Assisted dying: is the Mental Capacity Act 2005 an appropriate framework for decision making?

Abstract

The paradigm of end-of-life care is shifting. Assisted dying is being discussed more frequently and despite the recent failure of the Assisted Dying Bill to garner Parliamentary support, it is likely that further attempts to legislate in this field will be made. Since the assisted dying process is predicated upon the individual choosing to end his or her own life, what constitutes ‘competence’ to make this decision and how it is assessed are clearly matters of significance. Although English Law has yet to formulate any legal test of mental competence tailored specifically to assisted death, its management of passive euthanasia, Jehovah Witnesses’ refusal of life-saving blood transfusion, and suicide tourism in particular, suggests that assisted death is considered merely as a form of medical treatment. Implicitly and explicitly, the test ordinarily used for assessing competence when obtaining consent to a proposed medical procedure is thereby the test expected for assisted death. This article challenges the suitability of this assessment method, as outlined in the Mental Capacity Act 2005, for this context. It puts forward arguments that are intended to serve as a platform for further debate on decision-making abilities in this increasingly important area.