My Lords, I have put my name to Amendment 66 because, as I said at Second Reading, I am concerned that there are not sufficient safeguards in the Bill to ensure that the mental capacity of the terminally ill person has been correctly assessed.
In subsection (2) of the proposed new clause, the emphasis is on the doctor not to countersign the declaration of intention,
“Unless the attending doctor is satisfied that a person requesting assistance to end his or her own life has the capacity to make”,
that decision. I listened carefully to what my noble friend Lady Hollins said about psychiatrists not necessarily being brought in. However, I should like to think that we can rely on the professionalism and training of our doctors and that if they were in any doubt at all, they would call in a psychiatrist to make this assessment to reach that very high level of satisfaction that the patient has the mental capacity.
The requirement to call in a psychiatrist if the doctor is concerned about the person’s mental capacity was included in the original Bill of the noble Lord, Lord Joffe, but is not in this Bill. As my noble and learned friend Lady Butler-Sloss said, subsection (2) of the proposed new clause points out that the person should not be,
“suffering from any condition, including … depression”,
which could impair his or her judgment. Recent medical evidence has revealed that the presence of depression in terminally ill patients is much higher than in other patients. In a report in the BMJ, Prevalence of Depression and Anxiety in Patients Requesting Physicians’ Aid in Dying, the authors investigated terminally ill patients in Oregon who requested aid in dying and found that more than 50% met the criteria for depression or the criteria for anxiety that they were depressed. Depression can leave a person with unchanged mental capacity; it can also radically change a person’s mental capacity. There was rather a good article in the Journal of Clinical Oncology entitled “Euthanasia and Depression: A Prospective Cohort Study Among Terminally Ill Cancer Patients”, which discovered that the risk of requesting euthanasia for patients with a depressed mood was 4.1 times higher than that for patients without a depressed mood.
This amendment would put the onus on the doctor assessing the mental capacity of a patient to bring in a psychiatrist if they were at all concerned about this condition. Proposed subsection (3) seeks to set out the criteria for the psychiatrist who is going to be involved. The 2005 mental capacity committee heard from Dr Geoffrey Lloyd of the Royal Free Hospital’s department of psychiatry that in more complicated cases only liaison psychiatrists have the expertise to assess a patient’s mental capacity correctly. The report said:
“There was a general consensus among our expert witnesses on one point—that the attending and consulting physicians who are envisaged as being effectively the ‘gatekeepers’ in regard to applications for assisted dying could not be expected to spot impairment of judgement in all cases”.
Proposed new subsection (4) asks for the psychiatrist also to be satisfied that the person making the request has the capacity to make the decision to ask for assistance with dying. Patients can be very good at deceiving even trained psychiatrists about their state of mind and can appear to be capable when they are not. The same often appears with people who are suffering from dementia. Psychiatrists may need to make another visit, maybe a month or so later, to make a proper assessment of their capacity. I can quite see that this sort of period can make the delay too long for many terminally ill patients. My answer must be that the most important thing is to get the decision right. I hope that this amendment will do just that.