This post is not really about mental health, but mental capacity and more importantly still, the legal assessment of capacity to take decisions. Like me, you may have followed the Terminally Ill Adults (End of Life) Bill which is now before the House of Commons and is separately passing through the Scottish Parliament. I admit to be interested in this and I also had to have some deep and meaningful discussions with my own mother in the last couple of years after she was diagnosed with cancer in 2023. We lost her last year, but to her absolutely credit, I was never in doubt about certain decisions she wanted to make and she made she I knew what to say if doctors ever had to ask me anything about her wishes – and then about her requirements after she died.
We talked about it a lot and not just after her diagnosis and so I know how complicated, sensitive and difficult these decisions can get.
In the last few days the Royal College of Psychiatrists (RCPsych) has entered the public debate about the Bill. In its various iterations, those MPs introducing the Bill to Parliament had stated various decisions and assessments would be needed along the way, for the patients who might quality to take end of life decisions. If you have followed this, you’ll no doubt have certain views about it all, as I definitely do, but the post isn’t about my views or what other people’s should be. It is about one specific reason RCPsych have given for why they cannot support the structure of this particular Bill, despite remaining neutral on the principle of whether the United Kingdom should adopt an end-of-life framework for terminally ill patients.
They have produced a press release summarising things for us, in addition to publishing a full policy document on its position which is worth reading and whilst all the reasons are interesting and worth reading more about, this post is just about number four, in bold below.
DETAILED RESPONSE
They College is not vague about its concerns and I offer that as a compliment because I often complain public debate on important matters or events is too vague or too shallow.
Specifically, we hold the following views in relation to the Bill:
- Terminal illness is a risk factor for suicide.
- There should be a requirement for a holistic assessment of unmet need.
- Assisted dying/assisted suicide is not a treatment.
- The Mental Capacity Act does not provide a framework for assessing decisions about ending one’s own life.
- It is not clear what a psychiatrist’s role on a panel would be.
- There are not enough psychiatrists to do what the Bill requires.
- Professionals must be able to conscientiously object to involvement in any part of the process.
- Robust professional standards and oversight would need to be in place.
- Physical effects of a mental disorder should not make a person eligible for assisted dying/assisted suicide.
You can then read nine specific sections on each of these, getting in to the detail. it is number 4 which interests me here, the point about the Mental Capacity Act not providing a framework for assessing end of life decisions.
CAN THAT BE RIGHT?
I’m no lawyer and I’m deliberately vomiting out this blog post without rushing off to read what Alex Ruck-Keene KC is writing about this (his whole blog is HIGHLY recommended) because he, as the country’s Mental Capacity Act guru. will be all over this like a rash. But I’m all too aware the MCA has been used in other cases to determine whether someone’s decision to effectively end their life will stand as valid in the courts.
I need to be clear here:
These are obviously not cases where terminally ill patients have been assessed because they’ve asked doctors to help them end their life – that is currently unlawful and precisely why there is a debate about the Bill. But there have been a number of cases where patients with mental health conditions have, for example, attempted to end their life by suicide and then declined care which was capable of reserving the impact of what the patient had done. It effectively amounted to a decision to end their life, by declining treatment, as opposed to ending it by initiating action. The difference is obviously omission / commission of action by doctors based on the patient’s capacity.
So we probably need to be interested in the short section on point 4 and see what it says.
COMMISSIONS AND OMISSIONS
The Royal College states –
The MCA was created to safeguard and support people who do not have the mental capacity to make decisions about their care or treatment, or other matters like finances. It provides professionals with a framework to assess a person’s capacity to make decisions that are in their best interests around things like changing residence or getting surgery. The MCA does not provide a framework to determine a person’s capacity to decide to end their own life.
Comparisons have been made between the TIA Bill’s novel capacity test and assessments of capacity that are currently carried out under the MCA when a person wishes to withdraw from or refuse life sustaining treatment. Throughout this process, we have observed philosophical arguments about acts versus omissions, but what is functionally important for the capacity test in this example is that a refusal involves choosing not to receive a treatment. There is a clear distinction between not keeping a terminally ill person alive and ensuring that they are as comfortable as possible at the end of their life versus the active administration of lethal medications.
Were this Bill to proceed, implications for the MCA would need to be considered – how would we assess the new kind of capacity framed in the TIA Bill? Implications for the MHA would also need to be considered – how would we protect and empower people with terminal illness to decide whether or not to end their own life, while at the same time detain those who are at risk of suicide so that they can be urgently treated? For coherence, legislative attention needs to be given to these three laws – the MCA, MHA and TIA Bill – together.
OTHER EIGHT REASONS
For what it’s worth, clause 3 of the TIA Bill does make it clear assessment of the end of life decision is about capacity as determined by the Mental Capacity Act so if that doesn’t clear up what the proposal is, I’m not able to help further but psychiatrists and doctors being pretty key to all of this, they probably need to be satisfied because there are already enough of them making clear they will have nothing to do with this legislation on moral grounds.
This post effectively invited you to skip over the other eight factors because of the emphasis I wanted to put on the Mental Capacity Act test. It’s worth reading the other eight and looking at their respective sections in the policy document. It is interesting stuff about the relationship between mental and physical illness, as well as between the MCA and the Mental Health Act 1983.
You might also be interested in reading the Bill itself, as it currently stands after its second reading in the House of Commons. And ARK’s posts are always worth reading for actual legal analysis – his post on the RCPsych announcement is more descriptive than analytical but his blog more widely is highly educational.
The Bill is now in report stage in the Commons, the date of third reading is yet to be fixed.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2025
I am not a police officer.
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
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