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Provision for mental capacity in Assisted Dying Bill 'not robust enough'

New research suggests that the Assisted Dying Bill for England and Wales, due for a second reading in May 2014, is not robust enough in its definition of mental capacity, and therefore may not sufficiently protect patients. 

The authors, from King’s College London’s Institute of Psychiatry, call for further work to be done to establish a consensus on how mental capacity should be assessed for people requesting assisted suicide.

The Commission on Assisted Dying was established in 2010 in order to consider whether the current legal and policy approach to assisted dying in England and Wales was fit for purpose. In early 2012, after gathering expert evidence, the Commission concluded that every patient requesting assisted suicide should be assessed for mental capacity using the Mental Capacity Act 2005. The Assisted Dying Bill, which was informed by the report from the Commission, was tabled in the House of Lords in May 2013 and is currently scheduled for a second reading in May 2014.

Depression is the most likely reason why patients with a terminal illness may not have mental capacity. Approximately 19 percent of patients in palliative care have major depression, and 35 percent have some symptoms of depression. 

In this new study, published in BMC Medical Ethics, researchers analysed the evidence submitted to the Commission – these included 36 transcripts of oral evidence and 12 written submissions from medical, social care and legal professionals, people with disability, their carers and family members amongst others. 

Whilst there was agreement about the importance of mental capacity as a central component of the proposed legislation, the concept of ‘mental capacity’ was inconsistent. 

Dr Annabel Price, lead author of the study who led the research whilst at Institute of Psychiatry (IoP) at King’s College London, says: “Analysis of the transcripts reveals that there is no consensus amongst experts on what mental capacity is, what level of capacity is acceptable or how it should be assessed. We found that there were varying interpretations of the use of the Mental Capacity Act with respect to assisted suicide, implying that the proposed framework does not provide a strong enough safeguard for patients. As the Bill stands, decisions on whether or not patients should be granted assisted suicide will not be consistent. This is not robust enough for patients.”

In addition, a report by the House of Lords Select Committee, published in March 2014 was highly critical of how clinicians are applying the principles of the Mental Capacity Act.

Professor Matthew Hotopf, senior author of the study, also from the IoP at King’s, says: “According to the proposed Assisted Dying Bill, mental capacity determination for patients will be based on the Mental Capacity Act. However, this piece of legislation is frequently poorly understood by doctors  and not working as intended in clinical practice.  Mental capacity appears to have many different meanings and the concern is that it would not be the safeguard which proponents for a change in the law claim it to be.”

Paper reference: Price, A. et al. ‘Concepts of mental capacity for patients requesting assisted suicide: a qualitative analysis of expert evidence presented to the Commission on Assisted Dying’ is published in BMC Medical Ethics. doi:10.1186/1472-6939-15-32

Read Dr Price's blog, 'Mental capacity may not be a sufficiently robust safeguard in the Assisted Dying Bill' on BioMed Central. 

For further information, please contact Seil Collins, Press Officer, Institute of Psychiatry, King’s College London – / (+44) 0207 848 5377