Assisted dying Bill: can you really tell if someone’s of sound and settled mind for suicide?

As a psychiatrist I have spent my working life helping people to find a reason
for living and to make sense of disability – not a reason to hasten their
death. So imagine my concern to find yet another attempt to legalise what is
euphemistically called ‘assisted dying’ planned for the new session of
Parliament starting this week.

In practice, assisted dying means licensing doctors to supply lethal drugs to
terminally ill patients to enable them to commit suicide. This is quite
different from pain relief or sedation,which are of course perfectly legal,
although sometimes under-used for fear of litigation. Make no mistake, this
is no mere amendment of the law that is being proposed but a major change to
it – as well as to the principles that underpin medical practice. It’s all
very well to say there would be safeguards but there are no possible
safeguards that would protect vulnerable, sick and elderly people.

Let’s look at two of the so-called safeguards in Lord Falconer’s Bill, tabled
in the last session but not taken forward. One was that lethal drugs should
only be given to someone who “has the capacity to make the decision to end
their own life”. And the other was that there should be “a clear and settled
intention” to end their life.

Of course, if we were ever to have an assisted suicide law, it would have to
be limited to people who are mentally capable, but as a psychiatrist I know
just how difficult assessing mental capacity can be. And who will be asked
to make that judgment? The GP in the surgery, or the doctor on the hospital
ward. Yes, capacity assessment is a normal part of a doctor’s role, and
doctors routinely make judgements about whether a patient understands a
proposed test or treatment. But, when doctors assess capacity, they do it to
protect their patient from harm, not to clear the way for them to commit
suicide. If they make a mistake, the mistake is on the side of patient
protection.

Licensing doctors to supply lethal drugs to some of their patients would be an
extremely worrying development because, if you look at what has happened in
the small number of other countries that have legalised assisted suicide,
there have been mistakes. Look at the US State of Oregon. Researchers have
found that some patients who have ended their lives under the terms of
Oregon’s assisted suicide law had been suffering from clinical depression.
Depression impairs decision-making capacity, it is common in elderly people
and it is treatable. But in some cases in Oregon it has not been diagnosed
by the doctor who assessed the patient’s capacity and prescribed lethal
drugs. Oregon’s law requires referral for psychiatric examination in cases
of doubt but in some cases that has not happened.

So what will the new Bill propose as safeguards? We should find out on
Thursday June 5. Perhaps it will try to improve on Lord Falconer’s last
Bill. Perhaps it will say that, if a doctor has any doubts about capacity,
there must be a referral for psychiatric assessment. Well, that’s what
Oregon’s law says but, as we have seen, it doesn’t seem to work there..
Assessing mental capacity isn’t like checking the oil or water level in a
car! It’s a complex process. And it’s not the sort of thing that can be
done in a single consultation, especially if the decision in question – as
it is in this case – is one with life-or-death consequences. If any doctor,
including a psychiatrist, is to have a fighting chance of making a sound
judgement about capacity in a matter of such gravity as assisted suicide, he
or she needs to know the patient well and over a period of time.

That goes too for establishing whether a request for assisted suicide stems
from a settled intent. But how robust is the idea of a settled intent? I
suggest that this is rather a fluid concept. And how can it be established
by a doctor who has been introduced to the patient solely for the purpose of
supplying lethal drugs? That happens not infrequently in Oregon when a
patient’s regular doctor refuses to consider a request. It is interesting
also to note that, in the few instances in Oregon where patients have
swallowed prescribed lethal drugs but haven’t died as a result, none of them
have sought to repeat the process.

People do change their mind. This happened to a friend dying of motor neurone
disease who told me 6 months before his death, that he would gladly take a
lethal prescribed drug if it was available. Much closer to his death, when
he was very frail and incapacitated, he confided that it had been a precious
journey and he had so valued the closeness and closure that this time had
brought him. He died gently and peacefully having learnt to let go.

We would do well to remind ourselves what the law is there for. It’s there to
protect us, all of us and especially the most vulnerable amongst us, not to
satisfy the determined choices of a vocal minority. Fear about dying calls
for better palliative care services, a field in which Britain is already a
world leader,and for a public that is better informed about the realities,
rather than the scare stories, about death and dying.

Another friend dying of cancer, Mike Capper, wrote just last weekend about his
own experience of facing the end of his life:

“Somehow, writing to you is very helpful to me as I struggle to make sense of
my present experiences…..and my attention to the process and manner of my
departure. Almost every day, I’m fascinated by how friends, acquaintances
and strangers try to figure out how I might be feeling, and how best to
relate to me. This seems more marked the longer I’m around and seeming so
very well on some days and so very ill on others. It’s a mystery to me too!”

He is another who is learning to let go.

Baroness Hollins is a past president of the Royal College of Psychiatrists and
chair of the BMA Board of Science