Contribution
My Lords, I support the amendment in the name of the noble Baroness, Lady Finlay, to substitute “ability” for “capacity” in Clause 1(1)(a). As Clause 3 explains—we have already spoken about this at length—capacity is to be understood as defined in the Mental Capacity Act 2005. But, in my view, capacity so defined is the wrong measure to use to discern whether someone is in a position to make a proper judgment about ending their own life.
The Mental Capacity Act sets a very low threshold for having mental capacity. The Act requires—it could hardly do otherwise—that the person concerned must be able to understand the information relevant to a decision, but it dictates that this requirement should be understood in the laxest way, because Section 3(2) states:
“A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)”.
We have heard from the noble Baroness, Lady Finlay, about the problems of information, facts, evidence and understanding that she has encountered in her very distinguished work in that specialism. In effect, then, someone who can grasp only a diluted, simplified version of the information needed for a decision is still thought to have capacity to take it.
In Section 3(3) the Act adds that, although the person concerned may be able to retain the information, as per Section 3(1)(b):
“The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision”.
The Act therefore allows that someone who cannot retain information in the normal sense of the word “retain”, which means that something is kept, in this case in the memory, none the less has capacity.
Although the Act makes the threshold for mental capacity as low as it can, arguably that is good for the purpose of the Act, because very strong reasons are required before we take an individual’s power of agency over important decisions about the conduct of their life, which is the result of declaring that they lack capacity. If there are any grounds, however slight, we should accept that they have capacity.
But, in the case of the Bill, this position is reversed. We are dealing here with a decision that, in its gravity and irrevocable nature, is completely unlike most—or all—of those important decisions that the Mental Capacity Act was designed to regulate. Where the decision is to end one’s own life, what matters above all is that the agent is able to understand its meaning and consequences. It is not enough in this case that the information relevant to the decision is grasped in a simplified or pre-conceptual form, as the Mental Capacity Act definition would allow, nor that the information is retained only for a moment, then to be forgotten, as again is allowed by the Mental Capacity Act definition. The threshold for being allowed to take the decision must be much higher. Even though making it higher would take away the power of agency from more people than a lower threshold would, it is wholly justified when, as here, it concerns a decision that, if made, will entirely and irrevocably remove an individual’s power of agency.
I agree that “ability” lacks the precise legal definition— I am very grateful to the noble and learned Baroness, who was very candid about what that could mean—that “capacity” has. It is better to have an imprecise phrasing that points in the right direction than one that points the wrong way. Moreover, the phrasing of the amended clause indicates how we should understand ability. It is an ability to make the grave and difficult decision to end one’s own life. Clearly, an ability commensurate with the gravity of that difficult and grave decision is an appropriate way. I support the aim, and, indeed, the wording, of the noble Baroness’s amendment, because of the gravity of the decision that is being taken.