Coercion and pressure
What are the general risk factors?
Overall there are high levels of elder abuse in our society. As the charity Hourglass (previously Action on Elder Abuse) found “1 in 5 UK residents (22 percent) have personal experience of abuse as an older person or know someone who has been abused.”
According to the Office of National Statistics data on domestic abuse:
3.2% of respondents aged 60-74 and 1.4% of those aged 75+ reported that they had experienced domestic abuse in the year spanning April 2022 to March 2023, which is equivalent to an estimated 375,000 people older victims of domestic abuse in England and Wales.
The charity Age UK say that they:
have contact with more than 1 million older people each year. We are hearing from increasing numbers of older people describing abusive behaviour by their partners and family members. It’s essential we can respond to these concerns and ensure when older people reach out, they have access to specialist support services.
A substantial proportion of such abuse is financial as lawyers working in the field of inheritance attest to.
As Tamasin Perkins, a partner at Charles Russells Speechlys, notes:
Undue influence or coercion is depressingly common in the arena of contested wills and gifts. Typically, this might manifest as a close family member or carer exploiting the vulnerability of the person that they care for to engineer a benefit for themselves, or a physically dominant or coercively controlling partner forcing their less strong partner down a particular path. Those relationship dynamics will also underpin many situations where the person affected is considering whether to live or die. Money may not be a factor in all cases, but in some the carers, family members and partners surrounding the dying person will also stand to benefit under their will. Assisted dying would accelerate a gift to any financial predator.
Similarly, Ruth Hughes, a barrister specialising in mental capacity and inheritance says:
If the Terminally Ill Adults (End of Life) Bill is passed, then this will lead to some of the most vulnerable people dying for others’ financial gain. That is certain. During a career spent specialising in mental capacity law and inheritance I have seen an array of financial abuse. Such abuse can be highly sophisticated. Here are some examples: the defrauding of an incapable person following a dodgy doctor’s misleading mental capacity report; “predatory” marriage by a paid or voluntary carer; families taking advantage of an elderly relative through wills or lifetime transactions they don’t want or don’t understand; and even the removal of that relative from one continent to another. Some people at the end of their life are highly vulnerable to pressure. Many, perhaps particularly women, may consider themselves to be a burden and the high cost of social care can see them running through a lifetime of savings they expected to be able to pass on to their children at an extremely high rate. That money might well be needed for adult children to get on the property ladder particularly in the South of England where prices are so high. There is a risk of guilt that can be leveraged and much reason for a beneficiary to do so. It is surprisingly easy for a relative, whilst completing a variation on “the classic asset strip”, to persuade themselves that they are actually acting in their aunt Dorothy’s best interests or in accordance with her wishes or what would be her wishes if only she properly understood. It is attractive, sometimes unconsciously, to elide self-interest with self-righteousness.
The High Court in the Conway case concluded that the risk that individuals will feel pressured into assisted dying is ‘clearly a real one’:
it is not difficult to imagine cases of family discussions about money problems, not necessarily intended to place pressure on an elderly relative, in consequence of which they draw their own conclusions that they are a burden and would be better off dead. In any event, it might be difficult to disentangle factors of external pressure from the individual’s own internal thought processes and difficult to tell when external pressure is illegitimate or such as to invalidate the individual’s own choice to die. Data from surveys in Oregon of people seeking physician assisted suicide showed that of those responding 48.9% cited “Burden on family, friends/caregivers” as one reason for their decision. The risk that individuals will feel such pressures is clearly a real one.
Do the safeguards eliminate that risk?
Detecting such pressures is not easy, Perkins says:
Coercion can be very difficult to spot as a legal professional (and for medical professionals too). People are on their best behaviour in their lawyer’s office and financial predators can appear charming – the real influence occurs behind closed doors. A lawyer might perceive a general feeling of menace or discomfort in someone’s body language, or a noticeable disparity between the physical presence of one partner and the frailty and vulnerability of the other, or a too close involvement in the decision-making process, or a sudden and inexplicable change of heart. But it is hard to translate the clues lawyers pick up on instinctively into something that is tangible enough to be relied on elsewhere.
Coercion can be insidious; coercively controlling relationships can exist without the person’s loved ones knowing that anything is wrong and often after carefully isolating that person. Threats aren’t always straightforward either – the person exercising coercion might threaten self-harm or to remove themselves from the other person’s life in a way that is enough to overbear them, especially when they are already elderly, severely unwell or vulnerable.
The High Court in the Conway case also explained the difficulties for both courts and doctors to detect such pressures:
Moreover, in relation to external pressure exerted by others on the person concerned, the process of seeking approval from the High Court would not be a complete safeguard. The court would have to proceed on the evidence placed before it. External pressures might be very subtle and not visible to the court. … The problems in relation to the court being able to pick up issues of improper external pressure would be compounded by the likelihood that in many cases the physicians to whom the individual turned to facilitate their death would not have long-term and intimate knowledge of them. It seems that any legislative regime would have to allow doctors who had moral objections to assisting someone to die to decline to be involved and there are likely to be many, as the survey evidence referred to by Baroness Finlay indicates. So the individual might have to turn to doctors other than their usual, familiar GP to obtain assistance to die. This has been the experience in Oregon, as Baroness Finlay explains. No doubt those other doctors would seek properly to assess capacity and to check for an absence of improper pressure from others, but their ability to detect background pressures operating on a new patient whom they do not know well will be limited.
The Court of Appeal in that same case agreed that ‘what remains quite clear is that an element of risk will inevitably remain in assessing whether an applicant has met the criteria’.
Sir James Munby, the former President of the Family Division of the High Court, concluded that the High Court would not be able to detect all cases of pressure:
How confident can we be that the procedures set out in the Bill will be adequate to enable the court to identify and prevent possible abuses and in particular be adequate to detect what may be very subtle external pressures?
My answer, for the reasons I have already given, is very simple. Only those who believe implicitly in judicial omniscience and infallibility – and I do not – can possibly have any confidence in the efficacy of what is proposed.
The Royal College of Psychiatrists reports that a majority of its members do not consider that the safeguard in the Bill is effective:
Majority of psychiatrists are not confident that consent can act as an adequate safeguard. Almost two thirds (65%) of respondents were not confident that consent can act as a safeguard against people making unfree choices, including, for example, those made due to lack of information, coercion or the effects of psychopathology on decision making. Almost one third (31%) were confident.
What are the shortcomings of the safeguards?
Leaving aside the question of whether pressure can always be detected, does the Bill do as much as it could to safeguard against the risk?
Under Schedules 2 and 3 of the Bill, doctors are only required to certify there has not been coercion to the best of their knowledge:
“To the best of my knowledge, the patient— (a) has a clear, settled and informed wish to end their own life, and (b) made the first declaration voluntarily and has not been coerced or pressured by any other person into making it…”
There is no requirement under the Bill for doctors to carry out an investigation and in any event they would lack the time, ability, and legal powers to investigate.
Furthermore, death can happen in total secrecy under the Bill. According to clause 9(e) the doctor may advise the patient to consider discussing it with their next of kin. So without patient consent the doctor cannot discuss it with others who may have information about possible pressures. The doctor would similarly be unaware of who is to stand to benefit either directly (under a Will) or indirectly (in the form of reduced social care costs) if the patient dies. This makes it hard to assess pressure.
Under the Bill the doctor would only be able to rely on a conversation with the patient to assess whether there has been any pressure or coercion. Victoria Derbyshire pressed Christine Jardine MP, one of the sponsors of the Bill, on how doctors could detect such pressures and she did not give an adequate answer:
MP is asked 4 times how a doctor would know if someone had been pressured into assisted dying
By contrast with live organ donations, a trained investigator will speak to both the donor and the person who will benefit from the donation to assess whether there has been any pressure or financial motivations. That investigator then provides a report to the Human Tissue Authority which assembles a panel of three members who then approves or denies the application.
David Lock KC, a member of the HTA, explains the process here:
Why are safeguards so weak?
As barrister Tom Chacko points out, adding additional safeguards makes the process more difficult for those who seek to access it:
The guiding principle in this Bill is that it should be easy and quick to obtain an assisted death. The drafters do not want people without capacity to be killed, nor do they want coercion or pressure to take place, but they are not worried enough about it to include safeguards that would be expensive, unattractive, or that might slow the process down for the target demographic of the well informed, financially secure, determined applicant: people who don’t want to be ordered to involve their family, or to get a psychiatric assessment they don’t think they need, or to wait during a long cooling off period.
What do proponents of the Bill say in response to this?
As far as we can establish proponents of the Bill have not explicitly claimed that the system created in the Bill would catch 100% of all instances of coercion. This is not surprising as it is hard to see how they could make such a claim. However, they have responded to concerns about coercion in other ways.
Alex Goodman KC, Stephanie Harrison KC, and Chris Butler KC have produced a legal briefing for Dignity in Dying (which was cited by Kim Leadbeater MP during the Second Reading debate) in which they say that such coercion ‘seems unlikely’:
16. Sir James [Munby] raises concern as to the ability of courts to uncover cases of pressure. It is worth recalling that the Bill only allows people to pursue assisted dying in the last months of their life. It is not left to a judge to uncover pressure, rather the judge’s supervision is part of a matrix of safeguards including that a person must be terminally ill (which may not be by reason only of a disability or a mental disorder); two doctors and a judge must reasonably regard their death as likely within six months; the person must discuss and confirm their decision several times in consultation with trained doctors, must be judged to have capacity, and be judged by the doctors and court involved to be free from pressure or coercion. It seems unlikely that an unscrupulous person would coerce a terminally person to go through such a highly regulated system over many weeks so as to hasten their death by a few months at most, while risking conviction for doing so. Under the new offences created by the Bill, a person convicted of such dishonesty, coercion or pressure would be liable to serve fourteen years in prison. The Bill appears to have ample, and indeed better safeguards against coercion and pressure than the current system.
It should be noted that none of those three KCs practice in the areas of mental capacity or inheritance. It is worth contrasting their assumption that this would ‘seem unlikely’ with the view of lawyers such as Tamasin Perkins and Ruth Hughes who do practice in areas of mental capacity or inheritance.
The three KCs also point to the deterrent that the new criminal offence would create. But under the current law, anyone who coerced or pressured someone to commit suicide would already commit an offence under s. 2 of the Suicide Act 1961 and under the DPP’s policy they would likely be prosecuted as they have not acted for proper motives. So the new offence is not actually a new safeguard, at best it simply replicates an existing safeguard. In any event, the likelihood of proving beyond reasonable doubt that there has been coercion is low especially as the putative victim is dead.
Indeed, the three KCs make another argument in defence of the Bill, that it has better safeguards than the existing position (whereby we check for coercion after death):
5… Currently, the only realistic safeguard for those who are vulnerable and might be under pressure or coercion to end their life is that of retrospective criminal investigation.
6. The Bill seeks to ensure that terminally ill people are instead given formal guidance and oversight by doctors and courts through a process of deliberation about a range of matters related to whether they wish to voluntarily end their life as it nears its end. There will be repeated assessment by professional people of whether a person is terminally ill and nearing the end of their life, of the person’s capacity, and of the voluntariness of their decision. The person may opt out at any time. Their decision-making will not be clandestine, but out in the open. The general prohibition on assisting a person to die will be retained outside of the statutory scheme and presumably henceforth those who act outside the scheme will be subject to harsher sanction. New offences will be created if the Bill passes.
7. On a comparison of the existing and proposed systems, it does not appear that the current system is capable of better protecting the vulnerable than the system proposed by the Bill.
Kim Leadbeater made the same point during the Second Reading debate:
At the moment, the person will be definitely be dead. We have to look at the status quo. Putting in layers of safeguarding and checking for coercion must be better than the system that we have now.
With respect, the three KCs are trying to have their cake and eat it. At para [5] they are critical of an after the fact prosecution as a safeguard but at para [16] they rely on it as a strong safeguard against coercion. Indeed, under the current system the prosecutor need not prove beyond reasonable doubt that there has been coercion whereas under the Bill they would have to. Given the difficulties of proving that fact when the victim is dead this makes the deterrent effect of that new offence minimal.
In any event, that argument – creating before the fact safeguards rather than relying on after the fact ones – presupposes that the effect of the Bill would be to funnel everyone currently going abroad into the scheme the Bill creates. For that to be the case there would need to be a sufficiently strong deterrent against acting outside the new scheme. This might be the case if the DPP’s policy was changed so that there would be a presumption in favour of prosecution. The three KCs say that “If the Bill is passed, then prosecutorial policy may in future be less liberal for those who assist a person to die outside of the statutory process.” But as the use of ‘may’ acknowledges, it is not certain that this will be the effect and there is nothing in the Bill which even puts a duty on the DPP to issue new guidance (let alone which specifies what that guidance should say).
The final argument made by proponents of the Bill is that the experience of other jurisdictions suggest that there is no coercion. As Kim Leadbeater MP put it in the debate:
Evidence from other jurisdictions shows clearly that coercion tends to happen the other way; what tends to happen is that families try to prevent the person from making the choice of an assisted death.
This would appear to have been taken from the evidence of two Australian experts to the Scottish Parliament. They said that there is no evidence of coercion in favour of assisted dying but that there is of pressures the other way.
The latest report from Western Australia on the operation of their law found that 593 first assessments were made (comparable to the first doctor stage under the Bill) and not a single one was rejected on the ground of coercion.
Detecting coercion in assisted dying – a lesson from W. Australia, where after only 3 years of VAD, it causes 1.6% of all deaths.🧵
— The Other Half (@OtherHalfOrg) November 28, 2024
Official stats say doctors checking for 'feeling a burden' and for domestic abuse in people requesting assisted death bars *no one* from approval… pic.twitter.com/qmkKFXxlG2
This either suggests that this is not happening at all or that the safeguards (on which the Leadbeater Bill is modelled) are wholly inadequate at spotting coercion
Feeling like a Burden
Will the bill affect people who feel like a burden?
The bill opens a pathway to assisted suicide for those who feel they are costing their family too much money, that they are disrupting the life and happiness of their loved ones, or that they are draining resources from the NHS. Cara Bailey, Professor of End of Life care at the University of Birmingham, warns:
“The proposed safeguards are not sufficient to protect the vulnerable, particularly those who are older, frail and dependent on family or care services, some that may appear to be costing considerable sums of money and not experiencing a good quality of life. It is very likely that people will feel helpless and a burden, and it is most likely this group of people who will utilise the AD request.”
What is the evidence from other jurisdictions?
In all four jurisdictions that collect comprehensive statistics on this issue, a very large number of people opt for assisted suicide at least partly because they feel they are, or may become, a burden on others.
| Jurisdiction | Percentage citing feeling a burden as a reason for AS |
|---|---|
| Canada | 45.1 (Track 1), 49.2 (Track 2) |
| Oregon | 43.3 |
| Washington | 59 |
| Western Australia | 35.2 |
This rises significantly over time: in Oregon, from 12% in 1998, to 17% in 2010, to 43% today. In Washington, from 23% in 2009 to 59% today. In Canada, from 34% in 2019 to 45-49% today. (Western Australia has only collected statistics for two years.)
This may be because the existence of assisted suicide changes people’s sense of what is reasonable and expected. Prof Cara Bailey, quoted above, predicts that the impact of a new law will change society’s “view of the older population, the infirm and dying – no legal safeguard can stop that.”
As Hugo Rifkind has put it in a reflection on his mother’s two-decade battle with MS:
“Long-term illness, even in the closest, kindest family, comes with a heartbreaking amount of guilt…. And in the middle of it all, one person will know that they are the vector.
They are the reason their loved ones are stricken and sad, they are the reason bank balances are dwindling. Even in good times, they are the constant complication (‘F***!’ they will hear people cry, ‘does the restaurant have a ramp?’). Surrounded by people who love them, they will be beseeched, constantly, not to think in these terms. But they will.
… When an early death can be chosen, a continued life becomes a choice, too. Formerly the foremost victim of the catastrophe that has hit your family, you are now the perpetrator of it. You could have ended this yesterday, for everyone, but have chosen not to. And you will never again live a single day — and nor will they — when this is not the case”.
How common is feeling like a burden in Britain?
It appears to be a common feeling: One Savanta ComRes survey of older people found that “84% say it is difficult for older people to say they feel lonely because they don’t want to be a burden.”
Media representations and political debate have contributed to the problem: in 2020 the Centre for Ageing Better reported that “The repeated idea that older people will always be a ‘burden’, or that later life is an inevitable ‘drain’ on societal resources is hugely damaging.”
Care costs contribute to this. Average care home fees, for instance, are estimated at £4.640 for residential care, and £5,640 for nursing care.
Feelings of being a burden are also common among the terminally ill. According to a systematic review of the international evidence, “self-perceived burden is reported as a significant problem by 19-65% of terminally ill patients”.
According to polling from More in Common, 58 per cent of the public think it is “convincing” that elderly people may seek assisted dying “because they worry about being a burden” or are under pressure.
It is generally accepted that assisted suicide risks encouraging people to choose death as an alternative to “being a bother.” In the law lords’ ruling on the Debbie Purdy case, Baroness Hale said that in drawing up prosecution guidelines,
“the prime object must be to protect people who are vulnerable to all sorts of pressures, both subtle and not so subtle, to consider their own lives a worthless burden to others.”
Even the 2010 Falconer Commission, which was led by a prominent campaigner for assisted suicide and which supported a change in the law, acknowledged the point:
“The Commission accepts that there is a real risk that some individuals might come under pressure to request an assisted death if this option should become available, including … self-imposed pressures that could result from the individuals having low self-worth or feeling themselves to be a burden on others”.
So what protection does the bill offer?
The risk of people feeling like a burden is not mentioned in the bill. In fact, if someone who meets the diagnostic criteria asks for assisted suicide purely and simply because they feel like a burden, then the process allows them to receive the lethal drugs on that basis alone. The bill does not require people to have a good reason, only a “clear, settled and informed wish” (1 (2)).
Although the safeguards are intended to detect “coercion” and “pressure”, this does not include people putting pressure on themselves as a result of feeling useless and burdensome.
Kim Leadbeater has confirmed this in an interview with PoliticsHome:
While the bill does make coercion by another person an offence, it does not address the less direct version – ending your life because you feel like a burden, either to the NHS or to your family. Disabled broadcaster Liz Carr has called it “state-level coercion”.
Is the omission because Leadbeater felt it was impossible to reliably identify that feeling and thus exclude those people?
“It’s very difficult to legislate for emotions, isn’t it? That’s the point,” she replies. “That’s where the robust training programme and the code of practice would come into play… I know some people struggle with this, but we do have to put our faith in medical professionals and lawyers and judges who are making difficult decisions all the time.”
Choosing an assisted death because someone feels like a burden is not a reason, under her bill, for the medical practitioner not to sign off on their decision, however.
“The eligibility criteria are really clear. The person has to make the decision voluntarily; is not being coerced or pressured by another person into making it.
Pressure from within is, in short, an adequate reason for requesting assisted suicide. Importantly, this is true even if one has no other reason.
Leadbeater has expressed some unease on this point, telling the podcast the News Agents:
I appreciate that is a very delicate issue. I mean, there are people who have said to me – I think my mum would probably say this to me – surely being concerned about being a burden is a legitimate reason as well, in terms of… I know I wouldn’t want to be a burden, I can say that to you now in the clear light of day. But that’s very different to people saying, “I’m doing this because I feel like I’m being a burden.”
Leadbeater did not deny that, in her words, “being a burden is a legitimate reason”. She may have qualms, but knows that the text of the bill does not rule this out.
What have the bill’s supporters said?
They have rarely addressed the point, but some have argued that it would be a good thing. The Economist says:
“Someone may choose an assisted death for fear of being a burden… It would be better if people didn’t feel burdensome, obviously, but that does not stop them from making rational choices.”
Similarly, the Guardian’s Polly Toynbee wrote in November:
“As for being a burden, yes, many don’t want a humiliating dependency on others in their very last days – and for them, assisted dying is a reasonable choice.”
Baroness Hale, the former President of the Supreme Court and a supporter of the Bill, said:
“One of the things I find most difficult is that I don’t think it’s necessarily irrational for somebody to take into account the suffering their suffering is causing to the people dear to them, or the burden that looking after them is placing upon the whole community.
I wouldn’t call that “undue influence”, but it’s one of the questions I find most difficult about all of this. You know, obviously there’s duress, there’s financial abuse, there are all of those sorts of things that have got to be checked against, and there ought to be objective evidence of absence of that. But when it comes down to somebody thinking, “I don’t want to be a cause of others suffering,” that seems to me to be a reasonable thing for somebody to take into account.”
Capacity
Capacity v mental health
For someone to be eligible under the Bill they must have the capacity to ‘make a decision to end their own life’ (cl 1). Clause 3 defines capacity by reference to the Mental Capacity Act.
Whilst most lay people might assume that someone (say) having clinical depression will mean that they would not have the capacity to end their own life, that is not the case. As, in the words of Baroness Hale, ‘the threshold for capacity is not a demanding one.’
Therefore, for Elijah Granet, the sole focus on capacity is a major flaw in the Bill:
This is a grave and serious error, because it elides, either intentionally or by incompetence, the major distinction between mental capacity under the 2005 Act and the notion of mental health under the Mental Health Act 1983. The grave consequence, which must be justified by the Bill’s proponents, is that someone may have capacity for a decision to obtain assisted dying notwithstanding judgment partially impaired by a mental disorder.
The basic difference is that for someone not to have capacity they must be unable to
- to understand the information relevant to the decision,
- to retain that information,
- to use or weigh that information as part of the process of making the decision, or
- to communicate his decision (whether by talking, using sign language or any other means).
If they can do so but in an impaired and limited way they will still have capacity.
Granet’s conclusion about the lacuna of the Bill is shared by the Royal College of Psychiatrists:
Importantly, under the Bill as introduced, a person with a co-occurring mental disorder that is impacting their wish to end their own life would not necessarily be deemed ineligible; only those whose mental disorder was deemed to impair their capacity to make a decision to end their own life would be excluded.
This is not a merely theoretical risk, Granet points to a case where a woman suffering from a personality disorder which likely affected her judgement was held to have capacity to refuse medical treatment and thereby die:
In King’s College Hospital NHS Foundation Trust v C, MacDonald J considered a patient who wanted to discontinue her life-extending dialysis treatment because, inter alia, she ‘felt she did not have the mental health to continue with the treatment’, and was not satisfied with living merely a ‘tolerable’ life. The examining doctor suggested (in a tentative diagnosis limited by the patient’s ill-health) a personality disorder was present that interfered with her capacity. His Lordship was not persuaded by submissions from doctors that the patient was not solely deciding things by the catastrophic interpretation of events potentially resulting from her mental health; rather, Macdonald J saw many factors (of which this might be one) at work. The 2005 Act required strict causation and it would be difficult to establish the line between a personality disorder and being a ‘strong willed, stubborn individual with unpalatable and highly egocentric views’ (the patient potentially being both). Consequently, MacDonald J, while acknowledging that the patient’s potentially irrational decision ‘will alarm and possibly horrify many,’ nevertheless found capacity.
As Granet points out, when it comes to refusal of medical treatment this might very well be the right conclusion but with assisted dying the stakes are higher:
a prudent system with proper safeguards (such as the Bill’s proponents say they desire) would not risk the chance of someone with a mental health disorder impairing judgment access treatment to end her life, capacity notwithstanding. A cautious system should always lean towards denying treatment where there is any doubt. This is not analogous to any other case of existing medical treatment. It is not, in fact, treatment. It is the provision of death. The standards should be stricter.
Granet points out that the California End of Life Act adopts precisely that approach and he is concerned that the Bill does not follow this approach (viz the claim that the Bill has the toughest safeguards in the world):
One would think that the drafters of the Bill would have read models from jurisdictions often cited as successful, such as California. Had they done so, they would have seen the simple drafting that prevents a grave risk to the integrity of the safeguards in an assisted dying system. If the drafters are not reading and citing other jurisdictions (both as examples to follow and models to avoid), then that is immensely concerning and may explain why the Bill has so many flaws. Conversely, if the drafters read the Californian legislation, and chose not to follow it, that is also a bad sign. It indicates the safeguards are intentionally not as robust as international comparators.
Either way, this is a matter of immense concern. The absence of references to mental health in the sense of the 1983 Act is so disturbing that I consider it sufficient reason, absent future amendment, to reject the Bill.
This issue is particularly important as – according to the Royal College of Psychiatrists – many people who are terminally ill are likely to have their decision making abilities affected by a mental health condition:
A person who has a terminal physical illness is more likely to have a mental illness. Emotional distress is also common in people with life limiting illness and is associated with a wish to hasten death. In fact, it would be unusual for a person with a terminal physical illness to not be impacted mentally.
Assessment of mental disorder in those who are physically ill requires considerable medical and psychological expertise and should be carried out by professionals with sufficient training and experience in conducting such assessments. The difference between symptoms of mental illness and the psychological distress associated with terminal illness can be difficult to distinguish, as can ensuring that any decisions made are free from the influence of untreated mental health issues.
How do we go about making a capacity assessment?
The way the Mental Capacity Act works is by asking whether the person has capacity to make a particular decision (rather than capacity in general). The Bill specifies that this particular decision is the decision to end one’s own life.
As Professor Gareth Owen points out, we would be the first jurisdiction worldwide to adopt that test. But since ‘not living’ is not something anyone has experience of, it is not possible to make such an assessment directly:
So clinicians will have to rely on indirect ways to do so, and there is no real guidance on how to do this. So according to Professor Owen, especially when combined with the fact the Bill applies the presumption of capacity found in the Mental Capacity Act, the application of this test will either be light touch (so that it is not a real safeguard) or would require quite substantive High Court hearings
That conclusion is shared by the Royal College of Psychiatrists who state:
While we are of the view that a person’s capacity to decide treatment can be reliably assessed, an assessment of a person’s mental capacity to decide to end their own life is an entirely different determination.
Unhelpful read across of the Mental Capacity Act
There are two key principles of the Mental Capacity Act which the Bill imports and which are unhelpful in this context: (i) the presumption of capacity and (ii) the duty to assist people to reach capacity.
As the Legal Issues Memo puts it:
section 1(2) of the MCA provides that there is to be a general presumption of capacity: “A person must be assumed to have capacity unless it is established that he lacks capacity.”
It is entirely unclear how this definition (incorporated into the Bill by s 3) interacts with the requirement that the two doctors “ascertain” whether “in their opinion” the patient has capacity (see clauses 7 and 8) and the requirement in clause 12 that the judge is “satisfied” that the patient has capacity. The most probable meaning (as the Bill clearly intends to apply the MCA) is that they have to be satisfied, given the general presumption of capacity, i.e. they should declare that the patient has capacity unless it has been made clear that the patient does not.
Notably, if a doctor is in doubt about capacity, they are allowed to obtain an opinion from a psychiatrist, but they are not required to do this: see clause 9(3)(b) of the Bill. The Explanatory Notes say that the lack of a requirement is because the doctor might decide that the patient lacks capacity without consulting a psychiatrist, but this is not what the Bill says. Read together with clause 3, clause 9(3)(b) appears to mean that a doctor who has doubts as to capacity but not sufficient doubts as to “establish” a lack of capacity, ought to sign the form and declare that they are satisfied.
Finally, there is the duty to assist. Its application could lead to a real perverse incentive whereby the patient is made to feel, during the capacity assessment, that they are a burden on others:
Section 1(3) of the MCA states that “A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success…” What this generally means (see the MCA Code of Conduct, chapter 3) is that if, for example, someone with learning disabilities wants to make a major decision (such as where to live) they should be assisted by people explaining to them the various major implications (the “information relevant to the decision” in the sense of the MCA Guidelines) and helping them towards a “general understanding of the likely consequences”.
The effects of this principle on the question of whether or not to ask to die could be both serious and counterintuitive. It would appear to require a doctor dealing with a patient with e.g. dementia, or learning disabilities, to try to explain to them both the implications of continued treatment and natural death as against death by suicide, but also the implications for other people. The cost saving to a family, e.g., or even to a hospital, meets the threshold of being a “likely consequence” of assisted suicide. This appears to mean that the doctors would be required to suggest to a patient of doubtful capacity that their death would relieve pressure on the ward and on their family. As noted in the January 2023 report for the Health and Social Care Committee at [20], it is genuinely unclear whether, and how, the support principle ought to apply in this context, but the Bill as drafted simply incorporates it because it incorporates the MCA meaning of capacity.
What have the Bill’s proponents said in defence?
As far as we can establish they have not said anything about why they went for capacity rather than impairment based on mental illness. Clause 30(1)(a)(ii) provides that the Secretary of State may (not must) issue a Code of Practice on the issue of “recognising and taking account of the effects of depression or other mental disorders (within the meaning of the Mental Health Act 1983) that may impair a person’s decision-making;”
Such Codes of Practice must be taken into account (cl 30(6)) but “failure to do so does not of itself render a person liable to any criminal or civil proceedings but may be taken into account in any proceedings.” (Cl 30(7)).
Jake Richards MP, one of the backers of the Bill, has indicated that he is “sympathetic to the notion that the presumption as to capacity should change in the Bill”
Terminal Illness
Is the Bill restricted to those at the very end of life?
Only in theory. Patients qualify if their death “can reasonably be expected within 6 months” (2 (1) (b)). This is a very broad category.
Professor Paddy Stone, former head of the Marie Curie palliative care research department at University College London, says:
“My research demonstrates that there is no reliable way to identify patients with less than six or twelve months to live…at least, no method that would be reliable enough to act as any sort of ‘safeguard’ for the proposed assisted dying legislation.”
Stone’s systematic review of 6,495 cases over 16 years found that, when doctors predicted 6-12 month survival time, in 54 per cent of cases the patient lived longer.
According to data on benefits claimants from the Department of Work and Pensions, of those given six months to live, one in five are still alive three years later.
Prof Irene Higginson of KCL summarises the evidence:
“All the studies from this country and others show that estimating six months left to live is extremely difficult and not that accurate. The science isn’t that well developed and I’m not sure it could be, because individuals vary so much.”
Oncologist Prof Chris Parker of the Royal Marsden predicts: “I have little doubt that some patients would choose assisted suicide if it was legal, because they were told they had less than six months to live, but in truth, if they had not had assisted suicide, would have lived for years and enjoyed a good quality of life, because I’ve seen patients like that.”
There are countless stories of this occurring. In the Second Reading debate, Mary Kelly Foy MP said:
“My daughter Maria lived her life with severe disabilities and health conditions. Since her birth, we were told many times that she might have only six months to live. She lived for 27 years … I am filled with dread and fear about what might happen to people like Maria.”
Does the Bill require doctors to be confident in their prediction?
No. The precedent is the guidelines for benefits claimants at the end of life (previously defined as 6 months, now as 12). Here the government advice does not require doctors to confidently expect death within the time limit: only to say that “it would not be a surprise if their patient were to die within 12 months.”
Would the definition exclude those with disabilities or mental illnesses?
The bill states: “a person is not to be considered to be terminally ill by reason only of the person having…a mental disorder… [or] a disability” (2 (3)) (emphasis added).
However, the definition is broad enough that it will include some people, because of the knock-on effects of disability or mental illness. In the words of the Equality and Human Rights Commission, the Bill
“there is not always a clear line between terminal illness and disability. Disabled people can also suffer from terminal illness, and illness may itself amount to a disability. Parliament should note that the exclusion of disability as a standalone criterion for accessing assisted dying does not mean that the rights of, and protections for, disabled people do not need to be considered in relation to this bill.”
As for mental illness, the Royal College of Psychiatrists (RCPsych) has warned:
“The wording of the Bill could also be interpreted to include those whose sole underlying medical condition is a mental disorder. While anorexia nervosa, for example, does not itself meet the criteria for terminal illness as it is not an ‘inevitably progressive illness, disease or medical condition which cannot be reversed by treatment,’ its effects (malnutrition) in severe cases could be deemed by some as a terminal physical illness, even though eating disorders are treatable conditions and recovery is possible even after decades of illness.”
For this reason, several eating disorder experts – including the current chair of the RCPsych Eating Disorders Faculty, have signed a joint letter saying that the Bill should be rejected as it “fails the public safety test.” They note that in Oregon, “officials interpret ‘terminal illness’ as any condition expected to cause death within six months if untreated”. There are at least 60 cases around the world of people with eating disorders dying through assisted suicide, in jurisdictions where this is legal.