Lords Bar VSED Route, Retain MCA Capacity Test

High-Level Summary

The House of Lords sat in Committee on the Terminally Ill Adults (End of Life) Bill. Peers first continued scrutiny of the Clause 2 definition of “terminal illness”, debating prognostic uncertainty, proposals to limit scope (including a regulated list of conditions), and safeguards around eating disorders, voluntary stopping of eating and drinking (VSED), and refusal of treatment. The Committee then turned to Clause 3 on capacity, discussing whether to replace or tighten the Mental Capacity Act (MCA) test for this irreversible decision. Peers agreed an amendment (as further amended) to exclude eligibility created by not eating or drinking (including where done voluntarily), agreed Clause 2 as amended, and later agreed Clause 3. Proposals for extra, care‑home‑specific capacity safeguards were aired but not made, and the Committee adjourned slightly earlier than planned after a short procedural exchange.

Detailed Summary

Arrangement of Business – announcement

Lord Kennedy of Southwark outlined the day’s timetable and conduct, confirming a target adjournment time and a lunch break, and that only those present at the start of last week’s resumed group could speak: “I will seek to adjourn the Committee at around 6 pm”; “any noble Lord who was here at the start of that debate last week can participate, but no one else”. He urged “Courtesy, kindness and respect” in debate.

Clause 2: Definition of terminal illness – resumed debate (Amendments 71 etc.)

Peers tested the robustness of the six‑month prognosis and the definition’s scope. Baroness O’Loan cited clinical uncertainty: “There are no valid tools, tests, or clinical examinations that can reliably and safely identify that a person is expected to die within six months”, and raised concerns about impacts on disabled people. Lord Moylan proposed constraining future scope via regulation: “there should be a list of what constitutes terminal illness” to limit “creep”. Baroness Coffey highlighted conditions controlled by treatment, such as insulin‑dependent diabetes: “anybody who decides not to take their insulin, for whatever reason, would automatically have an irreversible disease and they will die”.

Other contributors emphasised autonomy within safeguards. Lord Young of Norwood Green said the Bill is “about ensuring that people have a right to choose” and described its multi‑stage checks as “a very cautious step forward”. Baroness Merron corrected a drafting error in the national cancer plan timetable: “the interim update will be published this spring and the full modern service framework will follow in the autumn”, and outlined workability/ECHR risks where amendments excluded conditions or groups. Lord Falconer, the sponsor, clarified that “frailty” is not within scope and reiterated the two‑limb test—an “inevitably progressive illness or disease which cannot be reversed by treatment”, with death reasonably expected within six months. Citing the Chief Medical Officer, he said six months is a “reasonable” period: “At six months, it is generally very predictable that someone is going to die in the foreseeable future”. Outcome: Amendment 71 was withdrawn and related amendments were not moved; the core definition remained for the subsequent amendments in the group.

Amendments 87/87A – excluding eligibility arising from not eating or drinking (including voluntary cessation)

Lord Falconer moved Amendment 87 to protect against eligibility created by illnesses caused by not eating or drinking due to a mental disorder, focusing on anorexia: to “ensure that persons with anorexia cannot, by not eating, put themselves into a position in which they qualify for an assisted death”. Baroness Keeley, on behalf of the noble and learned Baroness, Lady Scotland, moved Amendment 87A to retain explicit protection against VSED by inserting “either voluntarily or”, citing an Oregon case: “Within five days, her doctor concluded that she was terminally ill due to dehydration”. Baroness Hollins warned that evidence from US jurisdictions “identified at least 60 individuals with eating disorders who died by assisted death”.

Baroness Merron noted that wider exclusions risked workability and ECHR issues. Lord Falconer accepted Amendment 87A and said he would consider related edge‑cases (such as type 1 diabetes with eating disorders), while resisting exclusions relating to routine withdrawal of medication or devices. Outcome: “Amendment 87A (to Amendment 87) agreed.” and “Amendment 87, as amended, agreed.” Consequential amendments were not moved and “Clause 2, as amended, agreed”. Next steps: the sponsor will consider whether further drafting on other eating disorders is required for Report.

Clause 3: Capacity – whether to adapt the Mental Capacity Act (MCA) for assisted dying decisions

Baroness Berger introduced Amendments 107–109 to tighten the MCA test for an irreversible decision, including disapplying MCA section 3(3)’s short‑term retention rule: “the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent them from being regarded as able to make the decision”. She argued: “Deciding to die is not like deciding to marry or to consent to surgery”. Lord Falconer indicated he will bring forward “explicit extra protections” at Report for applicants currently or recently subject to deprivation of liberty, potentially including a compulsory psychiatric examination.

Alternative frameworks were proposed. Baroness Finlay’s Amendment 115 sought a bespoke test, citing ECHR duties to “prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved”. Baroness Hollins advocated a psychologist‑led, evidence‑based framework and noted that “Assessing capacity is also inherently subjective and vulnerable to bias”. Baroness Merron cautioned that undefined terms and differential treatment could create workability and ECHR risks. Lord Falconer resisted replacing the MCA, saying proposed differences were “very slight” and that two parallel capacity tests across healthcare would be confusing. He also pointed to multiple capacity checks by two doctors, the panel, at the second declaration, and at provision of the substance. In response to a question about disabled people’s safety, he stated: “The noble Baroness can tell them that they will be safe”. Outcome: Amendments 107–110 were withdrawn/not moved and “Clause 3 agreed”. Next steps: targeted extra protections for deprivation‑of‑liberty cases to be tabled for Report.

Capacity assessments for care home residents – proposals for extra safeguards

Lord Blencathra (Amendment 110A) and Baroness Eaton (Amendments 111–112, moved by Baroness O’Loan) proposed higher evidential standards for residents of registered care/nursing homes, including specialist geriatric and psychiatric reviews to rule out reversible causes of impaired capacity (e.g., delirium, infection, dehydration, medication effects). Baroness O’Loan pointed to fluctuating capacity and undiagnosed dementia, and argued assessments should be face‑to‑face: “Across studies, 68% to 89% of serious decisions made on a bad day are entirely forgotten or disowned once the person recovers”.

Baroness Merron warned that imposing special processes only for care‑home residents could conflict with the MCA’s decision‑specific approach and engage ECHR equality risks unless justified: such changes “could create inconsistency with the MCA’s presumption of capacity and the principle of proportionate, decision‑specific assessments”. Lord Falconer noted the Bill already requires successive capacity checks by two doctors, the panel, at the second declaration, and at provision of the substance. Outcome: Amendment 110A was withdrawn and related amendments were not moved. Proponents indicated the issue may return at Report (not stated in the transcript).

Procedural points and adjournment

Early in the day, rules for the resumed group were enforced: “The noble Lord is not down as having been present at the beginning of the debate last week”; “Order. The noble Lord is not on the list”. At day’s end, the House resumed slightly early. Lord Harper observed “we are finishing slightly early” and raised publication of speakers’ lists for adjourned groups and potential flexibility for Members with travel constraints. The Chief Whip responded: “I shall refer the noble Lord’s comments to the usual channels”.