It has come to Dr No that, despite appearances, ethicists are in fact moles in disguise. He is forced to this unavoidable conclusion by their habits: they live in the dark, cannot see things too well, and have a nasty habit of throwing up another molehill just when you thought you had finally seen the last of them.
The latest molehill has been thrown up on Dr Grumble’s blog by a mole calling himself Enzyme. Seemingly unaware of the mountain of debate that has surrounded the death of Kerrie Wooltorton, Enzyme has been busy tunnelling through Dr G’s blog, ejecting familiar clods of support for bad law and dodgy practice.
The mole position is that Wooltorton had capacity, and could therefore decide her fate, even if the outcome were fatal.
But what if the law on which they rest their case – the Mental Capacity Act 2005 – is fundamentally flawed, both of itself, and in its application – as indeed it is? The mole position becomes no longer tenable.
The flaw in the Act is that it fails to allow for human frailty: that we can and do change our minds: that we are fickle.
It fails by requiring that tests of capacity be time and situation specific. On the face of it, this is a sensible requirement, but there are times when both the letter and the spirit of the specificity backfires and leads, as it did in Wooltorton’s case, to a most horrible outcome.
The effect of the specificity is that the question of capacity – and so by association the questions of consent that go with it – are considered in isolation. Today’s assessment is made today, and if we are said to have capacity, the decisions that we make today – locked as they are to today’s assessment of capacity – are accepted, and given full weight, regardless of what decisions we made yesterday, or might make tomorrow.
By telescoping down to the moment, we obtain but a snapshot. Like any snapshot, it may tell us something of what is in the picture, but it tells us nothing about what is to the right or the left of the frame.
What we do know – from direct observation, and research that has been done – is that many who attempt to kill themselves but survive tell us that they regret the attempt. And yet the MCA, in its perversity, drives us to ignore what has been and what might be. If the individual has capacity, and wants to die today, then so it must be – regardless of whether that moment reflects settled intent – or human frailty.