My Lords, I believe we are debating the whole of the group, although I do agree with the noble Lord, Lord Mawhinney, that the assessment of capacity and settlement of the decision needs to be done at the moment that that decision is finalised. I do not think that the other amendments in the group are rigorous enough. My Amendments 71 and 151 have three main elements. I am drawing on my experience as a psychiatrist working with disabled people—in particular people with intellectual disabilities—and of teaching medical students about the assessment of capacity for more than 30 years.
The first element to which I want to draw attention is that, in consideration of any request for assistance with suicide, positive action is taken to establish that there is no evidence of mental disorder. The second
element is the need to establish the presence of a decision-making capacity that is commensurate with a decision of this nature, as has already been suggested by my noble friend. Thirdly, the amendments propose a regime for ensuring that clinical opinions about the absence of mental disorder and the presence of decision-making capacity are taken on the basis of expert assessment.
There are in England and Wales two circumstances when a person is not permitted to make healthcare decisions themselves. One is when they lack mental capacity in relation to the relevant decision. The Mental Capacity Act 2005 applies to many decisions but assistance with suicide is explicitly excluded. Other noble Lords will explain more about decision-making capacity and the findings of the recent post-legislative scrutiny Select Committee of your Lordships’ House which examined this Act and of which I was a member.
The other circumstance when people are not permitted to make healthcare decisions for themselves is when they suffer from a mental disorder of a nature or degree that warrants, for assessment under Section 2, or makes it necessary, for treatment under Section 3, for the person to be in hospital in the interests of their health or safety or for the protection of others. If a person was depressed or anxious and wished to kill themselves, they would normally be stopped from doing so with the authority of the Mental Health Act 1983, so the additional assessments that I am suggesting in this amendment should relate not only to impaired judgment but, first, to whether the person has a mental disorder.
I remind noble Lords that the definition of mental disorder is,
“any disorder or disability of the mind”.
The psychiatrist making such an assessment must be Section 12 approved, as required by the Mental Health Act. The Mental Health Act is risk based, not capacity based. If it is in the interests of his health, a person with a mental disorder can be detained and treated. It overrides personal autonomy. The Mental Health Act does not require any impairment of judgment or decision-making capacity to be present.
If you have a mental disorder then, whether you are capacitous or not, you will not be given assistance to die. The Mental Health Act would take precedence and the person’s mental illness would need to be treated effectively before any assessment of their decision-making capacity was made. Therefore, the Mental Health Act provides another safeguard.
As I read the Bill, nothing would stop patients detained under the Mental Health Act, if they retained decision-making capacity, from being given medication to end their life. That is clearly wrong. I shall go further: it relates not just to patients who are already detained but to those who, if assessed, would meet the criteria for detention in order to treat their mental illness.
Wishing to end one’s life is a common symptom of mental illness, normally regarded as constituting grounds for psychiatric assessment. Suicide itself is not unlawful but, as a society, we regard suicidal intent as a reason to protect a patient from self-harm. We do not take the view that we should intervene in a case of suicidal
intent only if we have reason to believe that the person concerned lacks capacity; we assume that a person who announces or otherwise indicates intent to take his or her own life is not acting rationally, and we do everything possible to discourage or prevent him or her proceeding. That is what all the suicide watches and all the suicide prevention strategies that successive Governments have introduced in recent years are about. Indeed, the national confidential inquiry into suicide and homicide, NCISH, which I chaired from 2007 to 2010, was set up to inform clinical practice and health policy with a view to reducing suicide rates.
The noble and learned Lord’s Bill makes it clear at Clause 6 that it is seeking to amend the Suicide Act 1961. Some may not see the provision of lethal drugs to a seriously ill person as assistance with suicide but in law that is what it is. This leads me to conclude that the Bill is out of alignment with social attitudes to suicide.
The Assisted Dying Bill also fails to provide a strong enough assurance that a person requesting assisted suicide has the mental capacity to make this decision. Capacity assessment must be decision-specific. The more serious the decision, the greater the level of assurance required that the person making the decision has commensurate capacity; that is, a level of capacity appropriate to the decision in question. The key purpose of my amendments is to ensure that there is mandated, at least in outline, a proper process for establishing the absence of mental disorder and for taking positive action to ensure the presence of commensurate capacity.
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Therefore, my proposed steps for establishing the absence of mental disorder and the presence of capacity are as follows. The attending doctor who is assessing a request for assistance with suicide must first be personally satisfied that the person making the request is not mentally disordered and has a level of capacity commensurate with this life-or-death decision. If the doctor is satisfied, he must refer the person for confirmation of this view by a specialist.
Some may ask why I have not chosen to follow Oregon’s model of requiring referral for a specialist opinion only in cases of doubt, as proposed by my noble friend Lady Murphy and others. The question might be asked that if the attending doctor has a concern about a potential mental disorder, surely he would ask for an assessment, would he not? If he thought there was a serious mental disorder, surely he would seek to use the Mental Health Act, would he not? But research has demonstrated that many doctors are poor at recognising depression and lack knowledge on how to assess for its presence in terminally ill patients.
Depression is a subtle condition, frequently gaining an insidious foothold in many people with physical illness and many people who are disabled, thus hugely influencing their psychological processes. Studies in terminally ill patients have clearly shown that depression is strongly associated with a desire for a hastened death, including the wish for physician-assisted suicide or euthanasia. This is true for the top three diseases for which patients request physician-assisted suicide—
cancer, motor neurone disease and HIV/AIDS—yet even when it is recognised, doctors often take the view that what is sometimes diminished wrongly as understandable depression cannot be treated, does not count or is in some way not real depression.
However, research shows that when depression is detected and treated effectively with medication, psychotherapy or other psychosocial support, most—98% to 99%—will subsequently change their minds about wanting to die. That is an extraordinary statistic, and patients with pre-existing mental illness who then develop a terminal physical disease may receive substandard treatment for psychiatric relapses after requesting assistance to die because doctors struggle to recognise relapse and the need for psychiatric clinical care. The difficulties of spotting depression in terminally ill patients mean that assisted dying will put such people at risk.
According to a large independent study by the Royal College of General Practitioners, 77% of GPs are opposed to a change in the law, so it will be a minority of doctors doing the majority of assessments—doctors who know nothing about a patient beyond their case notes. We know that GPs and physicians are slow to refer to psychiatrists. It seems very unlikely that they will refer, despite our new discourse about parity for physical and mental illness.
There is evidence that Oregon’s regime of referral if needed just does not work. Independent research has revealed that some people in Oregon who have ended their lives with legally supplied lethal drugs had been suffering from clinical depression, which had not been detected by the assessing doctors and had not been referred for specialist assessment. We do not want that happening here. Psychiatrists do not want to see members of their own patient group being let down by the lack of a rigorous safeguarding process; nor do they want to be the gatekeepers, so they are in a bit of a double bind. It could work only if the assessment process was in support of a judicial decision-making process, such as that suggested by the noble Lord, Lord Carlile, and I suggest that the independent medical experts called for by him should always include a psychiatrist.
Problems of physical and mental health often coexist. As specialists who frequently work at the interface of such problems, psychiatrists are well aware of the effects of disempowerment, despair, fear of the future and fear of being a burden to others.
The declaration which the Bill of the noble and learned Lord, Lord Falconer, asks the doctor to sign states that the patient,
“has the capacity to make the decision to end their own life; and … has a clear and settled intention”,
to do so. That is a not a declaration that I as a doctor and a psychiatrist would be prepared to make without getting to know a patient, and I am not alone in this view.
The noble Lord, Lord Griffiths, asked whose capacity was in question. Research carried out in Oregon found that only 6% of psychiatrists felt confident that they could establish capacity for assisted suicide on the basis of a single consultation, yet this Bill does not require even a single consultation with a psychiatrist. So how many times do I think a psychiatrist should
see the person? Since suicidality fluctuates, I propose for the purpose of this probing amendment that there should be two specialist assessments, spaced ideally at least 28 days apart, with offers of treatment for both depression and pain, so that there is time for suicidal ideation to abate. My concern here is to have assurance that all the relevant areas of psychopathology, especially those that may be difficult to explore and/or where highly specialised knowledge of psychopathology is required, are covered.
Medicalising assistance with suicide is a dangerous road to travel. The BMA is very clear that assisting someone’s suicide should not be part of any doctor’s job description. The 150,000 doctors represented by the BMA have a well established way of achieving consensus through their representative processes.
It is our duty to scrutinise this legislation to try to reduce risk to people who may be more vulnerable than us—indeed, I believe that this is our only responsibility today. I do not believe that this Bill is safe. These amendments are offered to the House to make it a little safer in the unhappy circumstance of it being passed into law. I certainly intend to return to this issue if there is a Report stage.
In case there is any room for doubt, I support the amendments proposed by the noble Lord, Lord Carlile, in this group and the previous group.