Contribution
My Lords, I thank all noble Lords for their contributions on mental capacity and eligibility. As usual, I will keep my comments limited to those amendments on which the Government have major legal, technical or operational workability concerns. Indeed, if I do not refer to an amendment, clearly that is not the case, as was just suggested.
I wish to make a point to the noble Baroness, Lady O’Loan, who asked about consideration about compliance with ECHR. It is probably helpful for me to re-establish the consideration about that. It is the role of the Government—this is what I am doing—to highlight where there is a risk of issues in respect of the ECHR. However, it is for the House to decide whether policy choices might create a risk and whether that amount of risk is acceptable or not. The other thing, if it is helpful to the noble Baroness, is that, if it is found that primary legislation is incompatible, there could of course be a declaration of that incompatibility. It would not invalidate legislation. That is probably the main point that I want to emphasise, but this is ultimately a matter for decision by the House.
Amendments 117 and 892, in the name of the noble Baroness, Lady Hollins, would remove Clause 3 and insert a new clause requiring the Secretary of State to make regulations that establish an alternative framework for assessing and determining capacity, based on a psychological assessment, rather than reliance on the Mental Capacity Act. How to make that assessment on capacity—noble Lords have referred to this—is a policy choice and is therefore a matter for Parliament. However, as drafted, Amendment 117 uses a number of undefined terms such as “validated, standardised instruments” and “evidence-based methodology”, which, without further clarification or definition, are likely to create workability concerns. Amendment 892 would mean that the majority of provisions under the Bill could not come into force until the regulations under Clause 3 were made. This would make the backstop provision in Clause 58(4) ineffective.
I turn to Amendment 108, tabled by my noble friend Lord Hunt of Kings Heath. It would introduce a departure from the MCA framework by linking a lack of capacity in one area, to consent to care and treatment arrangements that amount to a confinement, to lack of capacity around another decision, the decision to end one’s life. This could create confusion and require additional guidance and training for practitioners.
It appears that Amendment 119 in the name of the noble Baroness, Lady Grey-Thomspon, would introduce a separate specialist capacity assessment process for adults with a learning disability. This departs from the MCA framework, which requires proportionate, decision-specific assessments, rather than separate processes for particular groups. Operationally, this could create significant training and resource demands, as specialist assessors would need to be identified. The Committee may wish to note that the amendment restricts any publicly funded provider from undertaking the mental capacity assessment, which would mean that individuals with learning disabilities would have to self-fund the assessment from a private sector provider. There are also technical drafting issues, including a lack of definition for “learning disability” and other terms such as “relevant professional regulator”, which could lead to uncertainty in how the legislation is applied.
Amendments 117, 892, 108 and 119 would all involve introducing differential treatment, by treating different groups of people differently. As such, they could give rise to legal challenge on the basis of ECHR obligations, specifically Article 14, which prohibits discrimination when read with Article 8. Any differential treatment, as I said more broadly earlier, would need to be objectively and reasonably justified in order to comply with ECHR obligations.
I turn to Amendment 235 in the name of the noble Lord, Lord Moylan. The effect of this amendment is that certain groups of people would not be able to make a valid first declaration, as the noble Lord said. This could exclude people with learning disabilities, mental disorders, as per Section 1 of the Mental Health Act 1983, and autism from accessing assisted dying. An individual who may experience substantial difficulty in understanding processes or communicating their views, wishes or feelings would also be excluded under this amendment from accessing assisted dying. The definition of “mental disorder” in the Mental Health Act is extremely broad and will include those with conditions such as ADHD, dyslexia, anxiety and sleep disorders. The Committee may wish to note that these groups would be excluded, even if their condition had no impact on their ability to fully understand the relevant information.