Terminally Ill Adults (End of Life) Bill

Committee (4th Day)

Clause 1: Assisted dying

Amendment 16

16: Clause 1, page 1, line 10, at end insert— “(ca) has not, for at least 12 months ending with the date of the first declaration, been deprived of their liberty under section 4A (restriction on deprivation of liberty) or 4B (deprivation of liberty necessary for life-sustaining treatment etc) of the Mental Capacity Act 2005, and”Member’s explanatory statement This amendment would ensure that someone who so lacks capacity in one area as to be currently or recently deprived of liberty will not be found to have capacity for the decision to seek assistance to end their own life, which is otherwise a legal possibility under the Mental Capacity Act 2005’s approach to capacity.

My Lords, Amendments 16 and 114 propose that anyone who is currently, or was in the year preceding their first declaration, deprived of liberty under the Mental Capacity Act will be considered to lack capacity for the decision to seek an assisted death. Amendments 16A and 114A extend this to those on whom an application has been made but not necessarily completed. Given the data, there is good reason why these amendments from the noble Baroness, Lady Keeley, should be considered.

Section 4 of the Mental Capacity Act 2005 requires that decisions made on behalf of individuals who lack capacity are made in their best interests and with the least restriction of freedom. This amendment can only probe the eligibility assessment process because we are at a transition point from the overloaded deprivation of liberty safeguards system possibly to liberty protection safeguards. Implementation of the 2019 Mental Capacity (Amendment) Act, with the concomitant refresh of the MCA code to incorporate liberty protection safeguards guidance, is planned for early next year, but no firm date has been set.

Deprivation of liberty safeguards authorise arrangements that restrict liberty in hospitals and care homes for those aged 18 or over when necessary for care and safety in their best interest and there is no other way to look after them. A standard authorisation under Section 4A can be given by a local authority, valid for up to one year, to a hospital or care home after a series of six assessments within a 21-day period. Section 4B allows for an urgent, seven-day deprivation of liberty, renewable once, to sustain life or for vital acts pending a Court of Protection decision or while the standard process is under way.

Urgent DoLS applications arise from acute crises. In 2023-24, 58% of applications were urgent. Temporary incapacity in acute hospital settings is often due to acute delirium in cardiovascular events, infection or medication effects. Of course, when a person improved and regained capacity, the DoLS became inapplicable.

16A: In paragraph (ca), leave out “been” and insert “had an application to be” Member’s explanatory statement This amendment would ensure that someone who so lacks capacity in one area that an application has been made to deprive them of their liberty will not be found to have capacity for the decision to seek assistance to end their own life, which is otherwise a legal possibility under the Mental Capacity Act 2005’s approach to capacity.

My Lords, Amendments 16A and 114A, which were tabled by the noble Baroness, Lady Keeley, address the fact that for the last 10 years there has been a substantial backlog of applications for deprivation of liberty safeguards assessments. This backlog grew after there was a Supreme Court ruling in 2014 on Cheshire West. Following that ruling in 2014, the criteria for what constituted a deprivation of liberty assessment led to a surge in applications for DoLS assessments. Back in 2013-14, there were around 13,000 assessments. This grew to over 332,000 applications in 2023-24.

The last reported backlog of deprivation of liberty safeguards assessments back in October of this year was more than 123,000 applications. That is more than 123,000 cases where a person so lacks capacity in one area that an application for a deprivation of liberty safeguards assessment has been made, but our overstretched social workers and local authorities have not been able to process it.

I hope we can all agree that people whose incapacity to make basic decisions is so severe that they are deprived of their liberty, or for whom an application has been made for the deprivation of their liberty, are the most vulnerable members of society, and that the protection of people who lack capacity is a solemn duty. The state looks after their interests because they cannot.

Amendments 16, 16A, 114 and 114A provide a fundamental safeguard to protect this group by excluding them from making a life-and-death decision, both when they have been deprived of their liberty in the last 12 months or—as these amendments particularly seek to achieve—while they are waiting for the assessment to be made to deprive them of their liberty.

In conclusion, while considering these amendments, and in addition to addressing the delays outlined by the noble Baroness, Lady Finlay, we might also reflect that our current social care workforce has struggled so much with the backlog of assessments, as I have described, that the last Government were not able to implement the changes to the deprivation of liberty safeguards assessments contained in the Mental Capacity (Amendment) Act 2019. It is worth pointing out that the Bill seeks to create a new and additional role for social workers on the panels, and in that context, I hope noble Lords will consider these amendments.

My Lords, for the reasons given by the noble Baronesses, Lady Finlay and the Lady Berger, I support all these amendments.

Perhaps your Lordships, and particularly the Whips, will forgive me if, very briefly, I go slightly wider. I am one of the oldest Members of this House. I do not like the Bill but I am here, like other noble Lords, to try to make it work. It needs scrutiny and improvement. However, we must get it to Third Reading. If we do not, there is a very real danger that the reputation of this House, which not only I but all your Lordships care about deeply, will be irreparably eroded.

This morning I listened to the “Today” programme. I agree with every word of what the noble Baroness, Lady Grey-Thompson, said, but there was a perception that we are being unreasonable. What we can do, perhaps, is not expect to be entitled, exercise self-restraint, deal with the amendments relatively briefly, and not make a point if someone has already spoken on the point you were going to make. We really must get to Third Reading. Forgive me for saying all that.

My Lords, I will act immediately on the words of the noble and learned Baroness, Lady Butler-Sloss, and respond briefly to what the noble Baroness, Lady Finlay, and my noble friend Lady Berger said. Basically, they are referring to the problem of people who lack capacity and who have had their liberty deprived because their lack of capacity is so severe that they cannot be trusted to be free. That normally takes place in the setting of a hospital or a care home, but it can also take place in the setting of a private home; that is where the Cheshire East cases come into play.

The noble Baroness, Lady Finlay, said that this should be a yellow flag. If your lack of capacity is so serious that your liberty is taken away, it indicates that something is seriously wrong. The principle of the Mental Capacity Act 2005 is that capacity should be looked at on a case-by-case basis. There will be cases where someone’s liberty is taken away where they would not necessarily lack capacity in relation to very serious issues.

I should have declared this before. Apart from my receiving money from Mr Bernard Lewis to pay for an assistant and having Dignity in Dying pay for the publication of some printing that went to Peers, my wife was, until very recently, a designated family judge and sat in the Court of Protection. I should disclose that.

Among the sorts of case that come before the courts —they will come before the courts, not a local authority—are those of people who desperately do not want to leave their home. Eventually, they will have to have an order from the Court of Protection, meaning that they have to leave; this is sometimes accompanied by a deprivation of liberty order. Many of those people, even though they are moved somewhere else, would still have the capacity to make a decision in relation to assisted dying.

How do we deal with the perfectly legitimate points made by the noble Baroness, Lady Finlay? I have had the opportunity to discuss this with the noble Baroness; I thank her for that. The answer is that there should be some form of enhanced protection to deal with what she says is a yellow flag. I suggest to the Committee that I speak to those Peers who are interested—including my noble friend Lady Berger and the noble Baroness, Lady Keeley, who sadly cannot be here today—to see what form that enhanced protection could take.

My Lords, I would like to comment on this group in response to what the noble and learned Lord, Lord Falconer, has just said.

In its recent briefing for Peers, the Royal College of Psychiatrists gave its view:

“Assessors should be required to take all practicable steps to work with professionals involved in a person’s health and social care, and to talk to a relative, carer or nominated friend, including by accessing medical notes from both primary and secondary care”.

It expressed concern that

“a consideration of suicide protection duties are being bypassed by the Bill in its current form”

due to unmet need not being formally assessed. A previous DoLS is relevant to consideration of current capacity to decide to end one’s life. What would be the mechanism for reliably ensuring information that there has been a DoLS before it gets to the assessors and the panel?

Having mentioned the Royal College of Psychiatrists, I would like to make a short statement. The college has asked me to respond to the allegations about its leadership made by the noble Baroness, Lady Murphy, on 14 November, our first day in Committee. The president of the college, Dr Lade Smith, wrote to the noble Baroness asking her to withdraw her allegations, as they are inaccurate. But although the noble Baroness was present in the Chamber the following week, no clarification was provided. As a past president myself, I beg leave to set the record straight.

The college’s recommendations on the Bill are, in fact, based on 18 months’ consideration by a cross-college working group involving membership surveys, debate with members on proposals before other jurisdictions, and discussions with colleagues in other jurisdictions where assisted dying is practised. The president is clear that Dr Annabel Price, the appointed college lead for the Bill, has accurately represented its views when giving formal evidence to both Houses. With the Bill before the Lords, the Royal College of Psychiatrists is focusing on how to make it safer for people with mental health needs and learning disability needs, and better aligned with the responsibilities of psychiatrists. I feel that, in the light of the discussion on DoLS, this is an appropriate statement to make.

My Lords, I have put my name to Amendment 16. I also support Amendments 16A, 114 and 114A because the very general definition in Clause 1 of a terminally ill adult who has the capacity to take their own life does not contain any consideration of those who have been deprived of their liberty under Section 4 of the Mental Capacity Act. It is an unfortunate reality that many of those detained in hospitals or care homes are detained because they lack the capacity to make a decision about their own care or treatment. As the noble Baroness, Lady Finlay, said, in such circumstances it is surely axiomatic that there should be careful consideration of cases involving individuals subject to a DoLS.

As the noble and learned Lord, Lord Falconer, said, even assessing the capacity of someone with dementia or another neurological condition, for example, can be profoundly difficult. This is not just because of the frequent fluctuation of both capacity and the extent to which any identified capacity enables the making of a particular decision; a medical practitioner or social worker who meets a person for the first time may be misled as to the capacity they actually have. As the Royal College of Psychiatrists noted in its written 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 in other assessments of capacity.

In the 1997 case of Re MB, the noble and learned Baroness, Lady Butler-Sloss, said:

“The graver the consequences of the decision, the commensurately greater the level of competence required to take the decision”.

Capacity assessment is not a precise science. The unique context of this Bill makes taking a cautious approach appropriate. It is common sense that there is a likely correlation between incapacity in one area, so extreme that the state must deprive the person of their liberty, and incapacity to decide whether to end one’s own life. People whose incapacity for basic decisions is so severe that they are deprived of their liberty are the most vulnerable members of society.

My Lords, forgive me. What the noble Baroness is saying is extremely interesting, but the noble and learned Lord, Lord Falconer, has already said that he will seek a meeting with the noble Baroness, Lady Finlay, and all other noble Lords who are interested in this. He is not rejecting the amendments; he is willing to enter into a discussion.

I thank the noble Baroness for that helpful intervention, but we do not know what the outcome of that meeting will be. I think I have the right to make my remarks.

My Lords, I will speak to the amendments in this group. I did not table one in my name about a group of people who are also subject to deprivation of liberty safeguards. I am pleased to hear the noble and learned Lord repeat his offer of a meeting, which was made last Friday. I was disappointed not to receive an invitation to a group meeting to discuss the various groups of vulnerable people who may need additional conditions. Had there been such a meeting, I would not be taking up time today or on the later group, where I had offered to withdraw amendments had a meeting taken place.

There is another group of people under deprivation of liberty safeguards who are not under the Mental Capacity Act. These are young people who are under the High Court jurisdiction of deprivation of liberty safeguards—called High Court DoLS. I thank the President of the Family Division for ensuring that there is research available on this group and the Children’s Commissioner, who has visited very many of them. Those young people are so troubled that their liberty needs to be restricted, but they cannot currently be detained under Section 25 of the Children Act in a secure children’s home. That was for a variety of reasons. One was that we ran out of places, but another was that some of them were in such a situation that they could not even bear a communal secure environment like that.

I did not table an amendment also because under the Children’s Wellbeing and Schools Bill these young people will possibly be brought under the statutory jurisdiction of the Children Act, though it would not be all of them. There were 1,280 applications made last year, and around 90% of them were granted, so this is not, as was originally envisaged, a handful of young people. Are any of those young people also ill? Are noble Lords content that at 18 years and one day old they should have assisted suicide raised with them? Are they also happy that if a child has been under mental health treatment but is also physically ill, at 18 years and one day they come under the jurisdiction of this Bill? The same applies to those detained in a young offender institution. Sadly, due to the Private Member’s Bill process, I do not believe that there has been any consultation, a White Paper or pre-legislative scrutiny to flush out the details and data that we need to properly legislate.