Everyone would agree that important decisions require an understanding of what is involved and an ability to weigh all the relevant information. Most people would also agree that, the more serious the decision, the greater the level of assurance needed that the person making it knows what he or she is doing, is not acting impetuously or in a state of depression and is not being influenced by others.
A decision to take your own life has to be at the far end of the spectrum of gravity. It is not surprising therefore that those who want to see the law changed to license physician-assisted suicide recognise that anyone seeking such assistance has, in the words of Lord Falconer's Private Member's Bill, "the capacity to make the decision to end their own life".
However, stating a requirement for capacity and establishing that it exists are not the same thing. In a paper published today Dr Claudia Camden-Smith, a psychiatrist working in Hampshire, explains in layman's terms what is involved. Taking the 2005 Mental Capacity Act as her starting point, she examines the difficulties of assessing capacity in someone who is terminally ill and then focuses on the problems which would confront any doctor who was asked to assess a terminally ill patient's capacity with a view to clearing the way for assisting his or her suicide. These problems centre not only on the patient being assessed but also on the doctor doing the assessment. "Psychiatrists and other doctors assessing mental capacity are not automata", Dr Camden-Smith writes. "They are human beings who come to the task with views and values of their own. Such personal views may, however unintentionally, colour the assessments that are made".
Dr Camden-Smith notes, as a number of Peers observed in a critique of Lord Falconer's Bill published last month, that the Bill sets no minimum requirements for doctors making such assessments, an omission which she describes as "surprising and disquieting" and as "a serious structural weakness". The Bill's simple requirement that two doctors should "be satisfied" as to capacity is, she writes, "superficial".
Dr Camden-Smith concludes:
"Psychiatrists and other doctors assess mental capacity, within a statutory framework, with a view to protecting patients from harm. It is a challenging enough process at the best of times. To ask them to make such assessments as part of a process which has suicide as a potential outcome is to take mental capacity assessment into completely new territory".
Dr Camden-Smith's paper should be read by anyone who thinks it is possible to 'check' for mental capacity in the manner of giving a car an MoT test. It is not. Mental capacity assessment is a complex process and, in the case of someone seeking licensed assistance with suicide, it is one where very high levels of assurance would be needed. Lord Falconer's Bill ducks this issue by promising "codes of practice" at some future date. "While such an approach may be appropriate in some areas of legislation", writes Dr Camden-Smith, "its suitability in situations, such as this, where the lives of vulnerable patients are at issue is highly questionable".