Lynn Ruane (Independent)
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I thank the witnesses. It is very hard not to get caught up in concepts. There are these constant dilemmas and contradictions and all these things to try to work out, which shows how complex some of these conversations are. I am getting stuck a little on capacity and consent. The same understanding of it does not seem to apply when we move into different scenarios. Do consent and capacity have a universal understanding or are they movable things that move when we consider different circumstances? This is the example I am trying to grapple with in my head. Say we have a regulated system for assisted dying and I have an advance healthcare directive. I then lose capacity and withdraw my wish for assisted dying under that non-capacitous state. It seems that, at that stage of an advance healthcare directive, there is potential for the previous consent around the person's wishes to be somewhat withdrawn.

Then we come to advanced healthcare directives and other areas, such as in mental health. If I am an individual who says that if I end of up in a state of psychosis or have schizophrenia in the future, I do not want electric shock treatment but then, when I am in some state relating to my mental health, start insisting that I want electric shock treatment, would my previous lack of consent hold up or could a doctor decide it was in my best interests to give me electric shock treatment? I am trying to think of a positive act such as the insertion of treatment into a person's life, not only a withdrawal of treatment, so that it becomes a positive and not passive act. Is the whole area of consent and capacity really about individuals and their wishes at all? Does it become about something else, such as people's ability or willingness to engage with the previous consent? I am not sure whether I am asking a question. It is more that I am struggling to understand when it applies.

For example, in relation to the principle of double effect, of the criteria listed in footnote 13 of Mr. Keyes's submission, the only criterion someone who wanted to engage in assisted dying would not meet is the second one, that "the agent may not positively will the bad effect but may merely permit it". That might be the only criterion when it comes to assisted dying. We can look at palliative care and the refusal of treatment, but on assisted dying and a person's will, does it stand up when we look at the example Thomas Aquinas used, which was self-defence? What if I am defending myself and it is my will in that moment for the other person to die and for me to save myself? It does not make sense that, in the case of assisted dying, when having something administered or prescribed the will changes but it does not change in other scenarios, for example, in the cases of self-defence or the doctrine of double effect. The question is whether some of these things stand up. When I read about such matters as alleviating suffering, people's best interests and so on, it seems as though it is all a play on language because we do not have regulation. The court system uses plays on language to get around scenarios to be able to let someone die by switching off a machine. None of them are concrete principles.

I have another question about an act. What is an act? Are we saying that doing nothing is not an act? That does not make sense. It is an act. The distinction between positive and passive assistance in dying is irrelevant. What are the witnesses' thoughts about that? Doing nothing is doing something, unless the person is incapacitated and cannot do anything. That is different. Why is it different if a person makes a decision in a moment to withdraw something or to give something, as regards describing them as an act, when both result in the same thing, namely, death?