🤔 Terminally Ill Adults (End of Life) Bill (Fourteenth sitting)

• The session focused on discussing amendments to the Terminally Ill Adults (End of Life) Bill, specifically relating to the assessment of mental capacity for assisted dying.

• Daniel Francis proposed amendment 322, which would reverse the burden of proof in the Mental Capacity Act 2005. This amendment suggests that individuals should not be assumed to have capacity unless it is proven they do, emphasizing a need for a higher standard in the context of assisted dying.

• Dr. Simon Opher argued against changing the Mental Capacity Act’s presumption of capacity, stating it could complicate the well-established legal framework and potentially decrease patient safety.

• Sarah Olney supported amendment 50, aimed at standardizing the use of the Mental Capacity Act for the specific decision of assisted dying. This amendment would clarify and detail what doctors must consider when assessing a patient’s capacity.

• Naz Shah and others raised concerns about the Mental Capacity Act’s suitability for assessing capacity in the context of assisted dying, pointing to evidence from experts like the Royal College of Psychiatrists and legal professionals who argue for a higher threshold.

• Rebecca Paul’s amendment 398 suggested a higher threshold for capacity assessments, proposing that capacity must be proven beyond reasonable doubt, given the life-ending nature of the decision.

• Danny Kruger emphasized the need for clarity and thoroughness in capacity assessments, suggesting that without amendments, the current provisions might not adequately protect vulnerable individuals.

• Jake Richards expressed sympathy for adjusting the presumption and burden of proof but favored rigorous processes and training around the existing Act instead of fundamentally changing it.

• Sojan Joseph, with his background in mental health nursing, supported the amendments, stressing the complexity and potential biases in capacity assessments, particularly in acute settings.

• The discussion highlighted the tension between ensuring patient autonomy and safeguarding vulnerable individuals, with differing views on whether to amend the Mental Capacity Act or enhance its existing framework with additional safeguards.

The session displays a moderate level of disagreement, characterized by robust debates and differing opinions on the amendments to Clause 3 of the Terminally Ill Adults (End of Life) Bill. The disagreement primarily revolves around the application and suitability of the Mental Capacity Act 2005 for assessing capacity in the context of assisted dying. Here’s a detailed breakdown of the disagreements and the reasoning for the rating:

1. Presumption of Capacity:
   • A significant point of contention is the reversal of the burden of proof for mental capacity in relation to assisted dying. Daniel Francis argues for amendment 322, which would assume a person does not have capacity unless it is proven they do. This proposal is opposed by others, such as Dr. Simon Opher, who assert that the current Mental Capacity Act already allows for thorough assessments and should not be altered.
   • Example: Daniel Francis’s amendment 322 versus Dr. Simon Opher’s argument that changing the presumption could make the bill less safe and complicate existing practices.
2. Suitability of the Mental Capacity Act:
   • There is disagreement on whether the Mental Capacity Act, which is generally used for various decisions, is adequate for assessing capacity in the context of assisted dying. Rebecca Paul, supported by various experts, contends that the Act is not sufficient and suggests amendment 398 to address its deficiencies. In contrast, Jake Richards argues for maintaining the Act with enhanced training and safeguards.
   • Example: Rebecca Paul’s support for amendment 398 citing insufficient coverage by the Mental Capacity Act, contrasted with Jake Richards’s argument that rigorous processes and training around the existing Act would suffice.
3. Detailed Requirements for Capacity Assessments:
   • Amendment 50, supported by Sarah Olney, aims to specify detailed requirements for capacity assessments. This amendment reflects concerns about the lack of standardization in assessing capacity for such a significant decision. The disagreement here centers on whether these detailed requirements should be legislated or left to professional guidance, with Dr. Opher arguing that such specifics could complicate the act unnecessarily.
   • Example: Sarah Olney’s support for amendment 50 to ensure a standardized approach versus Dr. Opher’s concerns about legal overcomplication.
4. Scope and Nature of Capacity Assessments:
   • There is a debate on the scope of capacity assessments, particularly whether they should cover the understanding of all potential outcomes and complications of assisted death. Danny Kruger supports a thorough and explicit delineation of what must be communicated during assessments, while others, like Kim Leadbeater, feel that this could unnecessarily complicate the legislation.
   • Example: Danny Kruger’s push for clarity in amendment 50 versus Kim Leadbeater’s argument that the Bill sufficiently covers these points or they should be implied by professional codes of conduct.
5. Professional Judgment and Training:
   • The debate also touches on the role of professional judgment and whether additional training could address concerns without altering the existing legal framework. This is a point of disagreement, with some members believing that enhanced training would be sufficient, while others feel legislative changes are necessary.
   • Example: Jake Richards’s suggestion that rigorous training and additional safeguards would be adequate versus Sojan Joseph’s concerns about the reliability of capacity assessments based on his experience.

The disagreement is constructive and focused on improving the legislation’s safety and effectiveness. It does not escalate into personal attacks or widespread contention that would merit a higher disagreement rating. Therefore, a rating of 3 reflects a moderate level of disagreement where the debate is intense but centered on the substance of the amendments and their implications for the bill.