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The Assisted Dying Bill shortly to be debated in the UK parliament, as with previous bills to legalise physician assisted suicide for terminally ill adults, proposes safeguards to help ensure that vulnerable people do not access it inappropriately. 1
A key proposed safeguard is the determination of mental capacity: the bill requires that the person "has the capacity to make the decision to end their own life," using the framework of the Mental Capacity Act 2005. Compared with some other aspects of the bill this safeguard has received relatively little scrutiny, and the bill as it stands lacks the clarity to guide assessing clinicians on what should be expected of them.
The challenges include knowing where to set the standard to determine capacity (just how much capacity does one need for the decision to request physician assisted suicide?) and what elements should be brought into the decision making process. 2 The deceptively simple legal concept of mental capacity does not always map neatly to complex clinical scenarios: determining whether a person (whose capacity is a priori presumed) "does not lack capacity" under the terms of the Mental Capacity Act is very different from determining that a person "has capacity" as proposed in the wording of the bill.
And the difference is not simply semantic; the current wording invites wide clinical interpretation as to where, and with whom, the burden...