Terminally Ill Adults (End of Life) Bill

Baroness Coffey Excerpts

Friday 13th March 2026 Lords Chamber

Amendment 921ZA, also in the name of the noble Baroness, Lady Coffey, would require that a legal panel member could be a person who holds or has held judicial office in England, but the explanatory statement accompanying the amendment notes that the intention is to clarify that the legal panel member could be a person who holds or has held judicial office in both England and Wales. It is therefore unclear to the Government what the amendment is trying to achieve. If it is trying to restrict legal panel members to current or past judicial officeholders in England, that is not possible, given that judges of the senior courts are appointed in the unified jurisdiction of England and Wales.

[Baroness Coffey (Con)]

The Minister will know that I will discuss later why I do not think that the legislation should apply to Wales, and that the Welsh Senedd should make the decision. I tabled the amendment because, at the moment, the judge does not have to be a judge from this country. As far as I can tell from the Bill, it could be a judge from anywhere in the world who has served under the common-law process.

[Baroness Levitt (Lab)]

I am sure that the House will welcome that clarification from the noble Baroness, but it may be that there is a drafting issue, because the amendment refers to England rather than England and Wales, and there is no such creature as a member of the senior judiciary from England only.

Finally in this group, the Government have concerns that Amendment 929B, also in the name of the noble Baroness, may have an impact on the operability of an assisted dying service by placing apparently arbitrary limits on the resourcing of the panel when the demands of that service are, as yet, unknown.

I turn now to groups of amendments dealing with assisted dying review panel proceedings and powers. Amendment 463, in the name of the noble Lord, Lord Murray, would require the commissioner to assess the procedure adopted by every individual assisted dying review panel. That would remove any flexibility for the panel to deviate from procedure, should it seem appropriate to do so for either inquisitive or compassionate reasons associated with the case.

Amendment 464, also in the name of the noble Lord, Lord Murray, would give the panel the same powers, privileges and authority as the High Court. The powers of a High Court judge are significant and wide-ranging. They are set out across statute, court rules and the inherent jurisdiction of the court. The Government think that some of them, such as the power to imprison for contempt, are not the sorts of powers that your Lordships may feel are appropriate for such a panel. Without more clarity and detail, it is impossible to assess whether this kind of extension would be appropriate, and it would be extremely difficult to apply in practice. In the view of the Government, the amendment ought to set out which powers, privileges and authorities it is intended to capture.

Regarding Amendments 495B and 941A, both in the name of the noble Baroness, Lady Maclean of Redditch, your Lordships may wish to note that requiring the panel to identify and provide a report on unmet social or palliative care needs is not within its remit, nor would the panel necessarily have the knowledge of local service provision or the expertise to make personalised recommendations on social and palliative care. Such a report therefore risks containing inaccurate or incomplete advice.

I turn to panel referrals and capacity. Amendment 445, also in the name of the noble Baroness, Lady Maclean of Redditch, seeks to ensure that the panel is independently satisfied that the person seeking assistance has continuously had capacity from the point of their first declaration. Your Lordships may wish to note that the amendment is likely to cause major workability concerns. It would be extremely difficult for the panel to determine whether the person had capacity throughout this period, rather than just at the point at which the capacity assessment is made. Moreover, it might result in people being excluded because of temporary, brief periods of incapacity. For example, a person would not have had continuous capacity if they had had an operation under general anaesthetic during this period.

On panel decisions, Amendment 496, in the name of the noble Baroness, Lady Grey-Thompson, would mean that a person cannot apply for their case to be reconsidered on the basis that the decision was irrational. That would be unusual, as the elements of the existing test under Clause 18 reflect the three primary grounds applicable in judicial review proceedings and are part of a recognised set of legal principles applicable to decision-making. If a person wished to challenge a first panel’s decision for being irrational, which is a term of art in legal proceedings, they would still be able to do so via judicial review. That would create an inconsistency in forum that would need to be justified.

Amendment 496A, in the name of the noble Lord, Lord Weir, would add failure adequately to consider evidence relating to disability-related vulnerabilities to the grounds under which, where a panel declines to grant a certificate of eligibility, the commissioner could refer a person’s case to a second panel. Your Lordships may wish to note that failure properly to consider relevant information would already be captured by the irrationality ground for reconsideration set down in Clause 18(2)(b). Similarly, a decision that was inconsistent with equality legislation already engages the first ground of challenge in Clause 18(2)(a), because it would contain an error of law.

I have taken rather longer over this than I had intended. Noble Lords will be delighted to know that I am nearly there. The final part is on drafting considerations and Amendment 490. If your Lordships support any of these amendments, the Government may need to revisit the drafting to ensure clarity and coherence with the statute book. To give one example, Amendment 490, in the name of the noble Baroness, Lady Grey-Thompson, contains some ambiguous terms that might need tightening up. In the interests of time, I will not go into more detail, but I am happy to discuss further with the noble Baroness in due course. Having taken rather longer than I had hoped, that is it from the Government on this group.

[Baroness Coffey (Con)]

Actually, I have further questions of clarity from the Government’s response. In the amendment that I tabled about His Majesty’s Counsel, the Minister mentioned workability concerns about there not being enough people. I would like to understand whether the government proposal suggested that amendment to the Bill’s sponsor. Do the Government have any consideration about alternatives I proposed during debate, where, instead of King’s Counsel, we could have people such as deputy court judges or other sorts of judges? In the two weeks since we last discussed this matter, have the Government considered that?

[Baroness Levitt (Lab)]

As a general point, the Government merely point out workability concerns and do not suggest ways in which they might be remedied. That would be a matter for the Member who tabled the amendment to discuss with the sponsor of the Bill. So no, we have not come up with any proposals because—I am sure that the noble Baroness is sick of me saying this—we are neutral on this. We just point out where we can see difficulties with the amendment as drafted.

[Baroness Coffey (Con)]

Did the Government propose, on workability grounds, the suggestion in Schedule 2 that King’s Counsel should be included? It may be that the noble and learned Lord, Lord Falconer, can answer that, but a constant theme has been trying to understand what the Government have suggested in their private workings with the sponsor of the Bill, which they will not share with the House. Did they suggest this as a way to make it workable? That is what I am trying to get to the bottom of.

[Baroness Levitt (Lab)]

I am going to have to write to the noble Baroness about this, because I do not think I can answer it. My noble friend the sponsor will deal with the question of panels. If this question is actually about the assistance given by the Government, I refer to my previous answers, but I will write to the noble Baroness on her specific point.

--- Later in debate ---

Amendment 483C, another amendment tabled by the noble Baroness, Lady Coffey, proposes that where the co-ordinating doctor is ill and the panel is satisfied with his evidence, it should be able to deal with deal with it without hearing from him—I did not put that clearly. Currently the position is that if the co-ordinating doctor is ill—that is, there is a medical reason why he cannot appear—it is open to the panel to decide exceptionally that it does not need to hear from him because it must normally hear from him. In my view, there should be that exception because there will be occasions when the panel is completely satisfied with, for example, a report from the co-ordinating doctor that is corroborated by an independent doctor from whom they have heard. If the panel is completely satisfied, should the patient have to wait until there can be a personal hearing with the co-ordinating doctor? In my view, no. I am not in favour of that amendment.

[Baroness Coffey (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Can I just finish so that questions can be asked at the end? The noble Baroness, Lady Coffey, tabled Amendment 921ZB about King’s Counsel. The choice of who should be within the legal grouping is for the sponsors, not the Government. My noble friend Lady Levitt is right when she says that it is a question for me, not the Government. The Government are not saying that it is unworkable. They are saying that it is for the sponsor to decide. The choice of King’s Counsel and specified judges or former judges is to provide a wide enough pool from which to draw legal advisers.

As far as King’s Counsel are concerned, we think that by becoming King’s Counsel they have proved that they have sufficient quality to be the chair of such a panel. It is intended to mean King’s Counsel from England and Wales. I do not think it allows for people from other jurisdictions, but I will check, and if it does allow for other jurisdictions, I will restrict it to England and Wales because that is the intention.

In her Amendment 932A the noble Baroness, Lady Coffey, suggests that it should not necessarily be the lawyer who chairs the panel. The reason why the lawyer is put in the driving seat as the chair is because the panel has to comply with the duties imposed on it by the statute. Lawyers are certainly not necessarily the best chairs, but putting a lawyer in the chair will make sure that the panel focuses on its legal requirements. Those are my limited comments on the whole thing. The noble Baroness, Lady Coffey, had a question for me.

[Baroness Coffey (Con)]

One of my questions has been answered by the noble and learned Lord in his comments, but I want to briefly go back to Amendment 483C. The amendment is about pre-recorded audio or video material for the purposes of subsection (4). The noble and learned Lord has said that if a co-ordinating doctor is off ill, there are other provisions through medical exceptions. There is also provision in the Bill for the co-ordinating doctor to delegate any of their functions, but I am going back to the concept. For someone who is near the end of their life, why is it that any other doctor, witness or proxy should be allowed to have pre-recorded audio or video material? I want to get an understanding of that.

Separately, I think there was a slip of the tongue earlier by the noble and learned Lord. He said that the default was that the panel would be expected to sit in private but that there was then allowability for it to sit in public. I know he did not mean that, and he later said that the default was to sit in public. I want to clarify something about Amendment 933A. My amendment suggests that the only bit in private should be the interaction with the applicant. Could he explain why, if somebody has requested for that to be in private, all the other interaction should not continue to be in public?

[Lord Falconer of Thoroton (Lab)]

On the noble Baroness’s first question, Clause 17(5) says that:

“Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4).”


Subsection (4) relates to all of the material that the panel is dealing with. Subsection (5) is saying that the panel can use pre-recorded audio material if it thinks it is appropriate. I think it should be given that direction—I cannot see any reason why the panel should be restricted in relation to that.

Turning to the privacy point, paragraph 6 of Schedule 2 says that:

“Panels are to determine referrals in public”—


so the default is that it is in public, not private—but that

“this is subject to sub-paragraph (2)”,

which says that a panel can sit in private if that is what the person wants. The question from the noble Baroness was, basically, why should everything then be in private. It is because everything is about the patient. The whole thing is about the patient. If I want the circumstances of my illness and why I want an assisted death to be private, I should have that option. It is unrealistic to say that we can chop this up into the bits that are about the patient and the bits that are not.

--- Later in debate ---

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I thank my noble friends Lord Jackson and Lady Monckton—whose speech was quite spectacular—for raising the example of DNRs. It is very good example when we are talking about who can raise assisted dying in preliminary discussions.

I want to give a very brief illustration. When my father was in hospital, five different medical professionals came into his room and took us, his family, aside, to get him signed up to a DNR. He did not really want that. It might have philosophically been the right medical thing to do, but he was not in the right place. He did not want to be asked, and certainly not five times by five different medical professionals. It left a rather bitter taste in our mouths, because when we were able quietly, as a family, to have that discussion with him, he did have a DNR. We were fortunate to have that time, rather than him having something put at the end of his bed with the Sainsbury’s bag.

This group of amendments is really important. They are all similar, saying that we need some guidance on who can raise the discussion and under what circumstances. If we really believe that patient autonomy is important, then something should come from this group of amendments and be in the Bill.

[Baroness Coffey (Con)]

My Lords, briefly, Clause 6 standing part has been opposed by my noble friend Lord Moylan because of other aspects of amendments he has tabled. I very much support Clause 6 staying in the Bill: it was the one amendment on Report in the Commons where there was a significant majority in favour. In particular, I found it astonishing that anyone could even consider raising this with a child: it disappointed me that the sponsor of the Bill in the Commons voted against that amendment, but I am relieved it got through. It is also worth pointing out to the Committee that there is slightly different wording between Clause 6 and Clause 5(1), which my noble friend Lord Moylan’s Amendment 152 addresses by making sure “other health professional” is included, not just “medical practitioner”.

I have also seen multiple times what my noble friend Lady Fraser has just referred to. It is very irritating, especially when somebody is being taken home to die, if, against their wishes, DNR had been put in place by medical practitioners and then had to be rescinded. It is somewhat frustrating in that regard.

My noble friend Lord Goodman was succinct; I think that is partly the training of a journalist, or it might have been two years of quiet contemplation when he considered his vocation in an abbey on the Isle of Wight.

I want to briefly raise one point: the noble Baroness, Lady Blackstone, referred to the BMA. I am conscious that it is a trade union for doctors and does a lot of work on their behalf, but it is not a clinical body. However, the BMA pointed out its concerns that, without it, there would be uncertainty and legal risks for doctors. The BMA went into more detail on that in its evidence. In contrast, the Medical Defence Union’s written evidence to the Commons Select Committee—by the way, the MDU is an organisation that specialises in providing indemnity and other legal issues regarding doctors—came up with a different thing. It said:

“The MDU is concerned that the legislation, as … drafted … leaves doctors who do raise it at greater risk of a complaint”,


and then subsequent legal things.

So, as has also been pointed out, at what point would this ever be raised? I support more generally the approach and understand that, if a doctor is asked about this, of course that should be open to a response, unless they do not wish to do so, and part of Clause 5 covers that. But, overall, that initiation should not be in the hands of the medical practitioner, and we will come on later in further clauses to debate the recording of such discussions.

[Lord Harper (Con)]

My Lords, I shall focus my remarks on two points. One is that I thought the speech of my noble friend Lady Monckton of Dallington Forest was very powerful. I strongly support what she said about proper safeguards for people with learning disabilities and she has an amendment which deals with that. But I really want to test the thinking here, because there is a view, and this is where I settled, on whether medical professionals should be able to raise things proactively.

What I was thinking through—I would be interested in what the noble and learned Lord, Lord Falconer, thinks—is that the Bill is obviously about, first, legalising assistance to help someone take their own life, but it is also about putting a process in place, and those are two separate things. I was also thinking about the thing that is currently lawful, which is that someone is able to take their own life if they do not require assistance. I do not know whether it is just me but, if you were diagnosed with a terminal illness and suggested to a medical practitioner that you were thinking of taking your own life if the Bill were not in force, as far as I understand it—there are many in this House who can correct me—the medical practitioner has a duty under various existing suicide prevention strategies to take steps to try to prevent you taking your own life. They are absolutely not supposed to help you; they are supposed to try to stop you, up to and including using provisions in the Mental Health Act.