Baroness Berger (Lab)

My Lords, we have debated for just over two hours and some very significant issues have been raised. It is worth outlining briefly why this group matters, particularly in the context of what is happening beyond this place and considerations and representations being made in the media. It was last week that Esther Rantzen told us that the Bill “only applies to terminally ill people like me”. The campaigners we hear from reassure us that it would obviously be something that they “freely choose and have fought for”. There are noble Lords who said at Second Reading in this place: “I want that choice for myself”.—[Official Report, 12/9/25; col. 1786.] It centres those who have no doubts about their capacity to make this decision and no doubt that they would freely choose, but it removes from the room people who are not like us. It is our job to balance the needs of those with true agency, for whom this will be a free choice, with those who may be pressured or led towards this path, in particular because of the inadequacies of the Mental Capacity Act. It is clear that there remains significant concern about the relationship between the existing test in the Mental Capacity Act, brought forward in 2005, and the decision to have an assisted death under the Bill. At the risk of stating the obvious, a decision to have an assisted death was not in contemplation for the architects of that Act back in 2005, so it is not surprising that we have heard such a range of questions and concerns, both from noble Lords and from experts outside this Committee, including the Royal College of Psychiatrists. I listened closely to my noble and learned friend’s remarks to the noble Baroness, Lady Finlay. It may be helpful for noble Lords to be aware that, back in the other place, the desire to use the Mental Capacity Act was largely pragmatic as it is what doctors are used to, not because it is the best framework for this decision. I reflect on the comments from the Health Minister, Stephen Kinnock, who said in the Commons that it is “a known quantity” and a well-established piece of legislation. He went on to say that doing things differently would cause “operational challenges and confusion”, and that a different approach would add complexity. This bunch of amendments has pragmatic, specific proposals for adjustments to address what we are trying to do within the constraints of the legislation. Perhaps this would have all been ironed out if we had gone through some proper pre-legislative scrutiny, as we would have done had this been a government Bill. In particular, I acknowledge the expertise of the noble Baronesses, Lady Hollins, Lady Cass and Lady Finlay, in this debate. The debate has raised some serious questions about what these specific provisions of the Mental Capacity Act mean for the weakest and most vulnerable: the endorsement of unwise decisions; presumption of capacity; brief retention of information, and whether that is sufficient; a duty to support decision-making, which risks becoming a duty to facilitate a decision to die; and relying on time-specific capacity. I have in front of me so many different important points raised by noble Lords from across the Committee. In the time we have available, I am not going to mention all of them, so I hope noble Lords will forgive me for that, but it is worth reflecting on just a handful. The noble and learned Baroness, Lady Butler-Sloss, raised the very important concerns about people with variable dementia and people who are sectioned. The right reverend Prelate highlighted the biases experienced by people with learning disabilities and the discrimination they face. The noble Baroness, Lady Finlay, talked about the need for clarity for doctors and how we can at least endeavour to make the Mental Capacity Act fit for purpose in the Bill. The noble Baroness, Lady Cass, reminded us all that assisted death is not a medical treatment. I again reflect on the important representations from the noble Baroness, Lady Grey-Thompson, on the concerns raised by the disabled community and the particular challenges not addressed in the Bill. Given that my noble and learned friend Lord Falconer indicated in his response that he will defend the Mental Capacity Act as the foundation for the Bill, it is disappointing that he has dismissed the specific provisions that could be set aside and could make a difference. I welcome his earlier intervention, when he said that he would bring forward amendments that would introduce additional assessment in particular cases, but that question is different from the one being asked today, about how we can be confident that the test itself is the right one. I was particularly concerned by my noble and learned friend’s response to the question from the noble Baroness, Lady Grey-Thompson, about whether a disabled person would be safe. He said that no one would be overpressed into making a decision to end their life. I think that, for many of us here, it is not about being overpressed: we do not want anyone to feel pressed at all. I hope that he will further consider that question, including how experts, who still have so many doubts, can be consulted in more detail. Given that we first started talking about these issues in this place before Christmas, and in order to expedite our deliberations, I hope that we will not have to wait until Report and that the amendments he mentioned will be brought forward as soon as possible. We understand that he has a wealth of civil servants and legal experts at his disposal; perhaps they can help him to act even quicker. My noble and learned friend has outlined that he is not prepared to accept any of the amendments proposed in this group, but we would like to see what he intends to propose as an alternative. I know that everyone is concerned that we should expedite our deliberations, in the light of the later groups, and that would help us all enormously.