In the oral evidence sessions, expert witnesses questioned the suitability of the Mental Capacity Act to inform doctors’ assessments in Assisted Suicide/Assisted Dying.

Alex Ruck Keene KC, a barrister specialising in mental capacity, offered a clear explanation of some of the problems with its use in the Terminally Ill Adults Bill. He said “The Mental Capacity Act works more or less in the healthcare context, because every time we reach the view that someone cannot make a decision, we have an alternative—we can think about best interests. What we are asking the idea of mental capacity to do here is different, because there is no suggestion that, if you cannot support someone to make a decision, you will ever make a best interest decision in their name to assist death. It is also not obvious that the idea of a presumption of capacity should apply. If I doubt that you have capacity to make the decision to take your own life, or end your life, but I cannot prove it, is it logical or are we required to proceed on the basis that you do?”

This was compounded by evidence from Dr Rachel Clarke, a palliative care doctor, who said “The fundamental principle is always that, by default, the patient has capacity unless there is clear evidence that they do not. We presume that patients have capacity.”

The combination of the presumption of capacity and no clear best interest alternative for the doctor will leave them in an uncertain situation. As the judgement is only required to be a balance of probabilities, will this test be robust enough?

Dr Clarke went on to say that “The elephant in the room with all of this is the capacity assessments. I would suggest that anybody who pretends that those assessments are easy and routinely done well in the NHS has not got enough experience of observing that happening. I teach capacity assessments to doctors and medical students, and it is often the case that they are very poorly conducted. The doctor often does not understand the criteria for assessing capacity. That is if it happens at all. Sometimes, a paternalistic doctor will decide that a patient is dying, and we should stop their antibiotics because they are clearly now at the end of their life. They have a chat with the family, who say, “Yes, we agree,” and nobody talks to 82-year-old Mrs. Smith and asks her what she feels about it, because they assume that she does not have capacity because she is old. I see that regularly. Sometimes, a palliative care team will intervene in those situations, because the professional and legal framework that is meant to guide this practice is just not happening. It is a very fraught and tricky area.”

Dr Sarah Cox, President of the Association for Palliative Medicine, spoke about how capacity is not an absolute as it can change in a patient, and how difficult this is to continually assess. Underlining the point about the challenge of assessing capacity in palliative care scenarios.
Finally, Professor Gareth Owen, a professor of psychological medicine, ethics and law, and honorary consultant psychiatrist at the South London and Maudsley NHS Foundation Trust spoke about how Assisted Suicide/Assisted Dying would be an entirely new scenario for the operation Mental Capacity Act.

“I have looked at mental capacity a lot in research, and there is no experience of the decision to end one’s own life. It is outside the experience of the Mental Capacity Act, the Court of Protection, the associated research and practitioners on the ground. The reference to the Mental Capacity Act in clause 3 puts you into an area where there is no experience of the central capacity question under consideration. It is very important that Parliament be clear-eyed about that.”

From the evidence a picture emerges. The Mental Capacity Act was not drafted with existential questions like Assisted Suicide/Assisted Dying in mind. The bar that the Act sets is too low and it is possible to have a mental impairment (such as depression) and still have capacity. Capacity is also assumed in the first instance and you have to prove that someone does NOT have capacity in order to not give treatment. Unwise decision making does not prove lack of capacity. Supported decision making also does not undermine capacity. It is done on a balance of probabilities.

Due to this, Sarah Olney, Liberal Democrat MP for Richmond Park, tabled Amendment 34 which would have created a new more appropriate test of ‘ability’ rather than just ‘capacity’. This would create a stricter and more specific test for doctors to apply to work out if a request for Assisted Suicide/Assisted Dying is being legitimately made. It would add clarity for doctors and confidence for relatives. The concept of ‘ability’ would be based on ‘capacity’ with further tests to ensure it is appropriate for Assisted Suicide/Dying to be determined by the Secretary of State and confirmed by Parliament.

Arguments against this amendment centred on the increased complexity of adding a new concept into medical practice and on the contention that the Mental Capacity Act was suitable.

This Amendment was voted down by the committee.

As the former CEO of a prison charity, Mr Kruger spoke about the additional responsibilities that the state has towards prisoners, the intrinsic absence of autonomy they possess and the rights which are deprived of them due to their breaking the law.

He argued that “The case law of our courts and the European Court of Human Rights recognises the special duties of the state to prevent suicide in prisoners. Prisoners are an ageing and highly vulnerable population with less access to good care. The state is responsible for the delivery of healthcare in prisons. Prisoners are wholly in the care of the state. I suggest that, given their vulnerabilities and their dependence on the state, offering assisted dying to prisoners would be fraught with hazard. The risk of things going wrong is just too high.”

Similarly he argued that “autonomy is not just in the mind. It is in someone’s circumstances; it is determined by the options before them. I challenge colleagues to consider whether someone who is homeless or a prisoner can genuinely be seen as autonomous enough to make a decision of this kind. For someone who is homeless or a prisoner, surely it is doubtful that the choice to go for assisted dying can ever be a fully free one.”

His amendments were contested by Kit Malthouse who argued that the definitions were unclear and that denying these groups this ‘service’ would be unfair. He said “We do not deny medical services to prisoners because they are prisoners. We believe it is a sign of a civilised society that they access the same healthcare as everybody else through our national health service. The same is true of those homeless groups.”

Due to the clear lack of support from the committee, Mr Kruger withdrew his amendments instead of pushing for a vote due to limited time.