Abstract
BackgroundIn May 2013 a new Assisted Dying Bill was tabled in the House of Lords and is currently scheduled for a second reading in May 2014. The Bill was informed by the report of the Commission on Assisted Dying which itself was informed by evidence presented by invited experts.This study aims to explore how the experts presenting evidence to the Commission on Assisted Dying conceptualised mental capacity for patients requesting assisted suicide and examine these concepts particularly in relation to the principles of the Mental Capacity Act 2005.MethodsThis study was a secondary qualitative analysis of 36 transcripts of oral evidence and 12 pieces of written evidence submitted by invited experts to the Commission on Assisted Dying using a framework approach.ResultsThere was agreement on the importance of mental capacity as a central safeguard in proposed assisted dying legislation. Concepts of mental capacity, however, were inconsistent. There was a tendency towards a conceptual and clinical shift toward a presumption of incapacity. This appeared to be based on the belief that assisted suicide should only be open to those with a high degree of mental capacity to make the decision.The ‘boundaries’ around the definition of mental capacity appeared to be on a continuum between a circumscribed legal ‘cognitive’ definition of capacity (in which most applicants would be found to have capacity unless significantly cognitively impaired) and a more inclusive definition which would take into account wider concepts such as autonomy, rationality, voluntariness and decision specific factors such as motivation for decision making.ConclusionIdeas presented to the Commission on Assisted Dying about mental capacity as it relates to assisted suicide were inconsistent and in a number of cases at variance with the principles of the Mental Capacity Act 2005. Further work needs to be done to establish a consensus as to what constitutes capacity for this decision and whether current legal frameworks are able to support clinicians in determining capacity for this group.
Highlights
In May 2013 a new Assisted Dying Bill was tabled in the House of Lords and is currently scheduled for a second reading in May 2014
Of the 15 organisations represented at the Commission, four stated a position in favour of a change in the law to allow assisted suicide, two stated a position against, one stated a position of neutrality and eight did not state a position
Of the three submissions that did not refer to mental capacity for patients requesting assisted suicide or related issues, one was from a medical regulatory body which focussed on the current status of assistance of suicide as unlawful and did not enter into discussion regarding safeguarding including mental capacity [submission 20], one was from a medical defence organisation where the discussion focused on doctors’ concerns around the 2010 Director of Public Prosecutions guidance on assisted suicide [submission 14], and one focused on current government policy on end of life care [submission 18]
Summary
In May 2013 a new Assisted Dying Bill was tabled in the House of Lords and is currently scheduled for a second reading in May 2014. This study aims to explore how the experts presenting evidence to the Commission on Assisted Dying conceptualised mental capacity for patients requesting assisted suicide and examine these concepts in relation to the principles of the Mental Capacity Act 2005. The Commission published its findings in early 2012 entitled ‘The current legal status of assisted suicide is inadequate and incoherent’ and recommended the provision of the choice of assisted dying for mentally competent adults with terminal illness [9]. The Commission proposed eligibility criteria to be met in order to proceed with a request for assisted dying These comprised (i) the presence of terminal illness; (ii) that the decision should be voluntary; and (iii) that “(t)he person has the mental capacity to make a voluntary and informed choice, and the person’s decision making is not significantly impaired as a result of mental health problems such as depression”
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