From Daily Telegraph
Predictably, Lord Falconer’s privately funded Commission on Assisted Dying is proposing that the law should be changed. With the exception of one member, the group is advocating the legalisation of assisted suicide for those who are terminally ill. As their definition sweeps up any seriously ill person who might die within 12 months, they are, in reality, supporting physician-assisted suicide for those approaching the end of life.
All previous proposals to change the law, including this one, have been clear that anyone qualifying for help to die must not lack mental capacity. The trouble is that there seems to be little real understanding of what mental capacity means or how to establish such an understanding.
Mental capacity is a legal term meaning that someone is truly capable of making a specific decision – in this case that they want to die. The ground rules were set out in the Mental Capacity Act of 2005. Judgments of mental capacity have to be decision-specific: a person may be judged to have the capacity to make some decisions but not others, such as those with serious consequences. Deciding to end your life falls into this latter category.
So let us look at some of the things that Lord Falconer was told by people with experience of assessing mental capacity, as documented on the commission website. Professor Matthew Hotopf of King’s College London’s Institute of Psychiatry warned against one-off psychological assessments for determining suitability for assisted dying. What was needed was to assess the stability of such a wish over time. Similarly, the Mental Health Foundation believed that “you couldn’t just assume that what you heard on one day was actually representative of the person as a whole”.
Dr Martin Curtice, a consultant in old age psychiatry, told the commission that there was “a big overlap between depression and terminal illness and chronic physical disorders”. The presence of such depression “does not automatically mean you lack capacity, but it’s highly likely to influence your decision-making”. The British Psychological Society said “it’s incredibly difficult to assess people with a life-limiting illness for depression and anxiety”.
Lord Falconer and his associates seem to believe that assessing mental capacity can be left safely in the hands of the patient’s GP and specialist. Indeed, they write that “the most important safeguard in any assisted dying regime would lie in the relationship between the patient and their doctor”. But with today’s busy, multi-partner urban practices, how many GPs – not to mention hospital consultants – know their patients well enough to make such complex assessments? The unwillingness of most doctors to participate in any assisted dying cases may result in these patients being assessed by a handful of doctors who know little of them beyond their case notes and who are predisposed to see a request for assisted dying as a rational response to terminal illness. This is what has happened in Oregon, where “physician-assisted suicide” has been legal since 1997 and where there is a very low rate of referral for psychiatric assessment. As many as one in six of those who have taken their lives with lethal drugs supplied by doctors in Oregon had, researchers discovered, been suffering from undiagnosed clinical depression.
Nor would many psychiatrists – I write as one myself – be comfortable with the idea of assessing patients for suitability to receive lethal drugs. We assess mental capacity for the protection and treatment of our patients, not to clear the way for them to commit suicide. We also know that reliable capacity assessment can only be made over time and involves getting to know patients and what lies at the root of their problems.
In its 2006 statement in response to the Assisted Dying for the Terminally Ill Bill, the Royal College of Psychiatrists said that it was “deeply worried about the likely effects of the Bill” and recommended that, if assisted suicide were to be legalised,
“…there should be two specialist assessments, spaced at least two months apart with offers of treatment for both depression and pain, so that there is time for the suicidal ideation to abate – since the ending of life is irrevocable”. Even with such safeguards in place, there would be no guarantee that a patient’s best interests had been protected. Besides, and far more importantly, these recommendations assume that the trusting relationship between doctor and patient, which is so key to clinical decision-making, would survive such a change in the law. Most proposals advocating assisted dying assume an ideal world – one of seriously ill people who are completely clear about ending their lives, of close doctor-patient relationships and of relatives who are invariably “loved ones”. But the real world isn’t like that. Terminal illness often brings significant emotional stress, many doctors cannot know their patients as well as Lord Falconer and his group seem to envisage, and some families are less than loving and caring. Seriously ill people need help to live, not help with suicide. They need compassionate care and effective pain relief – let’s campaign for those.
The issue is not about legalising a right to die: death will come to us all, whether we like it or not. It is about legalising the assisting of people to end their lives. Yet most of those in the professions that are expected to be the assisters have serious reservations. This is not professional conservatism. As Dr Curtice put it: “This is a serious business, because ultimately someone’s life is on the line”.
Baroness Hollins is a past president of the Royal College of Psychiatrists and president-elect of the BMA