Baroness O’Loan (CB)

My Lords, as a consequence of our earlier debates, as the noble Lord, Lord Markham, said, we know that in the context of applications for assisted suicide, the Mental Capacity Act, which is to be used for determining capacity, would permit an unwise decision—we have all agreed on that—even if driven by depression, loneliness or despair. We know that it would treat brief retention of information as sufficient even when the Bill requires a clear, informed and settled wish, and even though we know that, in cases of dementia, 76% of patients who refused life-saving treatment while delirious have no memory whatsoever of having done so 24 hours to 72 hours later. Another study found that more than 60% of patients who voiced a wish to die during a bad day had no recollection of it when mood or cognition improved. People who cannot retain or consider information on their choice the day after making it will not be able to avail themselves of the cooling-off period, which is for contemplation about what is proposed. They will be in a very dangerous position, especially if their particular condition leaves them suggestible to options offered to them by those who care for them professionally, in whom they will probably place great trust. The Mental Capacity Act also imposes a duty to support decision-making, which in this context risks becoming a duty to facilitate a decision to die. The Mental Capacity Act says that capacity expressly includes making an unwise decision, even if it would be irreversible and total self-harm. Alex Ruck Keene said in giving evidence that “if you simply read across the Mental Capacity Act, there is a duty on all the people carrying out the assessments to seek to support the person to have capacity to end their own life.” We also know that it will rely on time-specific capacity, despite the Bill requiring consistency across all these stages, from one, two, seven, eight and so on. The reality is that the only one that requires an interaction between the doctor and the patient is the first one. The rest of them are exercises that may not involve any consultation with the patient who is making the application, let alone a face-to-face engagement. The Bill purports to introduce a statutory framework for determining capacity, but it does not do so in reality because the MCA is designed to test when a person cannot make a decision, not whether someone is capable of doing so. I hope that the noble and learned Lord, Lord Falconer, will accept the intent of these clear and effective—