Assisted Dying Bill [HL]

Debate between Baroness Butler-Sloss and Lord Tebbit

Friday 7th November 2014 Lords Chamber

[Lord Tebbit]

Perhaps the noble and learned Baroness can help me with that question of capacity. There are some elements, such as depression, which come and go at various levels. A depressed person may sometimes have capacity and sometimes not. An alcoholic may not have capacity but, on the other hand, he may have it when he sobers up for a while. The same applies to a drug addict, who may or may not have capacity according to how much he has taken. I find that rather difficult to judge against the more permanent and unchanging stages of capacity and incapacity; for example, in a patient with Down’s syndrome, whose capacity would be limited but probably more or less unchanging, or somebody in the later stages of Parkinson’s disease, where that mental capacity was beginning to go but could only get worse. I am a little puzzled as to how one would make the decisions between those varying states.

[Baroness Butler-Sloss]

If I may be anecdotal, as other noble Lords have been, my mother died of multiple sclerosis in her early sixties. There was a point at which I, as a young lawyer, realised that she no longer had, in my view, the capacity to make decisions. However, that was at a very late stage of her illness.

If the doctor is not satisfied because someone is a drug addict or has been an alcoholic or has, for instance, a high degree of anorexia as a young person and is saying that they want to die, those are points at which a doctor should be saying, “I’m not quite certain whether he or she has capacity”. That is why I suggest in my amendment that, unless they are satisfied, they should pass it on to someone who has the expertise, who would then, as a psychiatrist, look at whether the person actually has the capacity. Okay, we are talking about someone with three to six months to live but, if they do not have the capacity to make this incredibly important decision, they should not be allowed to do so. That is how I would see it, in answer to the noble Lord, Lord Tebbit.