange if I indicate what my position is. We had a debate some weeks ago about the question of people who had had their liberty deprived within the preceding 12 months. That would obviously include those who were still the subject of a DoL order or a DoL application, and the noble Baroness’s amendment refers to a number of other categories as well, which are similar and which I think would be included. I indicated explicitly in the debate that I think it would be appropriate for me to bring forward explicit extra protections in relation to those people, and in particular, those extra protections might include a specific compulsory further psychiatric examination for that purpose. I have been in discussions with various people in the House in relation to that, and I am seeking advice from officials and others so that I will be able to bring forward proposals on Report. I hope that very much helps my noble friend Lady Berger.

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[Lord Falconer of Thoroton (Lab)]

If that is a reference to whether there should be the affirmative rather than the negative procedure, may I take it away? That seems a reasonable request. May I get back to the Committee on that?

[Baroness Berger (Lab)]

My Lords, we have debated for just over two hours and some very significant issues have been raised. It is worth outlining briefly why this group matters, particularly in the context of what is happening beyond this place and considerations and representations being made in the media.

It was last week that Esther Rantzen told us that the Bill

“only applies to terminally ill people like me”.

The campaigners we hear from reassure us that it would obviously be something that they “freely choose and have fought for”. There are noble Lords who said at Second Reading in this place:

“I want that choice for myself”.—[Official Report, 12/9/25; col. 1786.]


It centres those who have no doubts about their capacity to make this decision and no doubt that they would freely choose, but it removes from the room people who are not like us. It is our job to balance the needs of those with true agency, for whom this will be a free choice, with those who may be pressured or led towards this path, in particular because of the inadequacies of the Mental Capacity Act.

It is clear that there remains significant concern about the relationship between the existing test in the Mental Capacity Act, brought forward in 2005, and the decision to have an assisted death under the Bill. At the risk of stating the obvious, a decision to have an assisted death was not in contemplation for the architects of that Act back in 2005, so it is not surprising that we have heard such a range of questions and concerns, both from noble Lords and from experts outside this Committee, including the Royal College of Psychiatrists.

I listened closely to my noble and learned friend’s remarks to the noble Baroness, Lady Finlay. It may be helpful for noble Lords to be aware that, back in the other place, the desire to use the Mental Capacity Act was largely pragmatic as it is what doctors are used to, not because it is the best framework for this decision. I reflect on the comments from the Health Minister, Stephen Kinnock, who said in the Commons that it is “a known quantity” and a well-established piece of legislation. He went on to say that doing things differently would cause “operational challenges and confusion”, and that a different approach would add complexity. This bunch of amendments has pragmatic, specific proposals for adjustments to address what we are trying to do within the constraints of the legislation. Perhaps this would have all been ironed out if we had gone through some proper pre-legislative scrutiny, as we would have done had this been a government Bill.

In particular, I acknowledge the expertise of the noble Baronesses, Lady Hollins, Lady Cass and Lady Finlay, in this debate. The debate has raised some serious questions about what these specific provisions of the Mental Capacity Act mean for the weakest and most vulnerable: the endorsement of unwise decisions; presumption of capacity; brief retention of information, and whether that is sufficient; a duty to support decision-making, which risks becoming a duty to facilitate a decision to die; and relying on time-specific capacity.

I have in front of me so many different important points raised by noble Lords from across the Committee. In the time we have available, I am not going to mention all of them, so I hope noble Lords will forgive me for that, but it is worth reflecting on just a handful. The noble and learned Baroness, Lady Butler-Sloss, raised the very important concerns about people with variable dementia and people who are sectioned. The right reverend Prelate highlighted the biases experienced by people with learning disabilities and the discrimination they face. The noble Baroness, Lady Finlay, talked about the need for clarity for doctors and how we can at least endeavour to make the Mental Capacity Act fit for purpose in the Bill. The noble Baroness, Lady Cass, reminded us all that assisted death is not a medical treatment. I again reflect on the important representations from the noble Baroness, Lady Grey-Thompson, on the concerns raised by the disabled community and the particular challenges not addressed in the Bill.

Given that my noble and learned friend Lord Falconer indicated in his response that he will defend the Mental Capacity Act as the foundation for the Bill, it is disappointing that he has dismissed the specific provisions that could be set aside and could make a difference. I welcome his earlier intervention, when he said that he would bring forward amendments that would introduce additional assessment in particular cases, but that question is different from the one being asked today, about how we can be confident that the test itself is the right one.

I was particularly concerned by my noble and learned friend’s response to the question from the noble Baroness, Lady Grey-Thompson, about whether a disabled person would be safe. He said that no one would be overpressed into making a decision to end their life. I think that, for many of us here, it is not about being overpressed: we do not want anyone to feel pressed at all. I hope that he will further consider that question, including how experts, who still have so many doubts, can be consulted in more detail.

Given that we first started talking about these issues in this place before Christmas, and in order to expedite our deliberations, I hope that we will not have to wait until Report and that the amendments he mentioned will be brought forward as soon as possible. We understand that he has a wealth of civil servants and legal experts at his disposal; perhaps they can help him to act even quicker. My noble and learned friend has outlined that he is not prepared to accept any of the amendments proposed in this group, but we would like to see what he intends to propose as an alternative. I know that everyone is concerned that we should expedite our deliberations, in the light of the later groups, and that would help us all enormously.

[Lord Falconer of Thoroton (Lab)]

I said “overpressed”, but I did not mean that; I meant to say pressed. I apologise for saying “overpressed”.

[Baroness Berger (Lab)]

With that, I beg leave to withdraw my amendment.

Amendment 107 withdrawn.