In light of the fact that it appears likely that questions of capacity will be considered imminently by the House of Lords at Committee stage, I hope that it may be of some assistance if I pulled together some of the materials on this issue that I have produced / been involved in producing since the Bill was put before the House of Commons last year (they are in chronological order)
- This explainer I recorded around myths about capacity that emerged during the Bill Committee in the House of Commons.
- This recording of a webinar held on 2 April 2025 by 39 Essex Chambers together with the KCL-led Complex Life and Death Decisions Group with an update on the Bill and emerging flashpoints. An article led on by Professor Gareth Owen expanding on the points made in the webinar is imminently to appear in the International Journal of Law and Psychiatry.
- Together with Professor Gareth Owen and Professor Katherine Sleeman, also members of the Complex Life and Death Decisions Group, I prepared a briefing at Second Reading stage in the House of Lords on capacity. We have proposed a version of the Bill as it would look if it were to address the key problems that we identify in relation to capacity (as well as other issues) as well as setting out a number of technical amendments required to enable the Bill to operate within the wider context of the law. I have recorded a video explainer of the amendments, available here.
- A CLADD briefing which explains the difference between refusals of treatment and requests for assistance in dying, given the analogies which are said to exist between the capacity questions in both contexts.
- Following on from my evidence to the House of Lords Select Committee considering the Terminally Ill Adults (End of Life) Bill (see here), I recorded a video on capacity, decisions to end own’s life and the Bill, which seeks to dig further into the complexities around capacity, decisions to end one’s own life, and the implications for the Terminally Ill Adults (End of Life) Bill, in particular as regards the positive obligations imposed on the State by Article 2 ECHR.
Finally, it may be of note that the draft law in Jersey, being formulated by a process led by the Government there, whilst approaching matters through a capacity prism materially the same as the Mental Capacity Act 2005, requires that when the individual is assessed, they have capacity to decide to end their life by assisted dying (the question in England & Wales is whether they have capacity to decide to end their own life). Under the Jersey draft law, the assumption of capacity is not made at the outset. Rather, the assumption of capacity can only be made provided that the doctor/practitioner finds no evidence of a lack of capacity whilst making their assessment. As the Assisted Dying Review Panel (a group convened to consider the draft legislation, including with the benefit of three appointed external experts) noted in their interim report published in January 2026:
It is a more diluted version of the assumption of capacity, in that whilst it demonstrates respect for autonomy, it only does so after no evidence of a lack of capacity can be found. It is thus less of a presumption and more of an assumption of capacity that must be confirmed, thereby reflecting the suggestion in the Ethical Review of removing the presumption in favour of capacity in the case of AD specifically, so that all applicants are routinely assessed.
My resources page on the Bill is here.
