My Lords, I will speak to Amendments 66 and 84, since I understand that I cannot speak to Amendment 9. Before I do so, I have one point about Amendment 6 of the noble Lord, Lord Mawhinney. I am not terribly happy about it. The written declaration in Amendment 5 of the noble
Lord, Lord Carlile, ought to be adequate. We have to bear in mind that we are talking about people, according to the wording of the Bill, who have either six months to live or, if the noble Lord, Lord Carlile, is right, three months to live. To expect a second declaration in addition to a first, when one would expect the first declaration to have been seriously considered before it was signed, is probably a step too far and would, in my view, probably be unjust to a patient.
On Amendment 66, I need to explain to the House why on earth I am producing another amendment on capacity. There are three reasons. One is that I am not happy with the word “commensurate”. This is a highly technical point, for which I apologise, but speaking as a lawyer the Mental Capacity Act 2005 talks about capacity. Nowhere, to my knowledge, is any word attached to “capacity” to explain it. One of the most important areas of capacity is the capacity to make a will. Perhaps it is not as important as the capacity to live or die, but it is certainly of great significance to lawyers and to those who witness a will. You should not use the word “commensurate” for a will, and neither should you use it for this matter we are now discussing. However, that is a technical point.
2.15 pm
I will make two other points on my amendment. First, I say in proposed new subsection (2):
“Unless the attending doctor is satisfied”.
I am asking for the doctor to be satisfied—for it to be an onus on him to be satisfied that the person has capacity. Unless he is absolutely satisfied, he cannot go ahead. I hope that using the word “satisfied” would place quite a heavy burden on the doctor. I understand the point made about “the nearer you are to death”, but some people are in deep depression and want to make a decision in that state of depression, when their mental processes may not be entirely coherent. That is why I would want one to be quite certain—to be satisfied—that the person is not in depression, does not have some other mental illness, and is not under the influence of drugs or anything else like that, and therefore to put the onus on all doctors to a greater extent than it otherwise might be under the wording of the Bill.
The second point, which is covered by proposed new subsection (6), is on appropriate training. Every doctor—and obviously the psychiatrist, if it ever gets to a psychiatrist—will have that training. However, as I understand it—of course, I am not a doctor—there are modules for training doctors in various other aspects which are not their particular expertise. I suspect that we are talking here largely about general practitioners, who will be the attending doctor, and the independent or second doctor. It would be very important for each of those doctors to have adequate information, at least at a primary stage, to understand what pointers they should be looking for when they are judging the capacity of a patient who is asking that doctor to assist them to die. I do not think the requirement for at least some training before they make that decision is to be found anywhere else in these amendments.