About the Assisted Dying Bill and the accompanying debate: and how it links to the concept of Mental Capacity

Later this week, another 'assisted dying' Bill returns to parliament, this time from the MP Rob Marris. He was quoted in yesterday's Observer (page 10) as saying:

"Those who believe that ending one's life is always wrong should not deny choice to those of us who do not share their beliefs".

I am in the same 'pro camp' as Rob Marris, although I have just sent him an e-mail. objecting to the 'safeguards' being inserted into the Bill.

The Observer published an Open Letter to the MPS from our Faith Leaders yesterday (page 46 I think) and Justin Welby was writing on page 41 - I wish to analyse some of the things written by Justin Welby.

He wrote "While it is not a crime in the UK for someone to take his or her own life, we recognise that it is a tragedy and we, rightly, do all that we can to prevent suicide".

I agree that it is tragic that some people are driven to consider or commit suicide, but we DON'T 'do ALL that we can to prevent suicide'. Our law, does NOT permit that. I pointed to the best available proof of this, in a BMJ piece:

http://www.bmj.com/content/350/bmj.h2883/rr-2

I pointed out in that piece:

'There was a report in The Independent (newspaper), June 24th 2013 (carried on pages 1, 6 and 7), when Sir Mark Hedley, a
recently-retired judge, explained that 'I decided at 10pm that a suicidal man with mental health problems could be allowed to die of an overdose rather than order doctors to pump his stomach ... I decided he had capacity [to refuse treatment], so he died that night. That's exactly what he wanted to do... That one never found its way into any report of any sort'. Sir Mark was the out-of-hours Court of Protection judge.'

Our Law, has settled on the idea that mentally-capable people make their own decisions, and there is a logically-implied 'sequence' to this. You must first - without asking a patient about the actual decision he is considering - establish that he lacks mental capacity, if you are claiming that (and be clear - the Mental Capacity Act says that mental capacity MUST BE ASSUMED PRESENT UNTIL 'PROVEN ABSENT'), and then you let the patient make his decision.

It isn't rational, or consistent, to imply that a patient's mental capacity can be questioned 'because his decision is wrong' - the whole point, is that 'the patient's decision cannot be wrong, because it is his decision to make'. This is not - when you apply the law to suicidal patients - a discussion about 'can suicide be rational' (which I've seem much discussion of by clinicians) because the issue is simply 'can suicide be legal' and Mr Justice Hedley made it plain that it can be: mentally-capable patients are self-determining, full stop. The consequences of that, are hard for clinicians to accept - but they seem irrefutably true, logically:

http://www.bmj.com/content/350/bmj.h2877/rr-7

Justin Welby also wrote "Currently, those who act wholly out of compassion in assisting someone they know to end their life will not face prosecution".

That is [FAPP - 'for all practical purposes'] true for family and friends who assist a suicidal EoL patient - but it is not true for professionals, who are much more likely to be prosecuted.

But, it is also 'weird' that 'acting solely out of compassion' is a defence for assisting a suicide, but it is an ADMISSION of GUILT on the part of a Mental Capacity Act best-interests decision-maker. Section 4(5) of the MCA states that:

'Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.'

And when the Code of Practice interprets that section of the MCA, it comes up with (section 5.31):

'The decision-maker must make a decision based on the best
interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person's death for whatever reason, even if this is from a sense of compassion.'

The MCA does not say, that a best-interests decision cannot lead to the patient's death - but beyond 'such a decision is possible' the MCA is 'very mysterious' about that. But it is peculiar, that 'compassion' is a defence for Assisted Suicide, but is specifically forbidden by the MCA.

The consequences of the MCA 'forbidding compassion' are, prima facie (I feel certain this 'is often fudged in practice' - and I find 'fudges' unsatisfactory and troublesome), disturbing if you combine long-term mental incapacity with 'extended [seemingly] awful suffering during end-of-life'. I touched on the 'paradox' in my BMJ piece at:

http://www.bmj.com/content/351/bmj.h4437/rr-40

I wrote in that piece:

'... the presence of section 4(5) of the Act, seems to make it possible for a patient who is mentally-capable and suffering intolerably, to refuse life-sustaining treatment and thereby to end his or her own suffering: but a patient who is mentally-incapable and, seemingly, suffering intolerably must be kept alive, because a best-interests decision must not seek to end a person's life. That is something very 'uncomfortable' about the combination of self-determination for the mentally capable, but 'best-interests decision-making' for the long-term mentally incapable: however, in this case, I think we do have to live with the discomfort - making a best interests decision 'that this person would be better off dead' seems to be too ethically dubious. Quite a different thing, from a mentally-capable person telling you 'that I would be better off dead, now'.'

That does 'disturb me' - I cannot find any [clear, and non-fudged - just for once, here 'in some situations a fudge looks reasonable'] answer, for the long-term mentally-incapable and that 'paradox'.

Justin Welby also wrote this:

"The tests in the bill do not make space, and never could, for the infinite complexity of motives and desires that human beings feel. The law at present does make that space, and yet calls us to be the best we can".

I tend to agree with him about the first sentence - although I don't agree, that 'safeguarding the mentally-capable is a rational or consistent approach to law'. But I don't agree - in so far as I can understand it - with the second sentence.

I think, he is saying 'that dying patients have got the legal right to commit suicide unassisted - that has to be enough'.

But patients are not 'experts in the most effective, and most painless and non-traumatic, ways to commit suicide' - no sensible clinician, straying off-topic, would ever suggest that 'trying to commit suicide by taking a paracetamol overdose is a good idea' even setting aside whether 'suicide is acceptable': paracetamol is likely to kill your liver, and not kill you [as a person], with the result that you either have a long and horrible death from liver failure, or else are just alive but permanently damaged.

Is Justin Welby, arguing that 'suicide isn't illegal - these suffering patients who want to end their lives, can drink a bottle of whisky and then a bottle of weed-killer, and that is okay' ?

If patients are so distressed by end-of-life that they do want to end it all, why should only medics be able to end their lives from a position of 'clinical knowledge' ? Wouldn't you, if you were set on suicide, want to do it the way the 'experts' (and consultant anaesthetists, seem likely to be 'experts') would commit suicide themselves ?

I also pointed out, in an e-mail to Rob Marris, that this judicial involvement in his Bill bothers me:

'I am bothered that your judicial involvement, will undermine the current situation as described by the Mental Capacity Act that mental capacity is ASSUMED PRESENT: clinicians already tend to reverse that, and imply that patients must prove they possess mental capacity, when the first thing the Act states is that capacity must be assumed present until proven absent.'

It is the 'possible further screwing up of clinical beliefs about the MCA' which prompts me to write about this assisted suicide issue, not any strong interest in assisted suicide itself. My views about the MCA can be found all over this website - if anybody wishes to read my position about assisted dying and this Bill, my recent BMJ pieces are at:

http://www.bmj.com/content/351/bmj.h4437/rr-17

http://www.bmj.com/content/351/bmj.h4437/rr-40

http://www.bmj.com/content/351/bmj.h4437/rr-53

Assisted suicide used to crop up, when I was discussing End-of-Life and Mental Capacity Act issues with Tessa Ing when she was Head of End-of-Life Care at the Department of Health - both of us, preferred to leave AS alone, but we also both agreed that it has a nasty habit of intruding into EoL and MCA discussions.

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