I support the noble Baroness, Lady Hollins, on her Amendment 71. Given the gravity of the decision to end one’s life, ensuring that a person requesting assisted death has the capacity to make this decision is of fundamental importance, yet the Assisted Dying Bill raises serious concerns about how decision-making capacity will be determined.
Furthermore, I think that the Bill is inaccurate from a legal standpoint with respect to the assessment of mental capacity. The Mental Capacity Act 2005 states at its outset that:
“A person must be assumed to have capacity unless it is established that he lacks capacity”.
Section 62 of the same Act makes clear that,
“nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961”.
Yet Clause 12 of the Bill of the noble and learned Lord, Lord Falconer, states that,
“‘capacity’ shall be construed in accordance with the Mental Capacity Act 2005”.
The Mental Capacity Act for England and Wales has established the legal criteria to be met if a person is to be considered to lack capacity in relation to the matter in question. There is a requirement that,
“at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in, the functioning of, the brain or mind”.
Mental capacity must then be functionally assessed, as it is decision specific and time specific.
In the context of this Bill, the person must have the capacity to make the decision to ask for and, if offered, accept a medical intervention, the consequence of which is death. Given the criteria set out for decision-making capacity in the Mental Capacity Act, the person concerned would need to understand and balance knowledge of their existing medical condition and any potential treatments, and the likely benefits of further palliative care, and be able to communicate this choice, being fully aware that the consequence if the doctor agreed to carry out the procedure would be his death.
From April 2007, the Mental Capacity Act has provided the legal framework in England and Wales for substitute decision-making with respect to healthcare treatment when a person lacks the capacity to make relevant treatment decisions for himself. This can be helpful to people nearing the end of their lives. Lasting power of attorney for health and welfare allows decisions to be delegated to one or more attorneys of your own choice. You can also give your attorneys the power to refuse or agree to any medical treatment you may need to stay alive, if ever you are unable to make that decision. This is called an advance decision and is legally binding if the circumstances are the ones you specified. Any action taken must, under the Mental Capacity Act, respect valid LPAs and advance decisions to refuse treatment.
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In the absence of guidance from an LPA or advance refusal, actions taken must be in the patient’s best interests. The MCA is very specific in stating, under “Best interests”, that, with respect to life-sustaining treatment, such action must not be motivated by a desire to bring about death. Thus, vulnerable people with enduring incapacity to make this particular decision would be protected from physician-assisted suicide, as capacity is required under the Assisted Dying Bill and such action would not be acceptable under the MCA, as I understand it. The MCA is an enabling and much liked act, which vulnerable disabled people look to
with great hope because it has the potential to empower them and they do not want it annexed by legislators with a very different purpose in mind.
Few would dispute that a decision to end one’s life lies at the top end of any spectrum of gravity. It would be no exaggeration to say that, for anyone making such a decision, it is the most important decision of their life. It would not be sufficient therefore to authorise such requests simply on the basis that a doctor is satisfied that the person making the request has the capacity to make the decision. In a case such as this, it is necessary to require that the presence rather than the absence of capacity be established.
The amendment tabled by the noble Baroness, Lady Hollins, seeks to make clear that the assumption of capacity underlying the MCA—an Act which noble Lords will remember was not designed for this purpose—does not apply and that the process of assessing a request for assistance with suicide must include positive action to establish the existence of capacity commensurate with the gravity of the decision involved rather than simply that there is no reason to suppose that it does not exist.
Determining that a person has the capacity to make this particular decision is crucial, as it is a necessary and pivotal factor in deciding whether under the Assisted Dying Bill physician-assisted suicide can be considered. Research indicates that it would be inappropriate to take apparently capacitous requests for physician-assisted suicide at face value. If there is concern about the influences and motivations behind a request for assisted suicide, the action should not take place.
The responsibility for assessing a person’s decision-making capacity would, as the Bill stands, rest with the physician who would authorise the assisted suicide. It is all very well to say, as the supporters of legalised assisted suicide do, that capacity assessment is part of a doctor’s role. Yes, it is, but when doctors assess capacity, they do so with a view to protecting patients from harm, not to clearing the way for assisting their suicide. This Bill is proposing something outside the parameters of clinical practice and, in consequence, different procedures would be needed.
A really experienced, knowledgeable, sensitive doctor may do a very good job, but there are doctors and doctors. We know that the Care Quality Commission has major concerns about a significant number. I would not want some of those to make decisions of this magnitude in assessing a request for assisted dying made by one of my family.
Indeed, the recent report by your Lordships’ post-legislative scrutiny committee found that the Mental Capacity Act is not yet fully implemented, especially in clinical practice. Doctors have varying levels of competence in assessing decision-making capacity. Few understand how to assess capacity and many fail to recognise when a person lacks capacity.
In the context of the Assisted Dying Bill, the assessment of capacity must not be thought of as a brief exercise taking place at the end of the bed. Rather, great attention must be paid to how the capacity of a person making the decision can be optimised. Time can and must be spent undertaking this process, particularly
given the consequence that, if the doctor agrees with what the person is requesting, the action that follows will result in that person’s death.
For a decision of such consequence, specialist assessment of end-of-life decision-making capacity should be mandatory. A myriad of factors, including pain, the effects of medication, feelings of being a burden and poor social support may affect a person’s decision-making. While clear diagnoses of psychiatric disorders which may affect decision-making, such as severe depression and psychosis, may occur, more frequently judgment may be coloured by mild depression, mild cognitive impairment and subtle pressure from others. Particular skills will be needed by those required to identify these psychiatric issues in assessing a person’s end-of-life decision-making capacity in this context.
If Parliament decides that this Bill should become law, a very high standard of expertise will be required by those involved. They must ensure that those requesting physician-assisted suicide clearly had the capacity to make such a request. If they were considered to have this capacity, the nature of the psychological processes that led them to make such a decision must have been properly explored and documented.
Yet the Bill as it stands does not provide for mandatory specialist assessment of decision-making capacity. It leaves it all to the attending doctor to decide—usually a GP who will almost certainly have had no psychiatric training. I gather that, until recently, many medical schools taught no psychiatry at all. The Bill’s supporters argue that there will be codes of practice to guide doctors on how to go about making these assessments—