My Lords, it is a fundamental principle of the Bill before us that a person seeking assistance to end his or her own life should have the capacity to make such a profound decision. That is at the centre of the Bill and why it has taken up so much time—quite appropriately—in the course of this debate. Some of the amendments in this group seek to include capacity among the eligibility criteria in Clause 1. Noble Lords may see some merit in that approach, albeit that the issue of capacity is addressed in Clause 3.
It is clear, however, that your Lordships are concerned to ensure that sufficient safeguards are in place properly to assess a person’s capacity to make these very difficult decisions. It is of course right, as has been observed during this debate, that capacity can vary over a period of time and that assessment can be complicated where a person has both a physical and a mental illness. We have heard in particular how depression can be both difficult to diagnose and can fluctuate. Therefore, several assessments over a period of time may be necessary adequately to assess capacity. That leaves aside the question of a change of mind, on which certain noble Lords were somewhat at cross-purposes. However, it nevertheless remains an important issue, the answer to which seemed to be given, I respectfully suggest, by the noble and learned Lord, Lord Mackay, which is that the reversibility of the decision is covered by Clause 4(2)(c).
On the question of mental capacity and the relationship between the Mental Capacity Act and the Bill, my noble friend Lord Swinfen correctly reminded us that the Mental Capacity Act presumes capacity. However, that Act emphasises that capacity is issue-specific. As I understand it, the purpose of the Bill is to identify the particular issue in order for it to be determined whether the individual has the capacity to make that particular decision. What we are asking here is: are there adequate safeguards to enable that decision and the capacity to make it to be adequately assessed?
I will of course consider the point made by the noble Lord, Lord Hunt, about trying to give further guidance. However, at the moment I am not convinced that there is any tension between the Mental Capacity Act and what the Bill does. Whether the House generally considers that the safeguards are adequate is a different matter and one on which there can reasonably be debate.
However, it is clear that there are differences of view about who should carry out the assessment, how many people should do it and whether there needs to be input by more than one person across a range of professions. Psychiatrists, of course, have been identified as key in this, but social workers are also experienced in assessing whether coercion or duress is being brought to bear. Increasingly, they are being asked to carry out capacity assessments for the Court of Protection, and they also play a leading role in safeguarding a person who may be at risk of harm from family or friends. The noble Baroness, Lady Hollins, was right to emphasise the importance of an assessment of the absence of mental disorder being critical when considering capacity. Your Lordships will have to reflect on whether there is a need for specialist assessment of capacity beyond that being carried out by the attending doctor and the independent doctor and, if so, what the requirements should be.
Finally, your Lordships may think that the noble Lord, Lord Griffiths, was right when speaking not altogether flippantly of the capacity of decision-makers to remind us that there is fallibility in experts just as there is fallibility in judges.