Baroness Finlay of Llandaff:

Moved by Baroness Finlay of Llandaff

2: Clause 1, page 1, line 4, leave out “capacity” and insert “ability”Member’s explanatory statementThis links to a proposed change to clause 3.

My Lords, I declare my interest as a consultant in palliative medicine in Wales—I have a paid session there. I have received incidental part-time research support from Living and Dying Well, of which I am a non-remunerated director, and I am a patron of several hospices and hospice services in Wales and across the UK.

Before I start addressing this, I thank the Chief Whip for the message that was sent out previously. I hope that the usual conventions and respect for each other will be observed. It was a pity that clearly there was an error yesterday, with a letter that was sent to the press and was being tweeted about at 3 pm. It was addressed to your Lordships, but we did not receive it until 7 pm, and that was after a blank email had arrived. That was an error, but I hope we can be vigilant about the way that we communicate with each other and that we engage in meaningful and respectful conversations.

I wanted to raise that because there has been a question about the number of amendments that are in my name. I am most grateful to the Public Bill Office, which has worked incredibly hard to support us. Forty-four of my amendments are corrections to wording relating to other bits of the Bill and were tabled at its advice to make the intention of another Amendment clear. Please could nobody think that the numbers count? It is the quality of the discussion and the intention behind it that matter, because we are really trying to make this legislation work. It has been difficult because financial aspects relating to palliative care have been deemed to be out of scope.

This Bill is called the Terminally Ill Adults (End of Life) Bill. Every patient who is terminally ill has palliative care needs—100%. Some have them at a minor or relatively easily solved level, others have them at a major and complex level. I worry that we are forgetting the importance not only of palliative care but of specialist palliative care in the way that we talk about services being delivered, and the danger that people will not be able—I go to the word “ability”—to make a proper, informed decision if they do not have the choice to have the care that they need and, if they have complex needs, access to specialist palliative care that has links to pain services, radiotherapy, palliative surgery and all the other aspects of specialist services that I have been privileged to work with over decades. I am well aware they are missing in many parts of the country because we have black holes, I am afraid, in the provision of palliative care in some places. It is literally a postcode lottery.

If you are going to make a decision, and you have the ability to make a decision, you must be able to understand the information given to you. That means that you must have accurate facts that you can understand, be free of pressure and coercion—we will come on to that—and have the capacity to make that decision. We will come on to that.

I will focus on the facts that you may need to make a decision. The diagnosis might be wrong: we know that, at post-mortem, one person in 20 is found to have died of something different from the disease for which they were being treated. The prognosis might be wrong: we know from a really good systematic review that a six-month prognosis has a 48% chance of being right. You might be influenced by fear and experiences from decades ago that do not apply to modern medicine and modern specialist palliative care in these days, or you might have misinformation from the internet. It might even be that you put the wrong wording into the internet. Only last week I heard of a patient who believed herself to be dying because she had misunderstood the information that she had. She thought that she had a terminal illness and would be dead shortly. Actually, it was not a progressive terminal illness, but the communication of complex information meant that, when she heard what she thought she was frightened of, she could not take on any more information. The word “safety”, which my noble friend Lady Grey-Thompson raised, is paramount if we are to enable people to make safe decisions. We know that palliative care can identify remediable causes of distress and misunderstandings.

We know that, if you are a patient on a hospital ward at the moment, you are only too aware of the pressures. There are patients being treated in corridors. You may be treated in a four-bedded bay with perhaps another bed put up in the middle, behind curtains, where you can hear everything going on. That is not an environment to make complex, intimate decisions about what you are frightened of and what you are thinking might happen. You see wards understaffed and the staff unable to cope.

There is something else that has happened. If you are in receipt of bad care, you become depressed, you become demoralised and you develop suicidal thoughts. I draw the attention of the House to the work of Cicely Saunders, the founder of modern specialist palliative care, who described “total pain”. That is where your experience of a physical pain is greatly enhanced by emotional, social and spiritual concerns.

That takes me to the social aspects that will influence a decision and why you have to be able to make a decision on a level playing field. We know that poor living experiences, poor housing and inadequate heating all contribute to despair. There are 111,000 people every year who die in poverty. Of those people wo die in poverty, 28% are of working age, many with dependent children, desperately worried about what is going to happen to their children, and what is the best way to manage the last months of their life in relation to the children that they will be leaving behind.

For ethnic minorities, it is much worse: 47% of black people who die, and who are of working age, die in poverty. That is a pretty shameful statistic. We know as well that there are language problems: 9% of the population in England and Wales do not have English or Welsh as their first language. That means that the way they receive information to be able to make a decision may be quite distorted. Those of us who have worked with interpreters will be familiar with the situation where you raise a question with an interpreter, the interpreter and the patient have a long conversation and the interpreter comes back with one or two words, and you know that you have missed an enormous amount of important detail.

The other problem among these groups is misunderstanding. People think that palliative care shortens life. One in five people in ethnic minority groups think that palliative care shortens your life. They do not understand that good palliative care results in a better quality of life; it certainly does not shorten your life and you may live for a fair bit longer, because we discover problems that have been pulling you down. That figure drops to one in 20 in the white population.

There is a problem in this Bill when we talk about being able to make a decision, because the co-ordinating doctor could be anyone. They could be at any level, with any level of experience. They do not have to be a specialist in the disease or condition that you have. They do not have to have a great deal of experience at all. Sadly, in a survey of the population done recently, 10% of people thought that assisted dying was equivalent to hospice care.

If you have that amount of misinformation out there, things become really difficult. This has been sold as a solution to suffering and a solution to pain. Pain is easily managed. The touching recent interview with Michael Palin about his wife being in a hospice demonstrated how quality of life can be completely turned around with care.

It is being portrayed as if you just take one little tablet and it is a Hollywood death. I am afraid that the evidence is not like that; we will come on to that later on. So I am concerned that, unless we make sure that people are able to make good decisions, they will not be able to. I beg to move.

My Lords, I listened very carefully to what the noble Baroness, Lady Finlay, said. She has put an enormous amount of work into the background of this Bill. One thing she did not address was the wording of the change from “capacity” to “ability”. It seems to me that the Mental Capacity Act runs like a thread right through the Bill to where we get to the issue of consent and what have you.

It may be that the Chief Medical Officer, Chris Whitty, considered that in his comments. The House might be grateful to receive, or hear, extracts from the Mental Capacity Act, which talks initially about an impairment; in this case it would be an illness. It talks about two tests: the diagnostic test and the functional test. The diagnostic test concerns being ill. The functional test is to understand the relevant information about the decision, including the consequences of each option. The second one is about retaining the information—holding on to the information long enough to make the decision—and then using or weighing the information as part of the decision-making process, and then being able to communicate that decision. That seems to me to be clearly about capacity, not ability, and I invite the noble Baroness to withdraw her Amendment.

My Lords, I agree with the noble Lord, Lord Shamash. The noble Baroness, Lady Finlay, speaks with enormous authority based on enormous experience, but we are considering an Amendment which seeks to replace “capacity” with “ability”. As Clause 3 of the Bill makes very clear, “capacity” is the term used because there is a well-established, tried and tested scheme under the Mental Capacity Act 2005.

By contrast, the word “ability”, which the noble Baroness seeks to insert, is inherently uncertain; it has no defined legal meaning. There are later amendments to this Bill, to Clause 3, which do seek to address the concept of capacity in the context of this Bill. They are very important amendments and I look forward to our debates on them—but to insert “ability” as the governing concept would simply cause confusion.

My Lords, I absolutely agree with the noble Lord, Lord Pannick. The noble Baroness, Lady Finlay, and I have worked together for many years, on many health issues, but I do not think she addressed the issue of why she wants to change the wording.

Given that we worked in 2005 on the Bill that actually put capacity into the legislation, I would be interested to know what her reasoning is. I think that is particularly important because the noble Baroness did not address the issue of choice. Of course, ability, capacity and choice are central to this Bill. I wonder why the committee whose report we have before us did not take any evidence at all from terminally ill people who need to make the choice in this matter. I think that was a grave mistake on its part and that if it had, that possibly would have led the noble Baroness to take a different view.

My Lords, I was a member of the committee. The committee noted that we did not take evidence from terminally ill people. That was not a decision that we took as a committee. Suggestions were made and the clerks did not, in the end, manage to provide us with witnesses who were terminally ill, but it was not a decision that was formally taken. I agree that, had we taken evidence from—

With due respect, I must say, as one of the committee members, that that point was put forward on a number of occasions. Unfortunately, there was a Majority of people in the committee of seven to five against, by the way the nomination process worked, so it was the feeling of those members not to invite terminally ill people to speak. The minority of us who were in favour of the Bill tried on a number of occasions to hear them, but that was not allowed.

My Lords, I do not think it is helpful to your Lordships’ House to be going into discussions that included private discussions. The Motion that the House passed did not suggest that. Noble Lords will also know that there are ethical concerns about calling people who are so vulnerable.

I remind your Lordships of the conventions of the House. An Intervention on an intervention is not ideal. If we can follow normal conventions, that will be helpful.

I thank the noble Baroness. I note that my former tutorial partner from Oxford was intervened on, or interrupted, for speaking for too long beyond 10 minutes. I shall endeavour still to be within 10 minutes despite having been doubly intervened on.

The report noted that the committee had not taken evidence from terminally ill people. I will leave it at that in terms of responding to the noble Baroness, Lady Thornton. However, we took evidence, as we were requested to do, on safeguarding and procedures, and, within the confines of a very brief committee, we took a wide range of evidence. Should we and could we have taken more? Absolutely, but within the confines of what we were able to do I think we did a job. I certainly did not at any point speak or vote against, or indeed take any view on, the idea that we should not take evidence from terminally ill people, so it is unfortunate that that has become a topic of debate.

The reason I rose to speak is that the question of capacity versus ability is hugely important. There are references throughout the Bill to the Mental Capacity Act, but to suggest that this one Amendment is not appropriate is an unfortunate legal point. The amendment says that people should have the ability to make the decision, but “ability” reaches far beyond the narrow confines of the Mental Capacity Act. At various points in Committee, we will talk about capacity. The committee took evidence on capacity, and a key thing to bear in mind about the Mental Capacity Act is that it was never designed for a life or death decision. We need to be very clear as a Committee of the Whole House and as parliamentarians—

The Mental Capacity Act is used in life and death issues in healthcare. If someone decides not to have care, the doctor has to ensure that that person has capacity to make that decision, so it is already used in that way.

My Lords, I am grateful to my noble friend for pointing out that the Mental Capacity Act is used for life and death issues, but it certainly was not designed for assisted dying and I suggest that it is not a robust test for these particular purposes. If we are going to pass this legislation, we need to be sure that we have tests that are as robust as possible.

A particular point that we need to bear in mind is that the legislation was not drafted in the way that it is normally drafted; it was done in a way that was described as “on a shoestring”. It is surely up to your Lordships’ House and the other place to ensure that the provisions we have in place do not look as though they have been made on a shoestring. They need to be robust. Decisions about capacity can be taken at a moment in time. We need to ensure that the decision where someone says, “Yes, I think I want an assisted death”, is when they are at a later stage in their illness.

The noble Baroness says that this applies only to moments in time. Is she aware that Section 24 of the Mental Capacity Act applies the concept of capacity to allow people to make advanced decisions that at a later stage they will not wish to have treatment that is life-saving?

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.

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.

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.

My Lords, I declare that I was a vice-president of Hospiscare in Exeter. I am probably the only person in this Committee who has tried cases of capacity, again and again, both as a High Court judge and in the Court of Appeal. One case was so difficult that the Court of Appeal, where I was presiding, sat until 1 am. Noble Lords may not have thought that the Court of Appeal did that very often. It is important for your Lordships to realise that some cases that I tried were extremely easy to try—one in particular involved a Miss B, who was obviously competent—but other cases were extraordinarily difficult. One case—the one that we did until 1 am—concerned somebody with a needle phobia who was expected to need a caesarean, and she objected because she could not bear the idea of a needle. At one in the morning, we took the view that she did not have the mental capacity to decide on her caesarean. She was hugely relieved and had the operation without any trouble. But that was not a unique case—the time was, but not the problem.

My Lords, I of course enormously respect the experience of the noble and learned Baroness and her ability to make these judgments. I am sorry that she had to sit until 1 am. But does she feel that those decisions would have been more or less complex and difficult if she had been judging them on the basis of ability?

I have not the remotest idea. It is such an important point that I would have to go away and reflect. I am not commenting on ability or capacity; the point I am making to the Committee is about the difficulty of this for a doctor, or several doctors—probably GPs. The Royal College of Psychiatrists, of which I am an honorary fellow, has said firmly that it wants nothing whatever to do with the panel or with this, so doctors who are not psychiatrists will decide, with other people, whether somebody has or does not have capacity. That is what is currently in the Bill.

I warn your Lordships that this can be difficult, particularly when it involves depression. I had a friend, a solicitor, who suffered from depression. She said that she used to fall into a black pit and try to crawl up the sides, which were slippery. It was clear to me that, when she was in that depression, she certainly did not have the ability to make serious decisions. So I warn your Lordships about the potential problems of assessing capacity.

My Lords, I support the Amendment in the name of the noble Baroness, Lady Finlay, to substitute “ability” for “capacity” in Clause 1(1)(a). As Clause 3 explains—we have already spoken about this at length—capacity is to be understood as defined in the Mental Capacity Act 2005. But, in my view, capacity so defined is the wrong measure to use to discern whether someone is in a position to make a proper judgment about ending their own life.

The Mental Capacity Act sets a very low threshold for having mental capacity. The Act requires—it could hardly do otherwise—that the person concerned must be able to understand the information relevant to a decision, but it dictates that this requirement should be understood in the laxest way, because Section 3(2) states:

“A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)”.

We have heard from the noble Baroness, Lady Finlay, about the problems of information, facts, evidence and understanding that she has encountered in her very distinguished work in that specialism. In effect, then, someone who can grasp only a diluted, simplified version of the information needed for a decision is still thought to have capacity to take it.

In Section 3(3) the Act adds that, although the person concerned may be able to retain the information, as per Section 3(1)(b):

“The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision”.

The Act therefore allows that someone who cannot retain information in the normal sense of the word “retain”, which means that something is kept, in this case in the memory, none the less has capacity.

Although the Act makes the threshold for mental capacity as low as it can, arguably that is good for the purpose of the Act, because very strong reasons are required before we take an individual’s power of agency over important decisions about the conduct of their life, which is the result of declaring that they lack capacity. If there are any grounds, however slight, we should accept that they have capacity.

But, in the case of the Bill, this position is reversed. We are dealing here with a decision that, in its gravity and irrevocable nature, is completely unlike most—or all—of those important decisions that the Mental Capacity Act was designed to regulate. Where the decision is to end one’s own life, what matters above all is that the agent is able to understand its meaning and consequences. It is not enough in this case that the information relevant to the decision is grasped in a simplified or pre-conceptual form, as the Mental Capacity Act definition would allow, nor that the information is retained only for a moment, then to be forgotten, as again is allowed by the Mental Capacity Act definition. The threshold for being allowed to take the decision must be much higher. Even though making it higher would take away the power of agency from more people than a lower threshold would, it is wholly justified when, as here, it concerns a decision that, if made, will entirely and irrevocably remove an individual’s power of agency.

I agree that “ability” lacks the precise legal definition— I am very grateful to the noble and learned Baroness, who was very candid about what that could mean—that “capacity” has. It is better to have an imprecise phrasing that points in the right direction than one that points the wrong way. Moreover, the phrasing of the amended clause indicates how we should understand ability. It is an ability to make the grave and difficult decision to end one’s own life. Clearly, an ability commensurate with the gravity of that difficult and grave decision is an appropriate way. I support the aim, and, indeed, the wording, of the noble Baroness’s amendment, because of the gravity of the decision that is being taken.

My Lords, I declare my registered interest as a trustee of St John & St Elizabeth Hospital in London.

The first Clause sets the tone for the rest of the Bill. It has so many deficiencies and such inherent danger that it has rendered necessary the tabling of so many amendments. Multiple amendments were, of course, tabled in Committee in the other place, but they were not permitted to be debated or voted on. Our duty is therefore to scrutinise the Bill, not to meet arbitrary timetables and a limited number of Committee days. We have to do it properly, because on this work that we do rest questions of life and death.

Clause 1 deals with the “who”; who can decide to end their life with medical support or to be assisted to end their own life when they cannot do it themselves. The definition of “who” is simple and sparse. It demands only that someone has capacity, has reached the age of 18, is ordinarily resident here and is registered with a GP. Clause 1 also deals with what is required—the process for determining. It requires that any decision made by a person who fits the definition in Clause 1 is made by someone with

“a clear, settled and informed wish to end their own life, and … has made the decision … voluntarily”,

and who is not the product of coercion or pressure. We will come to that, but it is not enough.

The decision to end one’s own life is the most profound decision that one can make. One might argue that some decisions are not as immediately serious. If, in a fit of despair or loss of hope, I decide to refuse treatment, I might still change my mind. Similarly, if I stop eating, I may choose to reverse that decision. If I decide to end my life, there is no coming back and no reconsideration, and that is why it is such an important matter.

I think the noble Lord, Lord Pannick, referred to advanced directives in these provisions, by which people can declare their future care, but the decision to refuse treatment and go for a natural death is not a proactive decision to end life. There is no precedent for the Mental Capacity Act being used for a decision to end life.

I would like to briefly intervene, because every day of the week there are hundreds of decisions made in the NHS and independent care about life and death. I will give a very brief example. My brother has had renal failure for 40 years. He has been brilliantly looked after by Guy’s Hospital, and, after the failure of the last transplant, he has been on dialysis for the last five years. It has become more and more wearing and disabling for him, and he has decided that, by Christmas, he would like to make the final decision, with the help and the support that he is getting from the Guy’s team, to end his life.

He is supported in that by his wife, brother, sister and children. We have supported him to make his own decision. It is a life and death decision that he will be supported through. That is the way it happens, day in, day out, in the health service. It is a nonsense to say that life and death decisions are not made. Furthermore, what test will they use? They will use the Mental Capacity Act.

My Lords, the noble Baroness has told us a very sad story about her brother, but it really is not on the issue that I am speaking of today. It is, of course, the case that decisions about life and death are made. What I am saying is that, in this case, the decision is to ask the state to enable the person to administer that, and for the state to bring all the forces and resources available to do it. That is what we are debating today: does the Bill provide a situation in which “capacity” is the correct term to use in this Clause?

I support Amendment 2. The use of the word “capacity” is undoubtedly provided for in the Mental Capacity Act. This Bill says that

“references to a person having capacity are to be read in accordance with the Mental Capacity Act”,

which is very helpful. The Mental Capacity Act was not passed to deal with the decision to end one’s own life, but rather it was formulated with the basic assumption that a person has capacity. In November 2021, the Supreme Court said in A Local Authority v JB:

“‘A person must be assumed to have capacity unless it is established that he lacks capacity’”.

It continued:

“This principle requires all dealings with persons who have an impairment of, or a disturbance in the functioning of, the mind or brain to be based on the premise that every individual is competent until the contrary is proved. … Competence is decision-specific so that capacity is judged in relation to the particular decision, transaction or activity involved. P may be capable of making some decisions, but not others”.

Therefore, there are circumstances in which capacity cannot be assumed and a person may not be capable of understanding, to the necessary extent, the information that should underpin any decision-making, or of analysing the consequences of that information or of making a decision in their own best interests. When these conditions are not fulfilled, the Mental Capacity Act requires, in particular circumstances, that a decision be made by a third party, but always in the best interests of the person. As the Royal College of Psychiatrists told us in evidence,

“an assessment of a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding” than assessing capacity for treatment decisions.

We have received very helpful evidence from Professor Gareth Owen, Professor Alex Ruck Keene, and Professor Katherine Sleeman of the Complex Life and Death Decisions group at King’s College London. They have stated quite clearly that

“the MCA 2005 was not designed to be a universal framework for determining capacity.  It is primarily a workaround for the inability of a person to give consent to actions required to secure their health and social care needs. In the MCA 2005, the principles applying to and the test for capacity apply in a context where a decision can be taken on a ‘best interests’ basis for the person if they lack capacity”.

In the context of the Terminally Ill Adults (End of Life) Bill, they state that,

“no such best interests decision could ever be made”.

Capacity is not a constant state. It may fluctuate depending on a variety of circumstances, including some illnesses, disabilities and the side-effects of medication. A person can have capacity in relation to one decision and not another. A person may have capacity at one time, but not another. It is an enormously complex issue. When the decision in question is the decision to end one’s own life, capacity to make that decision requires very significant analysis in each case at the time in question.

That is the reason why “capacity” is not an adequate word to deal with the situation in which a person is coming to make a clear, settled, and informed decision. “Capacity” cannot be the test. “Ability” is a wider test, and there will be opportunity for the Committee to consider what that might look like as we go through future groups.

My Lords, this issue was well discussed in the Select Committee, and I want to refer to Professor Sir Chris Whitty, who I think knows a little bit about this. I want also to respond to and endorse the words of the noble Baroness, Lady O’Loan, because she talked about concentrating on the interests of the person concerned. They were not exactly her words, but she was saying how important that was. We are talking here about someone who is dying. They are in the last months of their lives and, under the Bill, they must have capacity throughout the stage for which this legislation will provide. In other words, at each stage, they must have capacity. Professor Sir Chris Whitty, who knows a lot about this, spoke on it—it is on page 153 of the committee’s report, if anyone would like to look. He said:

“There is plenty of evidence, and it goes with common sense, that, when people use an existing system that they have used for many years, that they are used to and that has been tested in the courts, they are far more likely to be able to follow a reproducible and sensible pattern of making decisions than if they are faced with a completely new approach which they have not used previously and in which there may well be legal ambiguities the courts have not yet adjudicated on”.

If we want this Bill to work, as I assume the House of Commons did when it sent it to us, and as I think a Majority of this House does, we must give to doctors and everyone else a form of words that they already understand, they can use and, above all, what is in the best interests of the patient in front of them.

My Lords, I am a little confused about this debate. The debate is on Amendment 2, which would replace “capacity” with “ability”, but we have heard hardly anything about ability. We have heard from the noble Lord, Lord Pannick, who said that it would replace a defined term with an undefined term, which is an issue we should take seriously, but most of the debate has been about whether the definition of “capacity” in this Bill—that in the Mental Capacity Act—is the right one to use. We are not debating whether “ability” is a better term; I hope that we can do that and move on to some other important areas in this Bill.

My Lords, I declare my interests as trustee of a children’s hospice. I also talk as a retired doctor with experience of looking after terminally ill adults and children. However, I also talk as somebody who is pretty familiar with conflict and polarisation, having been attacked and undermined on social media. I know that everyone in this Committee is committed to improving this Bill, and so I was somewhat dismayed by the article in the Times, which I felt led to the targeting, unfairly, of some of my noble friends who have been committed to improving this Bill and have been working hard to do so. I am not sure what the objective of that was, but it is regrettable.

People have asked about ability per se, so I talk now as a developmental paediatrician. We generally talk about abilities as skills that we acquire, whether it is a baby learning to walk or talk, or other skills that are more sophisticated. The skill that allows us to make reasoned judgment is the development of what is called the executive function—I am sure that noble Lords are all aware of that. That sits in the frontal lobe of our brains. As we well know, teenagers are pretty ill developed in that respect: they can talk with great authority about why it is extremely dangerous to drive too fast and break the speed limits and be very convincing on how they understand that and then, the next day, do exactly that, particularly under peer pressure. That judgment is something that develops but can also be lost, as we well understand, when somebody sustains a head injury or maybe has a brain metastasis that impacts that area, or during dementia; our judgment deteriorates.

The word “ability” allows us to think about people who might never develop that ability because of a problem in executive function, which is common in some people with autism. They may be well able to repeat what they have read online or heard from peers, but they have not fully understood and processed it. Some people with autism are of course well able to make those judgments and some are not: it is complicated, as my noble and learned friend pointed out, and there is perhaps an unwarranted confidence in doctors’ abilities to do that. It is very much a multidisciplinary team effort and one that requires somebody who knows the person well, or maybe multiple assessments. This is complex and “ability” encompasses a wider facet than capacity alone.

My Lords, the Mental Capacity Act 2005 assumes capacity until proved otherwise. However, many people with learning disabilities have neither the ability nor the capacity to make life-changing or even death-making decisions. Under the Bill, because they are chronologically adults, they are not permitted to have anybody with them when the subject of assisted suicide is raised. This is something I will be discussing later in Committee.

My Lords, I am glad to be able to follow the noble Baroness, Lady Monckton. I declare my interests as a past president of the Royal College of Psychiatrists, and I have a parliamentary scholar, a psychiatry trainee who is appointed by the Royal College of Psychiatrists to work one day a week with me. I was a member of the post-legislative scrutiny committee on the Mental Capacity Act. I also founded and chair a visual literacy charity called Books Beyond Words, which is relevant in a way.

I was listening to the noble Baroness, Lady Lawlor, speak about communication. It reminded me that 18% of the adult population in this country are functionally illiterate. This is really important when we think about making decisions of such importance. I have an Amendment later proposing a different framework for assessing capacity, and I will obviously talk about that then, but I want to reflect on how the charity Beyond Words creates really difficult stories in pictures, without any words, to try to help people who struggle with words to understand and make decisions about such things as the care and the treatment that they might require. We currently have about 80 stories, all about the whole story that people can discuss with their peers, their healthcare professionals and their families, to help them to understand an issue, so that they will not be left out but will truly understand. It is very easy to think that somebody understands when you have explained something in words, in simple words, and that the person is compliant with it, but when you explain in pictures and enable the person to say what they have read in their own words, then you get an idea of whether they have understood.

I have been trying to think about how I would be able to create a story in pictures to explain this Bill. It would be several stories. It would take an awfully long time and an awful lot of work to be able to do it. I just wanted to respond to what the noble Baroness, Lady Lawlor, said; I thought it was very important.

My Lords, at the heart of this debate is the question of safety. It is very impressive to hear all the experience around the House and I know that people shared my experience when we took the Mental Capacity Act through the House in 2005. That Act had been years in the making. It had most profound and serious consideration in this House and, most unusually, it then had post-legislative scrutiny, where we went into every aspect of the Act. The noble Baroness, Lady Browning, is quite right; there were many concerns raised about the practice and the absence of proper training, but no one, to my knowledge, challenged the definition of “mental capacity”, recognising the huge complexity of the term, the different circumstances in which it is implemented and people’s responses to it.

The noble Lord, Lord Pannick, said that we have a framework. Safety, I think, relies on and is expressed in the 20 years of practice in the way the Mental Capacity Act has been implemented and has benefitted so many. The assumption that there is mental capacity was in itself a huge and very important statement of a positive right in the law. The Bill before us is another statement of a positive right in the law, where there has not been one, and where so many people are desperate for us to find a route through this urgently.

We have the experience of that Act, the experience and expertise that this House put into reviewing that Act and confirming it with the recommended improvements, and the way the Act is understood—as my noble friend has said, not least by Chris Whitty—as well as its unknown interpretations. We have just heard about the complexity of defining “ability”. We already know of the huge, unframed and unknown complexity of creating another concept in law in the context of a Bill which, itself, has to be so carefully understood, implemented and communicated. We have to stick to what we know, even though it is still a work in progress, because it can still be improved. I hope it will be improved, in the course of this Bill. But it will be immensely dangerous, unless I hear a completely conclusive explanation as to why “ability” is better, if we were to depart from “capacity”.

My Lords, under the Mental Capacity Act, the decision is not made by one individual; the Mental Capacity Act provides for decision-making, which includes the experiences of families et cetera. It is a profound process. This is not a profound process; it provides for a doctor to make a decision about whether a person has capacity and a second doctor to sign it off. It is not the same thing at all.

I attended a meeting, as did the noble and learned Lord, Lord Falconer, during which a doctor told a story about a patient who had signed up for assisted suicide. When the time came, he took a sip of the medicine and said, “I’m not drinking this”—upon which his family told him, “You decided you would die this day; you must do it”. He would not drink it. It took him seven days to die.

The noble Baroness is quite right, and it is a very important part of mental capacity decisions that the families are involved, supportive and completely understand the implications of what it means to have either incomplete capacity or capacity that varies from time to time. There is no reason— I will leave my noble and learned friend Lord Falconer to answer this point—why this should not be a better Bill, and maybe it can be better if we address these particular questions.

My Lords, I thank the noble Baroness, Lady Finlay of Llandaff, for her amazing dedication to her patients. That is beyond question. I hope we are united as a House in paying due respect to that fact and also to the fact that her professional experience is a tremendous asset to this House.

The noble Baroness, Lady Finlay, spoke of her professional experience, and I will speak very briefly of my lived experience on the other side of the table—or the bedside—as a patient. She mentioned Dame Cicely Saunders and the reference to total pain. I simply say that I have been there. My disability has taken me there far more times than I would like to remember. It is awful. The bottom falls out of your world, and your capacity to think clearly, rationally and normally evaporates. So I simply say that it is crucial that patients have the ability to choose: the choice between assisted death and specialist palliative care—a choice that they do not currently have.

I simply finish on this point. Other noble Lords have mentioned the Royal College of Psychiatrists. I ask the Committee to take note of the fact that the Royal College of Psychiatrists states that applying the Mental Capacity Act to the decision to end one’s life is an entirely novel test—in “uncharted territory”, with “no experience or precedent”.

My Lords, earlier on in the debate, there was a discussion concerning members of the committee, on who was or was not called, or who was denied the right to be called to it. I suggest that the straitjacket of the time this House allocated probably did not allow the relevant committee the appropriate time to call everyone that it thought was appropriate. It ought to have been given more time, but it seems that it had to be rushed.

Concerning the Mental Capacity Act, Margaret Flynn, chair of the National Mental Capacity Forum, said it was designed to protect us

“when others start to make decisions about our lives … Assisted dying was not on the table during the Law Commission’s consultation which resulted in the MCA”.

Therefore, the suitability of the Mental Capacity Act 2005 as a test for a decision to end one’s life is a major source of debate. I believe the many experts and professionals arguing that it is insufficient for this specific irreversible decision.

The MCA was not designed for assisted dying. It was created to safeguard people who lack capacity in decisions about their care, treatment or finances. Assisted dying was not on the table during the Law Commission’s consultation. The Royal College of Physicians, as the noble Lord said a moment ago, said that applying the MCA to the decision to end one’s life is an entirely novel test in uncharted territory with no experience or precedent. It is a very low threshold. The Royal College of Physicians argues that assessing a person’s mental capacity to decide to end their life is an entirely different and more complex determination, requiring a higher level of understanding than assessing capacity for treatment decisions.

I have listened very carefully to the noble Lord and a number of others. I am still struggling to understand what the higher test of ability would be, over and above the Mental Capacity Act. Will the noble Lord let the House know what that higher test is that people would have to go through on ability rather than capacity?

The noble Lord knows that I am not a proposer of the change of words. I am dealing with capacity. Therefore, I am also dealing with the fact that professionals within the field have stated that to use the Mental Capacity Act for a decision to end one’s life is an entirely novel test and uncharted territory for which there is no experience or precedent. That is not my statement; that is the statement of professionals within the field. They say also that to decide to use it for the decision to end one’s life is an entirely different and more complex determination requiring a higher level of understanding than assessing capacity for treating decisions.

Capacity can fluctuate in terminally ill patients due to physical fatigue, illness, medication or delirium, making the irreversibility of the decision risky under this framework. Therefore, I ask this Committee to think carefully in trying to base its whole argument on this being good legislation because mental capacity is the deciding factor.

I wonder whether I can help the Committee. I think we may be discussing two rather different things, so I suggest that we decide which of them to discuss.

There is the discussion as to whether the word “capacity” really includes all the things that people are pressing for when they use the word “ability”. That is the point that the noble Lord, Lord Pannick, was clearly making when he expressed the nature of the word “capacity” as used in law. It is perfectly understandable that people would want to say, “Here is a word that we use. It’s a word which is defined and has been defined over a long period of time. Therefore, it’s stood the test of time”. I understand the noble Baroness, Lady Andrews, who rightly mentioned the amount of time that had been taken to deal with that.

The question that others are asking is slightly different, and it has to be taken into account. They are pointing out that this definition has not been thought adequate by other professionals. Those people, who are not lawyers, say that this is not adequate for the decision being made. The royal college makes that very clear, and this Committee should not ignore the fact that it takes that other view.

It is also difficult to say that, because we have a definition in one category that seems to have worked over the years, it would not be sensible to try to make a better one for this Bill. I think I know, deep down, the difference between “capacity” and “ability”. Just recently, I have been working with a relative who has been trying to understand what the doctors are asking her. She certainly has the capability to understand it—she is capable in every way under the Act—but, until now, she has not had the ability to do so, and I am not sure I have had the ability to explain these circumstances. There is no doubt that, in common parlance, the word “ability” has a different meaning from the word “capability”.

Why do we not use both words? Why can we not say “has the capability and the ability”? If we cannot do that, I ask the people who promote the Bill to consider whether they can produce an answer that covers the very natural feeling that people have when they look at those words.

This Committee has to remember that we are producing legislation that will not be easy. Many people have said that. The answer to them has been, “Well, if it’s so difficult, perhaps we ought to narrow it and just have this word”. I do not think that is a very good argument. If it is very difficult and the specialists say they cannot deal with it under this definition, perhaps this Committee ought to do its job by finding what word should be used and how, so that people can make those decisions. The noble and learned Baroness, Lady Butler-Sloss, will then not have to think too hard about whether it would be easier for her to make decisions under that proposal than under the one we have.

I say to the noble and learned Lord, Lord Falconer, that this debate has shown that perfectly reasonable people find a difficulty in understanding “ability” and “capability” as the same thing. If they are not the same thing, those people will want something to ensure that the narrowness of “capability” does not mean that people make decisions when they do not have the ability to do so.

My Lords, I speak definitely not as a lawyer or as part of the medical profession in any way. It appears to me that the Mental Capacity Act uses the balance of probabilities when making a decision, rather than “beyond reasonable doubt” as, in my understanding, the criminal court does. For such a definite decision as whether to end your life, the balance of probabilities is insufficient. Therefore, is the current definition of capacity in the Act sufficient for this job? I suspect not. Is “ability” the right word? I am not sure. Somewhere along this line, to the point made by my noble friend Lord Deben, there is an answer, and maybe two words is right.

My Lords, I will keep this brief. I was not going to share this at this point because it is quite personal and because it takes a lot for me to counter the noble Baroness, Lady Andrews, for whom I have huge respect. She was the first person to invite me to the House of Lords for tea, many years ago. I do not doubt that the Mental Capacity Act has been a huge advance in how we deal with these issues.

I accept that the noble and learned Baroness, Lady Butler-Sloss, is probably one of the few people in this place to make judgments in the courts and the Court of Appeal on mental capacity. I suspect that more of us have had to go through the process of helping a loved one through a mental capacity assessment, although I suspect that number is also still low. My father has dementia. I have had to support him through a mental capacity assessment. No matter how clear the Act or various legislations or definitions may be on paper, it is extremely difficult at times to take someone through that process. All he had to do was prove that he had capacity to instruct a solicitor, a decision far less serious and far less terminal than the one we are discussing today.

If you assessed my father’s capacity, you would find—on the comments made by the noble Baroness, Lady Hollins, about literacy and numeracy—that my father has near-perfect literacy and numeracy. We have had comments about executive function. You would find that he has near-perfect capacity for executive function to make important decisions. You would also find that he has virtually no short-term memory. He is more than capable of making a decision, but that decision is gone in 30 seconds—sometimes sooner. If you apply that to this situation, he would be able to make a decision but would not know about it at the point that decision was acted upon.

Returning to the comment from the noble and learned Baroness, Lady Butler-Sloss, about whether it is capacity or ability, I pick up on the comments from the other side of the Committee recently. There is not enough, in the way we judge capacity at the moment, to make this practicable and desirable. We certainly need more. I am not sure whether it is “ability”, but what we have at the moment is not enough to deal with this in practice.

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.

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.

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.

My Lords, I thank the noble Baroness, Lady Finlay, for bringing this debate to the Floor. I declare my interests as chief executive of Cerebral Palsy Scotland, and I have been involved with the Scottish Government on neurological conditions and policies for many years.

What has struck me in the debate so far is something that the noble Baroness, Lady Hayter, said about concentrating on the interests of the person. This is what I see every day when I deal with vulnerable people and they are dealing with service providers, whether in health, education, housing or whatever. I take the point your Lordships have made that this debate is about the difference between “capacity” and “ability”; capacity, as we define it in the Mental Capacity Act, is something that professionals will assess. They have lots of experience of doing that, and that is great. However, if we come back to concentrating on the interests of the person, the person is quite often in this difficult, complex situation for the very first time. Therefore, as my noble friend Lord Deben said, their ability to take on complex information, potentially when there might be multiple comorbidities and issues going on, is very different.

We see it in children in education and in people with communication difficulties—I have an Amendment later on about how we support people with communication difficulties to navigate this. But we see it every day with the ability of people to take on something really profound that professionals are used to talking about—and we are professionals in here; we can talk about definitions and how we define things in legislation. I wanted to question whether people in the street that will be dealing with this have the ability to understand all the options, the prognoses and everything in front of them.

Does the noble Baroness accept that someone can take their own life now? They are dying; it is completely legal for them to commit suicide without anyone doing any checks about whether they have capacity, ability or anything else. So the Bill is in fact adding a safeguard that is not there at the moment, because at the moment someone can take their own life.

I thank the noble Baroness for her Intervention. Every suicide is a tragic situation, and I am sure that all of us would wish to help that person. But that is not what the Bill is about. It is about whether we find a method where they have a settled will to make a decision—to make a choice.

Is the difference not absolutely fundamental? The Bill allows the state to enter into this discussion and allows somebody in fact to kill somebody else. That is wholly different from suicide, and the noble Baroness is wrong.

I thank my noble friend for saying what I wish I could have said myself. I will end, because we have had a very long debate on this. I just want to emphasise that from my experience of dealing with people, with families, versus what professionals think, it is a very different landscape when we compare those who do it every day with those who are faced with these difficult decisions for the very first time.

My Lords, I want to add a correction for the noble Lord, Lord Winston. The Royal College of Psychiatrists voted on the principle and it was a 50:50 split. The issue of this Bill is different. The college has taken the view, after a great deal of consultation, that it does not support the Bill.

My Lords, may I clarify that? I have just checked the information. My noble friend is correct in what she says, in that the support was 50:50, but the Majority of respondents—64%—opposed expanding eligibility and 65% of them were not confident that consent could act as an adequate safeguard against unfree choices, such as those resulting from coercion or psychopathology.

My Lords, it is clear, I think, that we all want the same thing here. Whatever one’s feelings about it generally, if this Bill is passed, we want to make sure that the person is in the right position—I do not use either “capability” or “ability”—to make a decision on whether to take part in assisted dying.

We all want the same thing, so what we have to decide is whether we believe that the existing framework, the Mental Capacity Act, can work here. I have heard a body of evidence that says it can. I respect in particular the evidence from Sir Chris Whitty, who, as Chief Medical Officer, is probably our highest adviser in the land in the medical space. He believes that it can do it. I also respect the opinions of the psychiatrists who have written in and said that, in their professional opinion, they are able to use the Mental Capacity Act to assess whether a person is in the right position to take part in assisted dying. So, as the noble Baroness, Lady Andrews, and others have made out, we have a body of evidence and 20 years of experience showing that the Mental Capacity Act can work and is already acting in very similar situations.

One can argue whether these two things are exactly the same, but they are pretty similar: both involve life-and-death situations, such as “do not resuscitate” orders, people deciding not to eat or drink any more, and people with motor neurone disease asking to come off ventilators. These are all very similar situations that, today, are decided under the Mental Capacity Act. So we have a system that is being used and which our best adviser says works, and we are setting an unknown definition against that. If we set about asking, “What do we mean by ‘ability’?”, we would probably all come up with very different answers. This would be untried and tested; it may take years, if not decades, to find something, against something that exists today. It would be very confusing: when do you use the Mental Capacity Act and when do you use this new definition?

Again, we all want the same thing: for the person to be in the right position. Our highest expert in the land says that the Mental Capacity Act can do it, and a number of psychiatrists are also saying that they can make the assessment under it. To my mind, that is what we should be considering.

My Lords, I agree entirely with what the noble Lord, Lord Markham, just said. We have a tried and tested way of measuring people’s capacity, but we do not have a single tried and tested way of measuring people’s ability. That is a very broad concept, and anybody who has worked in education at any level will say with absolute certainty that it would be unwise to replace what is currently in this Bill with “ability”. There is no definition of it—it can cover a vast variety of different kinds of ability—and finding an adequate test could take years.

My Lords, I declare my interest: I received a personal donation from Dr Etherton to fund research support. Normally, I would agree with the noble Lord, Lord Pannick, in relation both to legal terms that are not defined and to moving to something that is ill defined; he will find, in the later groups of amendments with which I am involved, that this is a key concern that I have had.

The Amendment in the name of the noble Baroness, Lady Finlay, talks about “ability”. I have struggled with that, for the same reasons as the noble Lord, Lord Pannick, but I have been persuaded that there is something in this. I served on your Lordships’ Select Committee. One of the benefits of serving on those Select Committees is that you sometimes get to meet your hero. Professor Sir Chris Whitty sat in front of us as the highest expert in the land, but when he gave evidence to the Commons Select Committee he had to write afterwards because he had misunderstood something and had to clarify it. It was after the Third Reading vote, I think. His letter was put in our pack and made public; I thank the noble and learned Lord, Lord Falconer, for nodding. One has to consider the fact that even he got it wrong.

We also heard from Professor Alex Ruck Keene, who is an honorary KC, who trains practitioners in how to apply this test. We heard that, although it might be common and used up and down the land, there is a considerable body of evidence that practitioners are struggling to apply it in what he calls the 15% of cases that are complex. I think this is the kind of case outlined by the noble and learned Baroness, Lady Butler-Sloss.

The committee’s time constraints meant that I was not able to put that evidence to Professor Sir Chris Whitty, as Members’ questions are limited, but I put the following to him because it is sometimes helpful for us to think about the practical realities. The MCA would bring with it its other parts, not just the capacity test. There is a presumption if, for example, an 18 and a half year-old who has had a life-limiting condition all their life is being assessed and the doctor doubts whether that young person has capacity that they have capacity—as far as I understand Professor Ruck Keene. We have to take that evidence into account. There has been some discussion about the royal colleges, but as political parties we know that some people will peel off from the corporate view. We need to take seriously that the royal colleges are not supportive of the Bill. While Professor Sir Chris Whitty might—

My Lords, I declare an interest as chair of the Royal College of Obstetricians and Gynaecologists. I have followed what the different royal colleges are saying and it is not true to say that they are opposed to the Bill in general. Most of them are neutral, one or two are in favour and one or two are against.

As people around me are saying, I do not think I said that. They are neutral. The royal colleges have said that they have problems with the Bill, but they have been neutral on the principle, save for the Royal College of General Practitioners. I am sorry; I stand corrected on that. They are neutral, as is the Association for Palliative Medicine, which is not a royal college.

When one looks at the evidence that we took, of course individuals from within that group would come along whom we had to call. It was right that we did that, but one looks at a corporate view. I enormously respect Professor Sir Chris Whitty, but I heard his evidence on this and he was not the highest expert in the land. He was humble enough to write to correct himself, as he had misunderstood the Mental Capacity Act when he gave evidence in the Commons.

My Lords, we should all be grateful to the noble Baroness, Lady Finlay of Llandaff, for bringing this matter before the Committee, but also to my noble friend Lord Harper, who has highlighted some of the deficiencies in in the Mental Capacity Act. Yes, it may be tried and tested in its current usage but, as we heard from many sides of the Committee, it may be inadequate for dealing with death issues.

I was going to speak in support of Amendment 2, but I might also be willing to support the potential oral amendment from my noble friend Lord Deben. When considering important decisions, particularly in the context of healthcare, it is crucial to understand the distinction between capacity and ability. This is especially relevant for terminally ill patients, as questions about decision-making may arise on treatment options, advance directives and legal matters.

I believe that we should change references from “capacity” to “ability” when discussing decision-making for terminally ill patients. The reason for this change is to ensure clarity and accuracy in describing a person’s actual situation. We should not be afraid to bring in a new word if it is more relevant than “capacity”. Although “capacity” is a legal and clinical term for specific criteria, “ability” is a broader term that may better reflect the practical realities and nuances of an individual’s situation. Using “ability” can help to avoid misunderstandings and ensure that patients are supported in ways that are appropriate to their unique circumstances.

In all the discussions I have been listening to carefully today, very few Peers have attempted to make a distinction between capacity and ability—I think the noble Baroness, Lady Cass, touched on it. Could I try—not try the patience of the Committee—my lay man’s definition? Capacity refers to a person’s legal and clinical status to make a specific decision at a specific time. It is assessed according to the established criteria of the Mental Capacity Act 2005. To have capacity, a person must be able to understand, retain, use or weigh relevant information and communicate their decision. Capacity is decision specific and can fluctuate over time. A person may have capacity in some decisions but not others, as the noble and learned Baroness, Lady Butler-Sloss, pointed out.

“Ability” is a broader and, of course, less technical term that refers to a person’s general competence or skill to do something. It does not have the same strict legal or clinical criteria as “capacity”, but we should not be afraid of that if it is more relevant for an end-of-life Bill. “Ability” may refer to a wider range of actions, including physical, cognitive or practical skills. Conversely, a person may have the ability to make a decision in a practical sense, even if they lack legal capacity as formally defined.

In summary, “capacity” is a specific legal and clinical concept that determines whether a person can make a particular decision at a given time. “Ability” is a broader term that refers to practical competence. For terminally ill patients, using “ability” instead of “capacity” in some discussions may provide a more accurate and compassionate reflection of the individual’s experience and needs. Capacity is not only about understanding and remembering information; it also involves the ability to use or weigh that information as part of the process of reaching a decision. If a person cannot balance the risks, benefits and consequences, or fails to appreciate the gravity of the choice, their decision-making process is impaired.

This is particularly vital in the context of life-ending decisions, where the stakes are ultimate and irreversible. The capacity to make a decision as serious as ending one’s own life is contingent upon the ability to understand all relevant information, retain it, use it and weigh it in the decision-making process—and to communicate that decision coherently. If a person lacks any of these abilities, they do not meet the threshold for capacity, and it is both lawful and ethical to conclude that they may not be able to make such a decision.

I conclude by saying that a cornerstone of informed end-of-life decision-making is a thorough understanding of all available care and treatment options. Terminally ill adults must be provided with clear, comprehensive information regarding disease prognosis, the range of curative and palliative treatments and the outcomes associated with each. It may be the case that a broader definition of “ability” could be a better criterion, but I like the suggestion of my noble friend Lord Deben that we can use both words. I cannot see anything legally wrong with doing it. Let us not get hooked on the fact that we have had the word “capacity” for many years when we could possibly add the word “ability” and get the best of both worlds.

My Lords, I profoundly disagree with the argument just made by the noble Lord, Lord Blencathra. He suggested that using “ability” rather than “capacity” would end misunderstanding. I cannot agree that that is true because you would be creating an undefined and novel test and substituting that for one that has stood the test of time and is understood by the professionals who will be judged as to whether they have complied with the law when they act on that assessment. I was already committed to the view that we should keep the test that we have, but if I needed further assurance on that, the little interchange between the noble Baroness, Lady Jay, and the noble and learned Baroness, Lady Butler-Sloss, illustrated perfectly to me how one system, difficult though it is, has been used, examined and probed for many years and found to work—as against a new system, where the noble and learned Baroness, with all her experience, had not the slightest idea how that would work.

I think the key difference is that, when this Bill started, it was going to be judge-led. Now it is not and, as a consequence, we are talking about one of the most experienced judges we have ever known; so I think we are comparing apples and pears.

I cannot accept that. I am talking about the Bill that we have before us. The noble Lord, Lord Harper, asked: should we have a novel approach to this? My answer is no; it is safer to continue with the approach that we have.

I want to say one other thing to the Committee. I hope the Committee will accept that, given the experience that I have had here and the honour I had of being Lord Speaker, no one respects more the contribution that this House can make to improving legislation and the commitment that it should do its work properly. The noble Lord, Lord Harper, said that we were blessed in this House with many experts, and that their opinions should be listened to. The noble Lord, Lord Shinkwin, said that we should listen to the voices of those with lived experience. I am sad that the Select Committee did not do that, but I think that that is absolutely correct.

The one thing that we are not is what was said to me in 1974: “You have now been anointed by the popular vote”. I was then a Member of Parliament. It was a long time ago—in ancient times—but it was true. What has worried me slightly about the tone of this debate is that there has been a sense that this was a Private Member’s Bill introduced in the House of Lords, and that we were having the first go at any scrutiny of it. That is not true; it is not true at all. We do often get legislation from the other place that has not been scrutinised, but that is not true of this Bill. It has had much more scrutiny and I think we should have some respect for the fact that that has happened.

People say that we should not have an arbitrary timetable. Of course we do not want an arbitrary timetable. We have to do our job properly, but we should not be forced into a position where we are incapable of completing that job due to having an enormous number of amendments. We should concentrate on the important issues that we want the other place to take our views on seriously. I really think we are in danger of demeaning that process if we allow so much debate that we do not allow the other place to hear considered views on the important issues.

I have an enormous degree of respect for the noble Baroness, particularly given her position as a former Lord Speaker. I am a relatively new Member of your Lordships’ House, but I have interacted with it. I look around and there are a number of noble Lords here—such as the noble Lord, Lord Pannick—with whom I had a number of interactions on previous matters. So I am familiar with the different role of the two Houses, and I believe it is absolutely our job to get legislation right.

In the end, this is a Private Member’s Bill. It was not in the Government’s manifesto, so it has not been, to use the noble Baroness’s words, anointed by the popular will. This is our job. If in the end this House decides that this Bill is not fit for purpose and cannot be adequately put into law, it is our role to say to the House of Commons, “It isn’t good enough; we need to do this again”. It is our job to say to the Government that this is of such import that, as the noble Lord, Lord Tyrie, said, the Government should do their job and bring forward a better-drafted piece of legislation. That is our right, and we should reserve that right for later stages.

I follow the noble Lord’s argument, but he said that we should say, “We should do this again”. I think that if we reach that situation, the proper formulation is, “You should do this again”, and the other place could consider that. But the way we undertake that scrutiny should be responsible and reasonable and it should not deny the process of doing our job and putting those views and doing that—frankly, we have to be grown up about this and we have to behave responsibly about it.

My Lords, we have had an hour and three-quarters on this Amendment and perhaps we should move on.

My Lords, I shall be very brief. The definition at the beginning is a most important matter. I am quite clear, having heard noble Lords make a number of very sound observations, that “capacity” is an essential term. That is the first thing. However, it is not sufficient, and it has to be added to. I say that because the Mental Capacity Act states explicitly that a person is not treated as lacking capacity merely because they make an unwise decision. That is a very different situation from what we will be dealing with in many cases going forward. I urge the House, when this comes back on Report and preferably beforehand, and the promoters, to consider adding simply “and ability” so that it reads “capacity and ability” because they are different concepts, and they are necessary if this is to work properly in future.

I wish to respond briefly to two points. I have every admiration for the noble Baroness, Lady Hayman, and I definitely concur that we have a responsibility in this House. I also gently remind this House that there were a number of Members of the other place who said, both in writing to their constituents and in their spoken contributions in the House, that they were essentially outsourcing the job to this place for us to ensure legislation that is fit for purpose. I regret that that is the case. I think there are many of us on all sides of the debate, on both sides of this House, who would wish to see a government Bill, which has been the case with previous Private Members’ Bills that have been adopted by the Government. We would have more time and opportunity to ensure that we have robust legislation.

In the absence of that, in the process that we find before us, I want to share with the Committee—I was going to bring it up in the next group but in light of the comments and the contributions that we have heard so far I think it is important to share on record—the comments that we heard in the Select Committee from the Royal College of Psychiatrists. It is a professional body that was called to give evidence on behalf of its members as one of the pillars of the process, as one of the pillars of the panel.

We heard from Dr Annabel Price, who is the lead for the Royal College of Psychiatrists on the Bill. She is an eminent expert in this space. She shared with us that the college had very carefully thought through its position and its views and that it had asked for a review of the Mental Capacity Act’s suitability because it believes that the Bill currently states that a person is eligible if they have the capacity to make a decision to end their own life, but this framework has not been tested for this particular decision. There are principles within the Mental Capacity Act that the college is not certain are compatible with this decision and need to be thought through more carefully.

I think we should heed that warning and listen very carefully to that college whose members will be responsible should this legislation go through. Therefore, in the context of the Amendment moved by the noble Baroness, Lady Finlay, I think it is important for us to consider this in terms of how we inform our debate going forward, which is relevant to this group and to the group that follows.

My Lords, I speak briefly in support of the point made by the noble Baroness. I entirely understand why many Members of the Committee regard the suggestion to replace “capacity” with “ability” as wholly inadequate. The challenge that has been made by my noble friend Lord Markham and others is entirely fair enough, but the definition of “capacity” in the Bill itself is inadequate.

It is the case that the Mental Capacity Act was not designed for this purpose and that this legislation has been retrofitted to use the Mental Capacity Act because inadequate effort was put into defining the ability of an individual to make this decision in an appropriate way. It is the case that the Office of the Parliamentary Counsel has made it clear that the effort to put this Bill together was “done on a shoestring”. It is also clear, as the noble Baroness pointed out, that the Royal College of Psychiatrists—the people who are responsible for addressing mental capacity—said that assessing a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding than assessing capacity for treatment decisions, which is the purpose of the MCA.

We have been told by those responsible for the mental health of vulnerable people that the safeguard that we are about to legislate for is inadequate. More people will be placed at risk by its inadequacy. We may feel that the noble Baroness, Lady Finlay, in putting forward “ability”, is failing to meet the needs of the legislation. However, it is not her responsibility, but our collective responsibility, the promoter of the Bill’s responsibility and the Government’s responsibility to ensure that psychiatrists and this House can be satisfied that the threshold is sufficiently high.

We all recognise that, while this Bill may be about respecting personal autonomy, personal autonomy is not sovereign. We recognise that there may be circumstances in which that right cannot and should not be exercised. The promoters of the Bill have been very clear that they want to draw the lines narrowly to ensure that this is available only to people who are consciously capable at a time when their life will automatically end within a certain period.

Does the noble Lord agree with me that one of the issues, which has been sporadically mentioned, is the inconsistency of capacity or ability brought about by the interaction of certain drugs on an individual? They may be lucid at a particular point in time, but not lucid at another. Under our current proposals, the people who would be making that judgment do not even have to know or to have treated that person. Surely that has to be dealt with in any definition.

The noble Lord is absolutely right. Again, there has been some debate about the evidence from psychiatrists and the reasons why they expressed doubts, but that evidence is plentifully available to Members of this House.

As a number of Members have made clear, the work of Alex Ruck Keene KC and the Complex Life and Death Decisions group of King’s College, which is available to this House and was examined in the Select Committee, makes it clear that the Mental Capacity Act is inadequate. It is inadequate to deal with the concept of suicidal ideation that occurs. It is inadequate to deal with the fact that capacity fluctuates, and that fluctuation can be affected by mental health and well-being in its broadest sense, as well as by other syndromes and conditions.

The psychiatrists would not have intervened as they did if they had felt that this was a matter that could be left to one side, a matter that was entirely, as it were, within the scope of parliamentarians or legislators to shrug their shoulders and to accept. They have sent a message to us that the Bill as framed endangers those who are most vulnerable. Can we really proceed on the basis of the MCA, a piece of legislation conceived at a different time for a different purpose and rendered in the eyes of the professionals as not the correct way to go forward?

My Lords, I wish to comment on the previous statement made by the noble Lord, Lord Gove. I am a fellow of the Royal College of Psychiatrists, and I must have used the Mental Capacity Act dozens of times throughout my career. Capacity assessment, and how to do one, is included in very extensive codes of practice and in the training that people have. It includes ability in those things that have been mentioned. You need to know whether somebody has understood those elements that go to make up capacity to make a specific decision. It is a tried and tested piece of legislation. I will come back to it when we get to the amendments to Clause 3, but there is nothing in the capacity assessment that excludes making an appropriate judgment or having a really good understanding of the ability of the individual to grasp what is being proposed and all those things around it. It takes account of fluctuation—remember that this has to be a settled decision, and it takes account of that.

I did not want to say this, but noble Lords should understand that there has been internal politics inside the Royal College of Psychiatrists. There has been a serious shift towards against supporting this Bill, not since it came to the House but because of a change of personnel at the top of the Royal College of Psychiatrists. The individuals who made up the report that now comes to the House, both from the GLAD group and from, for example, Dr Annabel Price. She has a personal view that she does not like the principles of the Bill and would not support it.

Noble Lords:

Oh!

It is very important that we understand where these reports come from. This one is issued by the Royal College of Psychiatrists, but it has not been subjected to scrutiny by the members. Although they have many good points, and we can look carefully at their recommendations and assess them properly, we need to make a decision ourselves.

I am very grateful to the noble Baroness for giving way. I have a practical question to ask. Do other doctors get training on what is meant by “capacity”?

There is never enough training—let us assess that.

If I may help the noble Baroness, the answer is that the Oliver McGowan training—which is a statutory requirement for all doctors—is now in place. It is high-level training on both capacity and of dealing with people who are vulnerable.

My Lords, I have hesitated to intervene at this point because we are going to come later to talk about capacity and why the Mental Capacity Act and its definition does not fit well with this Bill. I am disappointed in the way in which the last few comments have turned this debate, not least because all of us belong to professional bodies which express collective views on our behalf and have to be respected. It is disappointing that we should have in this House an attack on a view which is expressed by a professional body in this way.

However, there are real reason as to why the Mental Capacity Act is seen as having deficiency in this context, which it normally does not have. It is a fine piece of legislation that we were very proud to introduce, and it has given liberty, capacity and the opportunity to be heard to many people who had limited capacity in the past. I give quarter to no one about the power of that Act.

But is the Mental Capacity Act perfect when we come to consider this particular issue? It is not. Why is it not? Because you can have and suffer from a mental illness and still have capacity. Yet we know that, when individuals are faced with the terrible diagnosis that they are to die, and their families are distraught, and they themselves have to face that reality, depression is not abnormal; it is normal. The fact is that some of those people, many of whom we know, some of whom are within our families, some of whom have suffered deeply, contemplate whether it would not be simpler, easier, less painful for everyone if they simply ended their lives. But what else do we know? We know that, when that depression bites, there is means of alleviation. We know that, with good palliative care, they can be enabled to make an informed decision. That informed decision may be that they still want to take a step, but the opportunity to get that support is essential.

Yet when we look at the capacity Act, the fact that someone is deeply depressed does not mean that they lack capacity within the meaning of the Act—

It does.

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—

My Lords—

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.

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.

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.

Would my noble and learned friend care to tell the House which other countries the committee took evidence from?

The difficulty we had was of course with time. We did not take a lot of evidence. The Committee will know that there was a request that we should take written evidence. It would have been possible for us to take written evidence from a number of jurisdictions, which could then have formed a body of evidence that could have been looked at. The decision was made by the committee that we should not take written evidence—so I think the committee was constrained in terms of what it could do and the timing. The committee tried to do its best. I hope that this House will not deny itself the opportunity of looking at evidence from other jurisdictions; we will all be able to talk about that in due course.

My Lords, I am grateful to my noble friend Lady Thornton for raising the question of other countries. Some of us here have sat on Select Committees on this subject over a large number of years; for example, I did so 20 years ago. I would not suggest that that evidence is necessarily completely relevant, but the fact is that we have taken evidence. We have not simply taken written evidence; we have been to countries where this has been in practice for many years. If, for example, noble Lords were to look at parts of the United States such as Oregon—one of the states that introduced assisted dying many years ago—they would see that the improvements in palliative care have been enormous and coincident with the application of assisted dying. It has never been the case, for those of us who support the Bill or support the general principle of assisted dying, that there is a choice between palliative care and assisted dying: both should be available.

I never suggested that they should be alternatives. The truth is that palliative care is not available in all parts of our country, so this has to be a real choice. That is the only element I made.

Also, I hope that all of us would look at the evidence, from wherever it came. We know that we have to make evidence-based decisions, and the best evidence will help us to make the best decisions.

My Lords, I want us to return to the Amendment and my contribution will be very brief.

The wonderful joy of the English language is that it is always evolving to meet circumstances that were never perceived before. That is why it will continue to be the language of the world. The word “capacity” is no longer just a psychiatric term to assess people’s mental ability; it now applies to whether a council has the capacity to do one thing or another. The word now is no longer a very narrow word. I am quite surprised when I hear people say that the word has been used for a very long time in the medical circle. But the word “capacity” is not in the rules of the Persians and Medes that can never be changed—words grow.

When we are dealing with a new situation of assisted dying, we need to look at whether the word “capacity” is adequate to deal with the new circumstances we are discussing in our Parliament. Is it adequate for a person who is facing the question of death and saying “I want to end my life now”? What does the word “capacity” mean to them?

The word “ability” would probably come much nearer to the understanding of an ordinary person wanting to make a decision about ending their life medically. Let us not treat the word “capacity” as such a holy word which cannot be changed. Let us not be lazy but work hard and consult a lot of other people in the field who know the most adequate word to describe this. I thank the mover of the amendment. Perhaps it could be put into a melting pot with some other words and out will pop a word that makes sense, and the whole House can rally around it.

My Lords, in debating ability and capacity, I will speak briefly as a member not only of the Delegated Powers Committee that considered the Bill but of the Select Committee that also did so. Noble Lords have heard differing views from members of the Select Committee about the various goings on that took place there, but I am sure we can all agree that we heard some very fine evidence.

All I wish to do in intervening here is to quote what Professor Alex Ruck Keene, whom my noble friend Lady Berridge referred to earlier, said about capacity and the role of psychiatrists, as it is extremely relevant to the debate on this Clause. He said:

“The point I am trying to make is that, if you simply say, ‘Apply the MCA. Apply the principle of the presumption of capacity. Support the person to have capacity to decide their own life’, I anticipate, if you asked very many psychiatrists, they would go, ‘How am I supposed to think about that?’ That is for a very specific reason. For psychiatrists, most of the time, their job is to secure life. Their job is suicide prevention”.

He concluded:

“We need to know—and one of my real concerns is—how this Bill sits in the wider landscape of the law. I need to be able to tell, because I am going to be one of the people writing the books here and giving the training. I need to be able to say, with absolute crystal clarity, to a psychiatrist, ‘This is the point where you are not in the suicide prevention zone, and if you do not do all steps necessary to try to secure this person’s life, you could be prosecuted or you could be charged in various different ways or be civilly liable’. I need to be able to say, with crystal clarity, ‘You’re no longer in that zone; you’re now in the zone of the Terminally Ill Adults (End of Life) Bill’”.

I quote the professor simply to draw to the Committee’s attention once again the complexity of the issues before us. Although “ability” may be flawed and legally powerless, as the noble Lord, Lord Pannick, suggested, “capacity” is deeply problematic in the context of the Bill.

My Lords, there is probably one thing we can all agree on today: everyone’s frustration with the process of evidence giving. I was hugely frustrated when the committee in Another place was looking for evidence but deaf and disabled people’s organisations were not able to give evidence, despite making up 25% of the population.

I hope that I speak on behalf of the whole House when I say how sad it is that my noble friend Lady Campbell of Surbiton is not able to be in her place. She has experience in politics and in the House of Lords of extensively debating capacity, on what became the Domestic Abuse Act and in previous debates on assisted dying. I would urge anyone who has time to look at her contributions on capacity.

My noble friend is an individual who, I am afraid to say, in her 66 years, has been deemed terminal more times, probably, than most of us in the Chamber combined. She has had her capacity challenged probably an equal number of times. I remember a few years ago, when I had not long been in your Lordships’ House, when my noble friend was in hospital and several of us had phone calls to say that we needed to get to the hospital right away because they were challenging her capacity. Her husband was told that she was not able to make decisions on her care because she was delusional. Why was she delusional? Because she had told the doctors that she was a Member of the House of Lords. The response was, “She can’t be in the House of Lords—she’s disabled”. I cannot remember whether her husband got away with taking her pass in; there was talk about having to take her seal in to prove that she was in the House of Lords. But this highlights some of the issues with mental capacity assessment.

I have had personal experience of it. When my father was ill and the doctors found out I had lasting power of attorney, I was taken to one side to argue that he should have a different set of treatment. He had the capacity and ability to decide what he wanted. In this case, he had to have his leg amputated, and he was told that, as a wheelchair user, he would have no quality of life—they said that to me. If there was one thing I could do for my father, I could get him a wheelchair.

More recently, I have had an experience with my husband. At the end of 2020, he had a blood clot on the brain stem—he had a stroke, and he was blue-lighted to hospital. It was a dreadful experience. My daughter was in her first year at university and had to be called home. We did not think he was going to make it, and we were not allowed into the hospital. I was frequently told by the medics that he had no capacity to make a decision on his treatment. My husband said, “Look at the notes”; I said, “Look at the notes”. What they were arguing over in terms of his capacity was his ability to walk. Looking at the notes was really important, because his lack of ability to walk was nothing to do with the fact that he had a stroke; it was due to the fact that he had had a spinal cord injury in 1984 when he crashed his pedal bike into the back of a double-decker bus.

I understand what the Chamber is saying. I have personal experience where I think the Mental Capacity Act has been used in the wrong way. We have to find a way of making it work so we are able to take care of capacity. Like others, I am not entirely sure that “ability” is the right word. I understand what I mean by “ability”; I have amendments later on around the ability to understand decisions. I have one on British Sign Language because of the case of a deaf man who was told by a nurse who could only fingerspell that he had HIV when he did not—he thought for two days that he had HIV—and I have another Amendment around people with learning disabilities. So maybe “ability” is not the right word.

My noble friend Lord Pannick talks about legal definitions, and I also have a number of very minor amendments which look at a better legal definition of disabled people. Perhaps we can take this away, work on it and do something. As the noble and learned Baroness, Lady Scotland, said, we have to make it work. We have to look at the Mental Capacity Act through the prism of the Bill, not in terms of what it was designed to do.

The importance of the Amendment in the name of the noble Baroness, Lady Finlay of Llandaff, is that, as has already been well described, there are genuine concerns about the appropriateness of the Mental Capacity Act 2005 as it stands. I think also that there has been more interest at this point because, so far, it has not been deemed to be in scope to put an amendment down to amend the Mental Capacity Act 2005—although I noticed that my noble friend Lord Goodman managed to get something in, so I congratulate him on that. That is why it is taking more time to consider aspects of this. I hear a noise—I thought it might have been someone shouting “Order!”, but perhaps it was excitement elsewhere.

I am just conscious that it is without doubt that, in the consideration in the Commons, Professor Sir Chris Whitty—who used to be one of my Permanent Secretaries when I was at the Department of Health and Social Care—suggested that the Mental Capacity Act had a higher test for basically a life or death decision, and then of course changed that evidence. However, I accept that he said, in evidence given orally to the Select Committee in this House, that having something that people are used to using is important. So one of the things that we need to judge is recognising the role of the Royal College of Psychiatrists—admittedly, it is not the Chief Medical Officer—and take its words seriously.

I was somewhat shocked by the words of the noble Baroness, Lady Murphy. I do not know if she ever used the Mental Capacity Act in her time as a professional. I know she is experienced in this in terms of psychiatry, but I was pretty horrified by the words she just used in this Chamber about the witness.

It is certainly clear that she used that test continuously as part of her career, actually. While I am on my feet, I wonder whether the noble Baroness thought of reviewing the Mental Capacity Act while she was Secretary of State for Health. Was that something she considered then? That piece of legislation has certainly stood the test of time.

I will respond to that. I do not know the answer about the noble Baroness, Lady Murphy. However, I say to the Committee and to the noble Lord, Lord Bassam, that amendments have been made to the Mental Capacity Act 2005 that have not been enacted by this Government. Therefore, we are not even sure exactly which version of the Mental Capacity Act we will be dealing with in the future. The noble Lord, Lord Bassam, is babbling away, but this happened. Amendments were made in 2023. That was on slightly different matter, but it is something I will come to in Clause 3.

I come back to the attack on Dr Price. Perhaps the noble Baroness could be brave. She has used parliamentary privilege to do that. If she really believed it, she might say those words outside the Chamber and see if she gets a legal letter. I thought it was really poor to attack somebody who had been invited and to try to suggest that, somehow, for such a distinguished royal college, she was manipulating a particular report. That was unfair.

I will make one minor observation about the Select Committee. In my view, it was noticeable how distressed Dr Price started to become during that oral evidence session. I am not a clinician or a psychiatrist; frankly, I am just another woman who could see how distressed she started to become. I also spoke to her outside afterwards. We have to bear in mind that we are used to this bear pit—which is much gentler at this end than at the other end—but that is not true of the others.

I will come back to the discussion and one of the questions I wanted to understand when going through ability versus capacity. We have already heard that things such as depression and mental illness are not a disabler. We already know that having dementia is not a reason to be denied, certainly in the Mental Capacity Act 2005. We know that capacity can fluctuate, and I certainly will not repeat what others have said.

What I have not yet understood is how things such as the power of attorney might work, which can be given over for health reasons. I want to get an understanding of the view of the sponsor and the Government Minister about the application of this, before potentially laying further amendments to discuss this.

We know that the Government do not believe that the Bill is in a fit state. They would not have 16 people working on it and the amount of work that has been going on if they did. By the way, that does not include the Government Legal Department in any way.

I thank the noble Baroness for having introduced this, but there is still quite a lot of debate to be had once we get to Clause 3, if we are allowed to see that it is in scope.

In case I am not understanding it and it would be helpful for the Minister, is the question my noble friend wants the Minister to answer on lasting of powers of attorney whether it the Government’s understanding that somebody in possession of a lasting power of attorney for health and social care would be able to use that lasting power of attorney to seek an assisted suicide for the person on behalf of whom they hold the lasting power? Is that the question she is asking? I was not entirely certain.

My noble friend has put it more accurately—that is precisely the question I am trying to understand. I am trying to be a legislator rather than somebody who argues in court, but the very fact that somebody can make health decisions on behalf of somebody else is important to consider in this matter, and I am not clear that it is explicit in the Bill—yet—that that power of attorney could not apply. We know that the Mental Capacity Act 2005 does not apply to Section 2 of the Suicide Act 1961. I will not go into a history lesson about the Suicide Act at Clause 1, but at the moment everything seems silent on the use of that lasting power of attorney.

My Lords, this is the first Amendment to be introduced by the noble Baroness, Lady Finlay of Llandaff. We all acknowledge her extensive experience and deep knowledge of this issue, as both a doctor and a professor of palliative medicine. Like my noble friend Lord Shinkwin, I expect noble Lords across the House to benefit from the noble Baroness’s advice and guidance as we seek to improve this Bill through Committee.

I have listened carefully to the debate and it seems that there are two related but conceptually separate issues going on. One is a valuable, perhaps somewhat philosophical, debate about the difference between “can” and “able to”; in other words, just because you can take a decision, does it always mean that you are able to take a decision? It is an interesting debate to have.

There is a separate but related issue about how one reflects that or the conclusion one comes to in law. That is really the issue raised by the amendments to Clause 3 in the next group. As both the noble Lord, Lord Pannick, and the noble Baroness, Lady Hollins, pointed out—and as set out in the explanatory note for this amendment—Amendment 2 is linked to Amendment 115 from the noble Baroness, Lady Finlay, which seeks to replace Clause 3 with a new clause. To that extent, the debate we have just had is an hors d’oeuvre before the main course of group 3. Perhaps this is a restaurant that serves its hors d’oeuvres in larger portions than normal.

For reasons that I hope are obvious—I mean no discourtesy to the Committee—I may not be able to stay until the end of group 3, so I hope to take a quick moment now to explain this interrelationship. The proposed new Clause 3 is a considered amendment that challenges the Bill’s reliance on the definition of “capacity” under the Mental Capacity Act. It seeks to make special provision in the Bill for how the definition of lack of capacity is to be dealt with, and it touches on important information and the ability to make decisions. In particular, it builds in information relating to palliative care. I look forward to the Minister’s response to this group and I will read her response to the group of amendments on Clause 3, in due course, and the noble and learned Lord the sponsor’s response to both groups. Although we will debate these two groups separately, they seem to me to be intimately connected.

With some trepidation, I will respond to the point made by the noble Baroness, Lady Hayman. I am conscious of her experience in both this and the other House, which considerably exceeds mine on both counts. However, I touched on this point at Second Reading and, respectfully and certainly from my analysis, there does not appear to be any constitutional reason why this House should not take its time considering the Bill or even, should it wish to, reject it as a non-manifesto Bill that is also a Private Member’s Bill.

For noble Lords who are interested, there are some useful articles on this point from Professor Mark Elliott, who is a professor of public law at the University of Cambridge. I refer to him because of two important features. First, he is a professor of public law at the University of Cambridge. Secondly, when I was a Minister, he did not agree with me on anything so, if we agree on this, it is likely that we are actually right.

In all seriousness, the noble Baroness, Lady Berger, made a point that I made at Second Reading, which is particularly important in the context of this Bill. A number of Members of Parliament said, both in and outside the Chamber, that they voted for the Bill on the express basis that they relied on this House to give it proper scrutiny. If the noble Baroness wants to intervene, of course I will give way.

I obviously did not express myself very clearly. I was not in any way suggesting that this was a government Bill to which the conventions applied or that there was any reason why we should not properly scrutinise it; I absolutely stand by that, and I do not think that there is any bar to us doing that. What I was suggesting to the Committee, respectfully, is that it should take very seriously the fact that this Bill has been considered and approved by the other place; and that, therefore, in the conduct of our proceedings, we should make sure that we do things in a considered and responsible way. To speak completely personally, I think that this House should be able to vote on amendments—obviously, it has the right to vote at Third Reading—but we should reach decisions on this Bill in an appropriate timeframe. It would not be satisfactory to anyone if this were simply extended and extended so that we never actually reached a view.

My Lords, I am very grateful to the noble Baroness for intervening. If there is a difference between us, it may be one of emphasis and not substance, because, respectfully, I do not disagree with anything she just said. As I said in my opening remarks, the Official Opposition’s position from the front bench is that we want this House to be able to do proper scrutiny.

In making that last point, does the noble Lord accept that, in essence, we need to be given more days in Committee so that we can go through this Bill in detail but do so in the way that the noble Baroness suggested? The issue is that, at the moment, there is an assumption that we are going to get only four days in Committee; frankly, that is not enough for such a complex Bill.

My Lords, I am grateful for that point from the noble Lord.

I do not want to bring my own personal circumstances into it, but the plain fact of the matter is that I will not be able to participate in the next group because, for obvious reasons, I have to leave. I am a practising barrister. I set aside time to contribute—usefully, I hope—to the work of this House, but there are other pressures on time. If this were a government Bill, we all know how government Bills work. This is well beyond my unpaid pay grade, but it seems to me that we are perhaps trying to pour a quart into a pint pot by doing this Bill as a Private Member’s Bill; as I say, though, that is way beyond my pay grade.

I will sit down in a moment but, because of the exchange we have just had, I want to place on the record the fact that I will not be here for the next group. Having said on this group that the two groups are interrelated, I hope that that will not be a discourtesy to the Committee—certainly not to the noble and learned Lord, Lord Falconer, who is the sponsor of the Bill.

My Lords, as it is nearly 2.30 pm, it might be helpful to the Committee to know that, when my noble friend Lady Merron has responded for the Government front bench and my noble and learned friend Lord Falconer has responded, I intend to invite the House to resume; that will bring today’s debate to a close. That is my intention but, obviously, it is a matter for the Committee to decide what it wants to do.

Can the noble Lord give some guidance on the issue of timing? As has just been indicated, if it were not obvious before this morning, it is now perfectly obvious that four days is not going to be enough for the Committee stage of this Bill. There is unanimity that this is an exceptionally important Bill and that this House has to carry out its constitutional function of scrutinising it. It would be enormously damaging to the reputation of this House if, because of timing, we were unable to do that task. Will the Government make government time available?

I thank the noble Lord for that point. As I said at the start, the Government remain neutral and will not be providing government time for this Bill. Obviously, we will look at things when we get to the end of our four days in Committee. I will then work with the usual channels to see what other time can be made available from non-government time, but we will have to see whether we will move on over the next few days.

I say to the Minister that we are talking about four days. The general public know that a sitting Friday lasts from 10 am to 3 pm. People have made arrangements accordingly, and there are reasons of faith and things such as that which require that we respect that ending at 3 pm. On a normal day, the House would sit for up to 10 or 12 hours, so four days is just not enough.

I do not think I can add much more to what I have already said. We are debating the Bill. The House will adjourn fairly shortly, and I will have a discussion in the usual channels. There is no government time that can be made available for the Bill.

Is it not time that the Government look to give some government time to the Bill? As has already been said, this is one of the most important Bills ever to come before this House. For the Government not to give us government time, as the noble Baroness, Lady O’Loan, has just said, is unfair to the Bill.

All I can do is repeat myself: this is a Private Member’s Bill, and the Government do not have any government time to give it at the moment.

It might be convenient to concur with what the Government Chief Whip has just said. We could finish in the normal run of things if there were fewer interventions and perhaps if the Front Benches could be allowed to sum up.

Since I was standing, I will be very brief. I support what the Chief Whip said. I agree with what the noble Baroness, Lady Hayman, said earlier. I agree with the Government Chief Whip about not giving government time, but we need more time to deal with this as a Private Member’s Bill. I do not think that any reasonable person listening to the debate and the expertise contributed from these Benches could have concluded anything other than that this was a debate that reflected well on the House and that we are doing our job seriously and conscientiously. We need to continue to do that. That is all I would say to the Chief Whip.

As a final point, I agree with the noble Lord. As Government Chief Whip, I take my job very seriously. I love the House, and I want to do this properly. I assure the Committee that I hear noble Lords’ sentiments. I know how long it has taken on the Bill. I know that views are sincerely held on both sides. I will work in the usual channels to deal with these matters.

My Lords, I am grateful for the insightful contributions that have been made to this debate. I will be very concise on the point. In summary, it is our view that workability concerns are less significant, although the Government are unable to confirm at this stage that the current drafting is fully workable, effective or enforceable. As noble Lords will understand, the Amendment has not had technical drafting support from officials.

On this point, if the amendment is passed in isolation, it is likely to have minimal legal effect, as Clause 1 is essentially declaratory rather than operative. The remainder of the Bill would refer to the capacity to make a decision, which, as noble Lords will be aware from the Bill, is to be read in accordance with the Mental Capacity Act 2005.

I anticipate coming later to discussions on amendments to Clause 3, as noble Lords have referred to, as those amendments would change the operation of the Bill. I will comment on proposals when we come to the relevant debate. These issues are, of course, rightly a matter for noble Lords to consider, deciding which test is to be used.

I will deal first with the central issue in this debate, which is the Amendment from the noble Baroness, Lady Finlay. The wording currently mentions:

“A terminally ill person in England or Wales who … has the capacity to make a decision”.

The noble Baroness proposes that “capacity” should be changed to “ability”. From what the noble Lord, Lord Wolfson, says, I understand that we should read that with Amendment 115, although there is another amendment that the noble Baroness proposes in relation to Clause 3. But I accept what the noble Lord says in relation to Amendment 2.

With the greatest respect to the noble Baroness, Lady Finlay, she is suggesting that we remove “capacity” and replace it with “ability”. The noble Lord, Lord Sandhurst, put his finger on it when he said that “capacity” is well known to the law. You could not possibly have a Bill that did not refer to capacity because what it means, in the eyes of the law and of people in practice, is the ability to make the decision. As the noble Lord, Lord Blencathra, said, if you do not have capacity, you cannot make the decision. That applies right across the doings of human beings, and the law recognises that. If, therefore, you replace “capacity”—

On a point of clarification, I thought that the idea of adding both words was very helpful, but when the noble and learned Lord says that you cannot make the decision without capacity, it is not any decision but this particular decision in this Bill. Can he reflect on a point that was made very well by one of his noble friends on something that happened in my family as well? Somebody with dementia was said to have capacity for a particular decision, but I would not have wanted my mother to have been trusted as having the capacity to decide whether to ask for assisted death.

The Mental Capacity Act is fantastically important, but is it appropriate for this decision—not any old decision but this decision—which is a bit more challenging than some of the decisions that the Mental Capacity Act is used to decide on?

That is very well put and is exactly the question. Is it appropriate to bring the Mental Capacity Act into this Bill? I understand that whether you have an assisted death is an incredibly important decision. You cannot remove the word “capacity”, so you have to reject the Amendment from the noble Baroness, Lady Finlay.

Her Amendment 115 effectively draws on how the Mental Capacity Act 2005 is currently drafted, except it adds two things. It removes the presumption of capacity and, separately, it requires the person making the decision to be aware of a variety of things that are connected with their illness. To summarise, the way the Mental Capacity Act operates at the moment is that if you are unable to understand information relevant to the decision, to retain that information, to use and weigh that information or to communicate your decision, you do not have capacity under the current Mental Capacity Act. The extent to which the things that the noble Baroness, Lady Finlay, has referred to in her amendment would be relevant would have to be weighed in the context of the decision that has to be made.

I am more than happy to debate whether we need to make the changes to the Mental Capacity Act that she is suggesting. For my part, I do not think we do. One thing that is absolutely clear is that the amendment proposed, as the noble Lord, Lord Sandhurst, identified, is completely ridiculous. You cannot remove the question of capacity from this choice. Putting aside some detail hurdles, there are two hurdles that need to be overcome in how this Bill is constructed. You have to be capable of making the decision, as the noble Lord, Lord Wolfson, said, and—completely separately—you have to make that decision completely voluntarily. It has to be your own decision, not the product of pressure.

We have had—and I say this with warmth and respect—a rambling debate going over a whole range of issues, miles away from the question of whether one should remove the word “capacity” and put in the word “ability”. If this House wants to make the law completely confused in this area, either put in the word “ability” or put in “capacity and ability”. I echo the speech of the noble Baroness, Lady Hayman, when she says we have to approach this in a grown-up manner, and to remove the word “capacity” is not a sensible way to deal with this.

I also echo those who have said that the idea of running two systems at the same time—the Mental Capacity Act system and the separate system proposed by the noble Baroness, Lady Finlay—is wrong and confusing. I congratulate the noble Baroness, Lady Fox, for spotting what the right decision is. Of course, under the Mental Capacity Act some unimportant decisions are taken, but a decision such as whether to have the ventilation removed from you if you have motor neurone disease, that will almost certainly lead to your death, is without a shimmer of a Shadow of doubt a life and death decision.

The Chief Medical Officer of England and Wales, in evidence to the Lords Select Committee, said:

“it is far better to use systems that people are used to and that are tested both in practice and, where necessary, in law”.

He went on to say:

“I have a concern that you could have a conversation in one bed in a hospital where someone is talking about, for example, an operation where they might well lose their life, because they are frail and there is the operative risk, done under the Mental Capacity Act, and, in the next-door bed, someone is trying to do the same process of having a difficult conversation about someone who might die, or could definitely die, as a result of that decision, but using a different legal framework. The risks that that could lead to confusion are not trivial”.

I also echo what the noble Baroness, Lady Browning, who sadly is not in her place, said. There are problems about practically every aspect of how various parts of the health service work, but she was part of a process that considered how the Mental Capacity Act worked. The broad conclusion was that it was a good, workable Act, and we should not stray from it in this particular case. I invite the noble Baroness to withdraw her amendment.

Before the noble and learned Lord sits down, may I just make it absolutely plain that I said that capacity was necessary but not sufficient. I am not stuck with whether it should be “and ability”, but I was absolutely plain in my very short speech that capacity was necessary but not sufficient.

I was picking up on the word necessary. What the noble Baroness, Lady Finlay, is suggesting is that we remove the word “capacity”. I do not know if I misunderstood the noble Lord, but that is what I thought he was saying.

I wanted to make it plain because some people listening to the noble and learned Lord might have thought I had not said that.

Before the noble and learned Lord finishes, can he clarify for the Committee that a person who can grasp only a diluted amount of information, or who cannot retain the information in any real sense that would be intelligible to us, can be deemed to have capacity for the purposes of the Mental Capacity Act, but for this Bill, which is designed to give people agency and allow an individual as much choice as possible to choose treatment or have agency over medical and palliative care decisions and so on, an entirely different threshold should, quite rightly, be expected for such a serious measure as this?

I respect the noble Baroness for repeating her speech. Section 3 of the Mental Capacity Act says that if a person is unable to

“understand the information relevant to the decision … to retain that information … to use or weigh that information ... or … to communicate his decision”,

then they do not have capacity. I am content that that should be the approach under the Bill.

I want very briefly to put on record that Professor Sir Chris Whitty is not the Chief Medical Officer for England and Wales, but for England only. I will wait for another time for the answer to the question I asked about power of attorney to be given, ideally by the Minister.

I will answer that one. No, you cannot do it by power of attorney. You have to do it yourself.

My Lords, given this very long debate, I will try to respond briefly. I declare that I had the privilege of being the first chair of the National Mental Capacity Forum, which was set up following the post-legislative scrutiny of the Mental Capacity Act precisely because of the problems with its implementation. I worked in that role all through Covid. As the noble Baroness, Lady Browning, said, unfortunately, although it is a fantastically good piece of legislation, its implementation depends on the person who is implementing it. Although there has been training, and we worked very hard to get training in, it has unfortunately not always improved things as much as one might hope.

The other thing I draw to your Lordships’ attention is Section 62 of the Mental Capacity Act, which concerns the scope of the Act. It says:

“For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide)”.

It was with that background that I became concerned that the quality of the information the person has depends on the knowledge of the person giving that information, as well as the ability of the person to retain it. I spoke about choice at the beginning of my speech. I am sorry that the noble Baroness, Lady Thornton, is not in her place, because choice is essential if we are giving patients opportunities to make decisions, but we have to have real choices. That is why I spoke about the black holes where there is no adequately provided palliative care.

Unfortunately, although the Bill has had a money resolution—forgive me if that is the wrong phrase, but there has been a commitment to fund the provision of a service if the Bill becomes an Act—it has not been matched by concurrent funding in the long term for specialist palliative care. That is a concern, but we will come back to it later.

There is another very small point that I want to make: can we please avoid using the term “commit suicide”? It is not a crime to take your own life, and “commit” is a deeply offensive term. We are talking about people who, for whatever reason, decide to take their own lives and end their lives early. We should remember that as we go forward in our debates, out of respect for everybody who has been bereaved by the tragedy of suicide or attempted suicide.

When it comes to life and death decisions, though, I suggest to the Committee that it is fundamentally different to have the decision of accepting that your disease process is going on, that your dying is inevitable and that you wish to withdraw your dialysis or ventilation. Those are decisions in which I have been involved with patients for decades. We can now take people off ventilators very gently and calmly without any of the distress that was previously associated with that, and they die of their underlying disease.

What we are talking about is suicide prevention versus suicide assistance and the point at which you decide, as a clinician with a patient in front of you, whether you are going to be working with suicide prevention, improving quality of life, or whether you are going to stop that because you are going down a different route, and some of the evidence we had was to that effect. However, because of time and the way that things have gone on, I beg leave to withdraw my Amendment.

Amendment 2 withdrawn.

House resumed.

House adjourned at 2.51 pm.