12/09/2025
Introduction
The Terminally Ill Adults (End of Life) Bill (the ‘Bill’) otherwise known as the Assisted Dying Bill is a private member’s bill. It passed through the House of Commons on third reading, by 314 votes in support against 291 votes in dissent, on 20 June 2025. It was introduced in the House of Lords on 23 June 2025. It will be debated in the House of Lords at second reading over two days: 12 and 19 September 2025. More than 200 Peers have indicated that they wish to speak about the Bill during the debate.
The Bill, which only applies in England and Wales, would enable terminally ill adults, subject to certain safeguards and protections, to be able to request and be provided with assistance to end their own life.
There continues to be many discussions about the practical and legal implications of the Bill. In this article we consider in more detail the proposals from the perspective of mental capacity and mental health.
Assessing capacity
A fundamental pre-requisite and safeguard within the Bill is that to be able to be provided with assistance to end their own life, an adult must have capacity to make a decision to end their own life. The Bill confirms that capacity is to be construed in accordance with the Mental Capacity Act 2005 (the ’MCA’).
Capacity is decision specific. According to the Bill, the “decision” over which the adult has to have capacity is the decision to decide to end their own life.
A cardinal principle of the MCA is the statutory presumption that a person is assumed to have capacity unless it is established that they lack capacity. The Bill creates a different statutory requirement, which appears – at least on its face – to cause some friction or tension with the statutory presumption of capacity. That is the requirement for the “co-ordinating doctor” and the “independent doctor” (together the “assessing doctors”) to undertake an assessment to ascertain whether, in their opinion, the person (amongst other things) has capacity to make the decision to end their own life.
On a plain reading of the language of the Bill, it appears that there is a requirement to positively assess the person’s capacity to make the decision to end their own life. The requirement to positively assess capacity (as opposed to proceeding on the basis of an assumption of capacity until proven otherwise), doesn’t sit comfortably in the context that the presumption of capacity is heralded as one of the key safeguards of autonomy. That being said, we can entirely understand why, given the gravity of the decisions being taken, the Bill seeks to positively ensure that the person does have the relevant capacity.
In assessing capacity, the MCA requires the assessor to determine whether the person is able to understand, retain and use and weigh the ‘relevant information” and communicate their decision. This is known as the “functional test”. Case law is clear that, ultimately, it falls to the assessor to decide what the ‘relevant information’ is.
As such, clarity as to what the “relevant information” the person has to understand, retain and use and weigh, is crucial. The Bill does not specify the “relevant information”. However, the Bill does require the assessing doctors to “explain and discuss with the person”:
- Their diagnosis and prognosis;
- Any treatment available and the likely effect of it;
- Any available palliative, hospice or other care, including symptom management and psychological support; and
- The nature of the substance that is to be provided to assist the person to end their own life (including how it will bring about death and how it will be administered).
The Bill also requires the assessing doctor to “inform the person”:
- Of the further steps that must be taken before assistance can be provided to end their own life;
- That the person can decide, at any time, not to take any of those steps; and
- How to cancel either of their declarations (in effect, how to stop the process if they change their mind).
It seems to us that these are good starting points for what might constitute the “relevant information” for an assessment of the person’s capacity to make a decision to end their own life.
That being said, we anticipate that disputes may arise as to what is – and what is not – “relevant information” for this decision. It may be that this is an area where we see case law develop, if the Bill is passed.
The Bill envisages that the assessing doctor makes reasonable adjustments for language and literacy, when undertaking their assessment. This doesn’t go as far as the requirement under the MCA to take all practicable steps to help the person have capacity. However, the Bill does provide for independent advocates to provide support and advocacy to a “qualifying person” to enable them to effectively understand and engage with all the provisions of the Bill. A “qualifying person” is a person with a learning disability, a mental disorder (pursuant to the Mental Health Act 1983) or autism or a person who may experience substantial difficulty in understanding the processes or information relevant to the processes or communicating their views, wishes or feelings. The Bill is not clear on whether independent advocates are mandatory for “qualifying persons” or optional .
Under the MCA, an assessment of capacity can be conducted by anyone – they are not statutorily required to have any specific qualifications, training or experience. In the Bill, the confirmation of the person’s capacity to make a decision to end their own life has to be given by the assessing doctors – both of whom are required to be registered medical practitioners. The Bill provides that the Secretary of State will pass regulations setting out the training, qualifications and experience that a registered medical practitioner must have in order to fulfil those roles.
If either of the assessing doctors have any doubt about the person’s capacity to make the decision to end their own life, the Bill mandates that they must refer the person for an assessment by a practicing psychiatrist or a person “who otherwise holds qualifications in or has experience of the assessment of capacity”. What would constitute relevant or appropriate qualifications or experience is not specified in the Bill. We anticipate this may be clarified in any regulations.
Under the Bill, a person must continue to have capacity to make the decision to end their own life up until and including the point at which assistance to end their own life is given. This can be seen by the following:
- The Assisted Dying Review Panel has to be satisfied that the person has capacity to make the decision to end their own life – given that this is framed in the present tense, and that (save in exceptional circumstances), the Panel must hear from (and may question) the person – it appears that this provision anticipates the Panel being satisfied of capacity at the time of the Panel’s review.
- When witnessing a second declaration by the person, the co-ordinating doctor has to be satisfied – at that point in time – that the person has the capacity to make the decision to end their own life.
- When providing the approved substance, the co-ordinating doctor must be satisfied that the person has capacity to make the decision to end their own life.
Sadly, there are many neurological degenerative conditions which, in the course of their usual trajectory, often result in the person’s cognitive abilities significantly declining the final months of their life. It may result in a situation where, at the time that they have capacity to make the decision to end their own life, they are not considered to be within 6 months of dying; but that by the point that they are considered to be within 6 months of dying, they have lost capacity. In this case, it appears to us, these individuals would not be able to satisfy the requirements of the Bill at this stage and would therefore not be eligible for the provision of assistance to end their own life.
An added complexity may be that a person suffering with a terminal illness may subsequently suffer a mental illness, such as depression, arising from their terminal diagnosis. This may, in turn, lead to suicidal thoughts or intentions. It is not uncommon, where a person is experiencing suicidal ideation as a result of mental illness (such as depression), that they are considered to lack capacity to make decisions about their care and treatment because of the suicidality arising from those conditions. The Bill does not provide any guidance on how such a scenario would be approached when assessing the person’s capacity to make the decision to end their own life under the Bill. To add a further dimension and complexity, many clinicians consider that if the underlying mental disorder (such as depression) is treated, then an individual’s feelings about ending their life may alter.
It is anticipated that alongside the Act (if passed), Codes of Practice and Guidance would be produced that would address some of these outstanding queries including exactly how capacity is assessed.
What if there is a dispute about capacity?
It does not appear to us that the Bill contemplates, or addresses, a scenario where a third party (for example, a family member) disputes or refutes that the person has capacity to make the decision to end their own life.
In our experience, it is not at all uncommon for those with an interest in a person’s welfare to have differing views about whether or not they have capacity to make a decision for themselves. We think that it is, therefore, well within the realm of possibility, that such disputes may arise in relation to a person’s capacity about a decision to end their own life.
The Bill does not provide a specific role for the Court of Protection. In the absence of any other specific statutory provision within the Bill to address such disputes, it appears to us that if there are disputes about whether an individual has capacity to make a decision about assisted dying, then the Court of Protection would need to determine this.
It is not clear from the Bill how its processes would interface with the Court of Protection, and we consider that this might be an area where further guidance, or case law, is required.
What about Advanced Decisions?
Under the MCA, individuals are currently able to make advanced decisions to refuse treatment (provided that they are over the age of 18 and have capacity to make a decision to refuse that care and treatment).
It is possible to make an advance decision to refuse treatment even if this will result in death.
It is not possible, under the MCA, to make an advance decision to require treatment. We consider that this would also apply to the provision of an approved substance with which the person may end their own life.
The current proposals in the Bill do not provide for an individual to make a positive advanced decision to request assistance to end their own life.
This is consistent with the position in the Bill that the person seeking assistance to end their own life, has to retain capacity to make the decision to end their own life up to and including the time at which the approved substance is provided and they self-administer it.
What about Lasting Powers of Attorney and Best Interests Decisions?
A Lasting Power of Attorney (an ‘LPA’) for Health and Welfare is a legal document which allows individuals to give another person the authority to make decisions in relation to their health and welfare, in the event that they lose capacity to make those decisions for themselves in the future.
The Bill does not expressly permit an attorney under an LPA to make a decision about assisted dying on a donor’s behalf. This is entirely consistent with the remainder of the Bill - as the decision to end their own life has to be made by the individual themselves, at a time when they have capacity to make that decision.
Conclusion
In relation to the above points we have raised that will need further consideration in relation to the Assisted Dying Bill, we intend to closely monitor the progress and questions that arise as the Bill makes its way through parliament.
