One of the consequences of the Terminally Ill Adults (End of Life) Bill cross-referring directly to the Mental Capacity Act 2005 is that the so-called ‘support principle’ in that Act is imported. This means that all those working with someone within the framework of the TIA – including those assessing (at different stages) their capacity – are not allowed, as a matter of law, to find the person to lack the “capacity to make a decision to end their own life”[1] “unless all practicable steps to help [that person] to [have that capacity] have been taken without success.”[2]
In other words, professionals discharging relevant functions under the TIA are under a statutory duty to support people to have the capacity to make the decision to end their own life.
A briefing on capacity prepared by the Complex Life and Death Decisions group highlights some of the ethical, legal and clinical challenges that adopting the support principle poses, as well as the wider challenges of simply adopting the MCA.
At a minimum, however, Parliamentarians need to be entirely clear about the choice that is being made by including the ‘support principle.’ They are legislating for a framework which seeks to include rather than exclude those who have may have challenges understanding, retaining, using and weighing what “a decision to end one’s own life” means. Some Parliamentarians might be supportive of this. Others might find that ethically challenging. And others might wonder where support to enable a person to have capacity to make a decision to end their own life could shade (even inadvertently) into supporting the person to decide to end their own life.
Those who want to think through what this might mean in practice in the context of a category of people who the Bill is deliberately seeking to include, I strongly recommend reading the very recently published report from researchers at Kingston University looking at the impact of assisted dying legislation on people with a learning disability.
[1] Taking clauses 1 and 3 of the TIA together.
[2] Section 1(3) MCA 2005 (adjusted so as to fit the context).
