Concerns about the ability to safely assess mental capacity in Jersey amid ongoing health staff shortages have been raised within proposals to tighten the island’s draft assisted dying law.
Assistant Health Minister Barbara Ward has warned that safeguards built into the proposed assisted dying legislation are fundamentally undermined by a provision allowing patients to pre-approve their assisted death – even if they later lose the capacity to consent.
She is seeking to remove what is known as the “waiver of requirement for future capacity” from the law. This provision allows an assisted death to proceed even if a patient becomes unconscious or loses capacity between approval and the final act.
But, according to Deputy Ward, this turns assisted dying into “an administering practice of non-voluntary euthanasia”. She added that such acts are currently regarded in law as “either manslaughter or murder”.
The Assistant Health Minister described the provision as “an advance direction to abandon the right to having capacity and to consent to the assisted death”, warning of “a recipe for bias to seep in, and for discrimination, possible negligence, coercion and even criminality to go unchecked”.
Under Deputy Ward’s amendment, assisted dying would only be permitted if the individual had mental capacity and was able to give clear, voluntary consent at the point the drugs were self-administered or administered by a practitioner. Any loss of capacity would automatically halt the process.
But within her amendment, she raised concerns about how capacity would be assessed in practice in Jersey – particularly given pressures on the island’s healthcare workforce.
“The assessment of capacity is not straightforward,” she warned, noting that capacity “may fluctuate over short periods of time – even hours”, and is influenced by “the assessor’s experience and values”.
She also highlighted that capacity and self-determination legislation was never designed to assess decisions to end one’s life, especially as the assisted dying process relies on a single assessor at a critical stage.
Drawing comparisons with England and Wales, where she said “unease” remains despite nearly two decades of experience with capacity legislation, Deputy Ward questioned whether Jersey is adequately prepared.
“Despite early implementation of mandatory training in capacity assessment, there is still unease in England and Wales about whether it is really fit for purpose,” she explained, pointing to questions about whether current training levels are sufficient, whether two independent assessments would be safer, and whether psychiatric involvement should be mandatory.
Deputy Ward argued that these concerns are magnified in Jersey.
“In Jersey, that level of unease should be much greater due to the ongoing issues with recruitment and retention of health and social care staff, including those working in mental health services,” she explained.
The Assistant Health Minister said that the absence of well-established mandatory training in mental capacity assessment should “heighten concerns” about whether safeguards could be reliably applied in the island.
She concluded: “The numerous questions raised in this amendment demonstrate the unsatisfactory nature of including a waiver in the draft law and highlight that this should be removed.
“People who wish to have an assisted death via self-administration need to be supported. But there should be no intervention where a patient becomes unconscious or has lost capacity and is unable to say yay or nay.
“They need to be cared for compassionately, and with kindness, through a palliative approach, receiving required medication to ensure no suffering as they near the end of their journey.”
The draft assisted-dying law is due to be debated in the States Assembly next week, but could be pushed back until late February after a Scrutiny panel requested more time to review the proposed legislation.