Mr. Finn Keyes:

As regards protecting people who do not have capacity and how we fulfil their will and preferences, how it has worked until now in end-of-life decisions made by courts is that courts have exercised a best interests test. The court will decide what it thinks is in the best interests of people in the particular circumstances, that is, whether continued life would be in their best interests and so forth. The courts sometimes averred to what a particular person would have wanted should that person end up in such a position and whether that was ascertainable from statements made before the person lost capacity. However, overall, a more paternalistic best interests test was used. That changed under the Assisted Decision-Making (Capacity) Act which now provides that an intervener, the definition of which includes a court, will "give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable." That means the intervener will try to decide what this particular person would want if able to express a view.

In court cases, that can sometimes give rise to a somewhat strange and surreal discussion where we are trying to construct what people, who may never have mentioned and possibly never considered what they would want should they end up in this position, would have wanted. A similar regime would likely apply to a person lacking capacity if the Government were to introduce some form of assisted dying. The committee might want to consider whether it should be made more explicit whether a substitute decision of the person or a more paternalistic best interests test should be used.

On whether the Assisted Decision-Making (Capacity) Act contains protections for people with mental health difficulties, I am not aware whether they are directed specifically at mental health issues. However, the entire tenor of the approach of the Assisted Decision-Making (Capacity) Act - the functional approach to capacity and the recognition that people can come in and out of having capacity - is an important change which is intended to recognise the exact circumstances the Deputy referred to, that is, the idea that people can come in and out of non-capacitous states of mind with regard to mental health issues. The Act is designed around that idea and also that people can lose capacity in respect of some decisions and can regain it with regard to some decisions and not others. The whole Act is designed to try to accommodate that phenomenon. I hope that is of assistance.