The Bill’s approach to capacity is seriously flawed. A central claim by those putting forward this legislation is that people who lack capacity will not be assisted in their suicide: but the approach taken in the Bill takes no account of the existing, and well established, approach to capacity in UK law. The failure to deal with capacity in its actual meaning means that the Bill has both some very major loopholes and some startling consequences, such as the perverse implication that a doctor might be required to explain to a learning disabled or dementia suffering patient how their death might save their family money or relieve pressure on the hospital.
Clause 3 of the Bill simply states that the meaning of capacity in this legislation will be the same as in the Mental Capacity Act 2005 (“MCA”). A key issue, relevant to this Bill, is that under the MCA the general instinct is to agree that someone does have capacity, even if that sometimes needs assistance (such as carefully explaining the implications of the decision to someone who has dementia). This is because the aim of capacity legislation is to allow people to have control of their lives to the greatest extent compatible with their safety, while avoiding their vulnerability being exploited. It is not at all clear that this approach fits well with the question of suicide. There are three major areas of difficulty:
- What does capacity to decide whether to end your own life mean?
- The statutory presumption of capacity makes it unlikely that doctors and courts would find there is no capacity even in cases of serious doubt;
- The principle of supporting decisions, which perversely could require doctors to raise with a patient the financial impact on their family or the NHS of their continued treatment.
A report covering these issues was produced in January 2023 for the purposes of the Health and Social Care Commitee inquiry into assisted dying.1
The first major difficulty is that capacity is “decision-specific” (see e.g. York Council v C [2013] EWCA Civ 478) and, as set out in the MCA Code of Practice, involves asking the following questions:
- Does the person have a general understanding of what decision they need to make and why they need to make it?
- Does the person have a general understanding of the likely consequences of making, or not making, this decision?
- Is the person able to understand, retain, use and weigh up the information relevant to this decision?
Doctors and courts have very little experience of working out what level of “general understanding” and “relevant information” is appropriate for deciding whether or not to die. While there might be some guidance from cases on refusing treatment, this is to a great extent uncharted territory.
Indeed, someone who is clinically depressed might well still be regarded as having capacity to make a decision about whether to commit suicide. After all, depressed patients do have capacity to take most decisions relating to their medical treatment and might still have the ability to consider the relevant information and have a general understanding of the likely consequences of asking for an assisted suicide. It would be fact-specific, and would involve clinical (but not just clinical) judgement in each case.
The second major difficulty is that 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.
The third major difficulty is the principle of supporting a person’s decisions. 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],2 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.
In general, the Bill fails to grapple with UK law on capacity as it actually exists, presenting some very serious problems in application.