Terminally Ill Adults (End of Life) Bill (Eighth sitting)

Lewis Atkinson Excerpts

Committee stage
Tuesday 11th February 2025 Public Bill Committees

I will quickly observe the point made by witnesses about what is called fluctuating capacity, which is inherent in certain conditions, particularly dementia. The point about a decision for an assisted death is that, once someone has made it, they cannot unmake it. By the way, that is a key distinction between requesting an assisted death and declining treatment: one can always go back on a decision to decline treatment, but not on a decision to have an assisted death. Capacity fluctuates, particularly with dementia.

[Lewis Atkinson (Sunderland Central) (Lab)]

Can I clarify what the hon. Member is proposing by introducing a separate test for people accessing assisted dying? Say an individual is on a respirator at the end of their life. Under what the hon. Member is proposing, if they said, “Please turn this respirator off; I want to die”, he thinks that it is appropriate for capacity to be assessed under the Mental Capacity Act 2005, but somehow he thinks that that person should have a different legal test if they said, “I want to take a drug to end my life,” knowing full well that they would have exactly the same result.

[Danny Kruger]

The simple answer is yes, I do. I think it is a causatively different decision. In fact, this whole Bill entails causative differences between those decisions. I will come to that point more in a moment.

Professor Owen made an important point to us regarding capacity. He said:

“You might be talking about a kind of cognitive impairment that has not reached the threshold for a diagnosis of dementia; you might be talking about a kind of mood problem or an anxiety problem that is sub-clinical; or you might be talking about a level of intelligence that is not clinically a learning disability.”

He talked about

“pressure within a family, let us say, which is often not malign in its intentions, but it exists.”

and about situations

“where there is an impairment and also an interpersonal pressure”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 234, Q297.]

Although we are not talking at this point explicitly about coercion and family pressure, the issues around capacity and coercion are nevertheless intertwined, and it is often very difficult for doctors to determine what is really going on. Again, the challenges around capacity are intense.

The point has been made by hon. Members that under clause 9(3)(b), if the second doctor in the process is in doubt about capacity, they “may” refer the person to a psychiatrist, but the clause in fact refers to “a registered medical practitioner” who “has experience of” the assessment of capacity—so not a psychiatrist, but just someone who has experience, whatever that means, of the assessment of capacity. It is not totally obvious what that means. Amendment 365 has been tabled overnight by the hon. Member for Bath (Wera Hobhouse) which would mean that both the first and second doctor, and indeed the court, if we are allowed to have a court process, “must”—not “may”— refer the person to a psychiatrist. That is not just if they are concerned about capacity, by the way. The court, or whoever it is, must conclude that there is no

“impairment of judgment arising from a mental disorder or other condition”.

I very much welcome that amendment and I hope that we will pass that in due course.

[Danny Kruger]

That is excellent news. For the first time so far in the course of this debate, we have a strengthening of the Bill from the hon. Member. That is great news—we can chalk that up as a victory, and as good sense breaking out. I am grateful for that. Let’s see what more we can achieve.

The point that I want to make is that we are in the foothills of understanding the effects of depression, cognitive impairment and social pressure on the decision to end life. That is a point made strongly by a series of witnesses to us in both oral and written evidence: we are still very much in the early stages of understanding how capacity interacts with mental illness, disability and coercion. Then, into the mists of vagueness, we are proposing to insert this single clunking, clumsy question: “Is there evidence of incapacity?” I strongly suggest that the abuse of the Mental Capacity Act that we are seeing here is not a way of simplifying the process of ensuring that there are a small number of strong safeguards; it is a great complication of the process and introduces more complexity, as we see from the many additional things that clinicians should consider. That is in direct contradiction to the principle of the Mental Capacity Act, which simply asks the question: “Is there capacity?”

The point has been made that there is more to the Mental Capacity Act than simply the question of capacity. There are concepts of best interests and supporting decision making. As the hon. Member for Penistone and Stocksbridge suggested, it is a cumulative process. The Mental Capacity Act entails not only the question of capacity but the consideration of best interests and whether we are supporting the decision making of an individual. I am not sure how those terms apply in a situation of assisted dying. It is not similar or comparable to the sorts of decisions that the MCA is intended to apply to.

[Lewis Atkinson]

This touches on some of the evidence given by Mr Ruck Keene, particularly around the best interests decision. From my reading of this legislation, it is very clear that there is no possibility for someone to make a decision on behalf of or in the best interests of anyone else. As the hon. Member for Solihull West and Shirley mentioned earlier, there are a number of exclusions in the Mental Capacity Act. For example, someone is not able to make a best interests decision on someone getting married or adopting. Does the hon. Member agree that in order to have a guarantee, without any doubt, on the best interests point, an amendment could be included to clarify that nothing in the MCA would allow a best interests decision under this legislation?

[Danny Kruger]

That is absolutely right. I do not think best interests can apply in this case. That is why the Mental Capacity Act is being abused. As the hon. Member for Penistone and Stocksbridge said, it is supposed to be cumulative. We are supposed to consider all aspects of the Mental Capacity Act, and best interests should be part of a consideration—but how on earth does one make a best interests decision about somebody deciding to commit suicide? The hon. Gentleman is right that best interests are excluded in the Bill, so the Mental Capacity Act is not being used, except for this most basic, low-level bar to cross, which is the capacity decision.