Introduction
Suicide is a significant issue in contemporary society. Each year, more than 700,000 deaths worldwide are estimated to be due to suicide (WHO 2024). The World Health Organization regards these deaths as preventable and has recognised suicide prevention as a global public health priority (WHO 2014). Challenging legal issues remain, however, in regard to the role of the law in suicide prevention. In this short article, I will explore how the mental health and mental capacity laws are currently used to respond to a risk of suicide and argue for an enhanced focus on the decision-making capacity of the person at risk of suicide while ensuring help is available to those who request it. Such a focus has the potential to facilitate a more refined legal response to suicide by acknowledging the pertinent distinctions between voluntary and autonomous desires to end life on the one hand and life-endangering symptoms of mental illness on the other hand. I will focus on the law in England and Wales, but the general arguments have much broader application and, in particular, are relevant considerations for Irish law in the context of imminent reforms to its mental health laws.
Mental health laws and suicide risk
The main means by which the law in many jurisdictions seeks to prevent suicide is through the use of compulsory civil powers. Indeed, within England and Wales, it was the new availability of compulsory civil detention powers in the Mental Health Act 1959 that was a crucial element in the parliamentary decision to decriminalise suicide in 1961 (Wicks Reference Wicks2023). Since that time, preventative powers in relation to suicide have continued to be subsumed within broader mental health laws. These range from the use of short-term emergency powers to prevent an immediate suicide risk, to longer-term admission and treatment powers to address an underlying mental illness. From a police power of removal to a place of safety, to applications for compulsory admission to hospital assessment (Mental Health Act 1983, Sections 136, 2, 4, and 5), these short-term compulsory detention powers mean that any person thought to be at risk of suicide can be detained for their own safety provided that they are suffering from a mental disorder (now defined as ‘any disorder or disability of the mind’) warranting detention. Given that suicide risk is most commonly associated with mental illness and that it is estimated that approximately 90% of people who die by suicide have a mental illness (Windfuhr & Kapur Reference Windfuhr and Kapur2011), for the vast majority of those at risk from suicide, compulsory hospital admission for assessment is likely to be relatively unproblematic. In the UK, the most common diagnoses among patient suicide deaths are affective disorders and schizophrenia (Windfuhr & Kapur Reference Windfuhr and Kapur2011), and these diagnoses fall squarely into the category of mental disorder for which compulsory powers exist. Therefore, there can be little doubt that for the huge majority of persons at risk of suicide, legal powers exist to authorise compulsory admission to hospital. Of course, hospital admission does not preclude further suicide attempts, and indeed, the suicide risk is elevated in the in-patient group, with periods of transition into and out of in-patient wards being particularly vulnerable periods for patients (Windfuhr & Kapur Reference Windfuhr and Kapur2011).
Proposed changes to the MHA in the 2021 White Paper on Reforming the Mental Health Act seek to strengthen and clarify the criteria for compulsory detention under Sections 2 and 3, so that patients are only detained when it is absolutely appropriate (White Paper, 2021). Many of these proposals have been included in the Mental Health Bill currently making its way through the Westminster Parliament (Mental Health Bill 2025). The context and impetus for the proposed changes is the more than doubling of the rate of compulsory detention in mental health hospitals since 1983 and the fact that it is disproportionately higher among certain ethnic minority groups, with black people four times more likely than white people to be detained under the Act (White Paper, 2021). The proposed reforms to the MHA will thus tighten up the language in Section 2 (and 3) to require that there be ‘a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person’ (Mental Health Bill 2024). This change is unlikely to have much practical effect in relation to persons at risk of suicide as this in itself would clearly suffice as substantial risk of significant harm. An additional reform of relevance to suicide risk is the removal of police stations and prisons as ‘places of safety’ in respect of the section 136 power mentioned above.
Beyond short-term hospital interventions, the possibility of longer-term hospital admission for treatment also exists in relation to persons posing a risk of suicide under Section 3 MHA, which provides for admission for treatment for up to 6 months. Appropriate medical treatment must be available, and this requirement is of vital importance in the context of suicide as it emphasises that the longer-term detention power is solely for the purpose of treatment and not merely to prevent a risk of suicide. The treatment provided must have the purpose to alleviate, or prevent a worsening of, the underlying disorder or one or more of its symptoms or manifestations. Since legislative changes in 2007, it has no longer been a requirement that the treatment be likely to achieve this purpose, but the current reforms being considered include reinstating an explicit therapeutic benefit requirement such that there is a reasonable prospect of alleviating, or preventing the worsening of, the disorder or its symptoms or manifestations.
Once admitted for treatment under s3 MHA, any treatment that is appropriate and necessary will be lawful. There is no requirement that the treatment be in the best interests of the patient beyond specific medical need. The Mental Health Bill includes proposed ‘care and treatment plans’ to ensure the wishes and preferences of the patient are considered, as well as ‘advance choice documents’, which enable people to express preferences and refusals of treatment in advance. Crucially, however, proposed changes will not tackle the underlying issue that the compulsory powers of detention and treatment under the mental health laws do not require a lack of mental capacity. Therefore, a person who is at risk of suicide and diagnosed with a mental disorder may face compulsory hospital admission and treatment even if they retain full decision-making capacity and refuse consent.
It is clear that the focus of the MHA in relation to suicide is to reduce risk (Richardson Reference Richardson2010). This approach is strengthened by the obligations imposed by Article 2 ECHR to take reasonable steps to prevent suicide in certain circumstances. The obligation was first identified in relation to suicide in prison but has since been extended to cover mental health patients (both voluntary and involuntary) (Fernandes de Oliveira v. Portugal 2019). In order for a violation of Article 2’s right to life to be found, it must be established that the authorities knew, or ought to have known, of a real and immediate risk to life, and they ‘failed to take measures within the scope of their powers which, judged reasonably, might have been expected to prevent that risk from materialising’ (Çoşelav v. Turkey 2012). Many thorny issues arise in relation to the determination of the ‘real and immediate risk’ and measures required (Wicks Reference Wicks2023), but neither the European Court of Human Rights nor the Supreme Court of the United Kingdom has utilised the concept of mental capacity in defining the scope of this legal obligation. As with the mental health laws, there seems to be no agreed role for consideration of mental capacity or autonomous choice in relation to suicide.
Capacity laws and suicide risk
Mental capacity does play a pivotal role in other laws that are of relevance to suicide prevention. Under the Mental Capacity Act 2005 (MCA), a person can be provided with treatment that is in their best interest if they lack decision-making capacity. A person lacks capacity if they are unable to make a decision for themselves because of an impairment, or disturbance in the functioning, of the mind or brain (Section 2(1) MCA). In order to determine what treatment is in the best interests of the patient, their own past wishes, feelings, beliefs, and values will be taken into account but are not necessarily determinative (Section 4(6) MCA). Furthermore, a deprivation of liberty is permitted under the MCA, distinct from the compulsory admission powers under the MHA, in order to provide life-sustaining treatment or to prevent a serious deterioration in the person’s condition (Mental Capacity (Amendment) Act, 2019).
The division of laws focusing on mental capacity from those focusing on mental health within England and Wales results in some complexity. For example, a person retaining capacity can be treated without consent for a mental disorder but not for a physical disorder even though it might be argued that a capacity test would be appropriate for all legal uses of compulsion (Dawson Reference Dawson2015). For a person at risk of suicide, the identification of a mental disorder underlying the suicide risk facilitates compulsory admission and treatment but oversimplifies the factors that may lead a person to choose to end their lives early. When considering the question of capacity in relation to suicide, it is hard to avoid an impression that the law entrenches a catch-22 situation: if a person expresses a desire to end their own life, it proves that they are not capable of making a decision to die; but if a person does not wish to die, this proves they are capable and rational and have the freedom of make their own choices, including whether or not to die. In this way, the law ensures that a suicidal person is prevented from exercising an autonomous choice to die, in much the same way as a person with anorexia may be prevented from making binding decisions in relation to eating. The catch-22 in the latter situation has been recognised by the courts: ‘a person with severe anorexia may be in a Catch-22 situation regarding capacity: namely, that by deciding not to eat, she proves that she lacks capacity to decide at all’ (Re E Reference Re2012). Such an approach, whether applied to anorexia or depression, is problematic because it may be difficult to separate a long-standing mental illness from a person’s personality (Wilson Reference Wilson2018). On the other hand, it can also be challenging to assess capacity in patients with certain conditions, such as emotionally unstable personality disorder, where decision-making ability varies. Avoiding the catch-22 of assuming a wish to die indicates a lack of capacity to make that choice does not mean that it will not still be challenging to know where to draw the line between a symptom and a core desire.
Compulsion is legally permitted in efforts to prevent a suicide of a person suffering from a mental illness regardless of whether that person retains decision-making capacity in the eyes of the law under the MCA capacity test. Without a mental health diagnosis, no such compulsion would be lawful for a person who retains capacity. It could be argued that this amounts to discrimination in that the law tolerates suicide (since its decriminalisation in the Suicide Act 1961) for all except those with a mental impairment (or, one might note, although it is outside the scope of this article, a physical disability necessitating assistance in ending life). Discrimination on the basis of disability is prohibited by international human rights law. The Convention on the Rights of Persons with Disabilities (CRPD) explicitly requires legal capacity to be provided on an equal basis (Article 12) and precludes the use of a mental disability as a justification for a deprivation of liberty (Article 14). This poses some problems for English law under which the MHA uses the existence of a mental disorder as a necessary ingredient for compulsory admission and treatment. The Committee on the Rights of Persons with Disabilities appears to have gone further in requiring the abolition of all substitute decision-making regimes (Committee on the Rights of Persons with Disabilities 2014), which might also controversially suggest that the MCA’s alternative capacity-based approach to compulsion is also discriminatory. This message – and one which is challenging to implement, to say the least – suggests that legal and mental capacity should not be linked. What might this mean in the context of suicide? Could it require that a decision to attempt suicide by a person lacking mental capacity and perhaps suffering from a mental illness, be respected rather than prevented?
Such a conclusion would be a selective reading of the CRPD, which includes a number of provisions implying justification for suicide interventions. First, Article 12(3) requires measures to provide access to the support required to exercise legal capacity and envisages a system of supported decision-making. Psychiatric treatment is only permissible under the CRPD with a person’s informed consent or, if that is impossible, on the basis of the best interpretation of their will and preferences. In the context of suicide, such a model may involve ‘trying to create a safe and comfortable space to assist them to understand what is happening and to facilitate their making a decision about whether or not to end their lives which reflects their will and preferences, whatever the result’ (Wilson Reference Wilson2018). Such an approach may help some people to seek treatment, and also may help some other people in other contexts to recognise when a wish to die is one that is integral to a person’s personality and worthy of respect. But it may also ignore the reality of many suicides as symptoms of a treatable mental illness, and it may even lead to legal liability if respecting a wish to die comes too close to assisting such a desire, as assisting or encouraging a suicide remains a serious criminal offence. Wilson describes a conviction for involuntary manslaughter in the United States for a person who was regarded as too encouraging in supporting a friend to complete a suicide when she believed that it was in accordance with her friend’s will and preferences (Wilson Reference Wilson2018). This highlights that there is a thin line between risking criminal liability for encouraging a suicide and respecting the wishes of a person who has made a choice to die.
Other provisions of the CRPD are also relevant. Article 10 CRPD requires states to take all necessary measures to ensure the effective enjoyment of the right to life by persons with disabilities on an equal basis with others. This provision has not been substantively interpreted, yet but concluding observations by the Committee on the Rights of Persons with Disabilities have noted the need for preventive measures against suicide risk for persons suffering from mental disabilities (Wilson Reference Wilson2018). Herring has recently argued for the need to balance Article 10 CRPD’s protection for the right to life with Article 14’s prohibition of discrimination, which he believes ‘could justify discriminatory treatment of the suicidal in a sufficiently strong case’ (Herring Reference Herring2022). Indeed, discrimination is a complex notion in the context of suicide and mental disability because while intervening to prevent suicide on the basis of that disability may be discriminatory, a failure to intervene to treat the underlying cause of the suicidal desire may also amount to a failure to respect the life and health of a person due to their disability.
Alternatively, any hint of discrimination could be avoided by permitting state intervention to prevent suicide regardless of mental impairment or capacity. This is a problematic approach, however, because it requires acceptance of one of two equally objectionable premises: either that no choice to die can be an autonomous decision worthy of respect, or that overriding an autonomous, rational choice for a person’s own good is permissible. Both such approaches are objectionable, in my view (Wicks Reference Wicks2023) as they involve the undermining of the ethos of liberal individualism, human rights law, and J.S. Mill’s harm principle (Gray & Smith Reference Mill, Gray and Smith1991). If the removal of mental capacity from the legal landscape of suicide leads to such problematic views, it is worth contemplating that capacity should remain a crucial distinguishing feature in the law’s response to suicide risk. It opens the door to compulsory psychiatric treatment to prevent suicide, but on the basis of a lack of capacity to make the choice to end life, rather than merely on the basis of a mental health diagnosis. Some persons with a mental illness may be able to make a capacitated choice to die; others without such an official diagnosis might nonetheless require compulsory support due to a present inability to make capacitated choices. It is somewhat old-fashioned these days to argue in favour of capacity as a central pillar of the use of compulsion in the law, but in my view it remains the most unambiguous dividing line between self-imposed threats to life that ought to be prevented and autonomous choices about the end of one’s own life that ought to be respected.
In taking this view, I do not intend to undermine the legitimate concerns of patients, carers, and activist groups about denial of care when requested. As Chloe Beale has identified, ‘patients may find themselves told they ‘have capacity’ to end their lives, in a perverse justification of medical inaction. Mental capacity – a concept enshrined in legislation intended to enhance the autonomy and decision-making of vulnerable people – is used to legitimise neglect’ (Beale Reference Beale2022). It is clear that the use of the phrase ‘you have the capacity to end your life’ can be extremely harmful if used in response to a desperate cry for help (Aves, Reference Aves2022). But this is a misuse of capacity in a number of ways. First, it is not a legally appropriate concept to apply in response to a request for help. Capacity is (in my view) an important gate-keeper for the use of compulsion and interference with autonomous choice, but it is not relevant to a determination of whether or not to assist someone who has asked for help. Second, in situations involving the provision of mental health services, it is legally irrelevant whether or not a person has capacity to take their own life, because the compulsory powers under the MHA (rightly or wrongly) do not pay any heed to the question of capacity. A more pressing issue for health care professionals might be whether the Article 2 operational duty to take reasonable measures to prevent a suicide applies (Beale et al., Reference Beale, Lee-Davey, Lee and Ruck Keene2023). Third, if a person makes a request for help in avoiding taking their own lives, how can they then be regarded as having the capacity to make a choice to die? By indicating their wish for help in staying alive, they are clearly not making a contemporaneous capacitated decision that they want to end their life. Intentions may waver, of course, but at the crucial time, one cannot both ask for help in staying alive and ask to be allowed to die in a capacitated manner. The misuse of capacity to deny treatment is a serious and worrying problem. As Ruck Keene puts it, ‘capacity must never be used against the person’ (Ruck Keene Reference Ruck Keene2021). However, as important as this issue is, it is not a reason to exclude the concept of capacity from the entire topic of voluntary death. As in the famous saying, two wrongs do not make a right.
So, how might a clear adoption of the lack of capacity as a gate-keeper to compulsory treatment work in the context of those at risk of suicide? It seems to me that the key question should be whether a desire to die by suicide is consistent with a person’s identity and whether it makes sense in the context of the story of that person’s life. Craigie has described how the determination of whether a person has capacity or not is ultimately about whether a decision can be explained ‘in terms of the patient’s particular motivating commitments (their desires, values, projects, ideas about a good life); or whether the decision is properly explained in terms of a problem in decision-making, which is due to a dysfunction of mind or brain’ (Craigie Reference Craigie2013). Many suicidal desires will be due to such a defect in decision-making, and thus, a capacity-based legal approach would justify preventative intervention, by compulsion if necessary. It is possible to conceive of some instances of a desire to die that are not the result of such a defect in decision-making but are rather an internal coherent choice that represents an autonomous desire. As I have argued elsewhere (Wicks Reference Wicks2023), a concept of ‘diachronic continuity’ may be useful in this context. As explained by Pickard, a degree of diachronic continuity is ‘an important part of identifying the desires and values that shape autonomous decisions. Signs of ambivalence and actions that are out of character offer evidence that this condition is not met’ (Pickard Reference Pickard2015). A requirement of diachronic continuity would require continuity with previous choices and values but also crucially take into account future consequences. Craigie points out that psychologists ‘often assume that people are rationally required to give significant weight to the future personal consequences of choices, the strongest version being that people ought to be temporarily neutral in their decision-making’ (Craigie Reference Craigie2013). In the context of suicide, this is undoubtedly an important perspective because the implications of a choice to die by suicide are profound for the future self as they will be denied the opportunity to live.
Given that suicidal tendencies are frequently inherent in depression, it may be a common feature of suicide that the future self is not sufficiently taken into account when a decision to die prematurely is made. However, it is also conceivable that in certain contexts the future self might be saved from further harm or suffering from such a choice. This reminds us that a rational choice to end life is possible, even if rare, and is most likely to occur within the context of terminal or serious health conditions. It is regrettable that the global trend towards permitting exceptions to harsh blanket prohibitions on assisted suicide, recently joined by UK jurisdictions, including England and Wales in the Adults End of Life (Terminal Illness) Bill 2025, is largely a trend that has become isolated from broader discussions about suicide itself. (Unfortunately, this article does not address the issue of assisted dying as this topic was beyond the scope of this themed issue.) If an assisted suicide is ever acceptable within a society, then the underlying choice to end life must be regarded as a legitimate one, and if that is the case, then we need to explore more fully the possibility that not all suicides need to be prevented. While this might be subject to criticisms that it risks ‘normalising’ suicide, there is no reason why respecting autonomous choice in one context should preclude making available support in an entirely different context and, furthermore, a presumption in favour of saving life is strongly rooted within English law so any uncertainty will always be resolved in favour of saving a life rather than respecting a choice to die.
From ‘suicide’ to voluntary deaths
Currently, there seems to be a reluctance, both in the law and within society, to recognise that a rational choice to die may exist. Historically, the law assumed that all suicides were sins to be punished; today’s frequent assumption that all (rather than most) suicides are symptoms of a mental disorder is no less an over-generalisation. Such an assumption obscures the relevance of mental capacity to the question of whether a choice to die should be prevented or respected. Despite the challenge posed by the CRPD and the legitimate concerns of a misuse of capacity by some service users, I believe capacity retains a vital role in such determinations. The general test for capacity found, for example, in the MCA sections 2 and 3, which is a functional test focusing upon decision-making capacity, is an appropriate starting point. It is common, however, for a particularly stringent test of capacity to be applied in relation to life and death decisions. This reflects the fact that capacity to make straightforward day-to-day decisions cannot be equated with decisions to bring one’s life to an end. I have argued for a heightened version of capacity reflecting a concept of diachronic continuity, which would highlight the need to take into account both the past and future self when deciding to end life. The decision-making process must be established to be rational, consistent, forward looking and reflective in order to be recognised as a capacitated and autonomous choice to die. Such a strict standard is capable of forming a defensible boundary between suicide risks to which preventative measures are appropriate and choices to end life which are owed respect.
Finally, terminology is important, and it might be noted that I have used a number of terms interchangeably in this article. I adopt a (relatively uncontroversial) definition of ‘suicide’ as a self-caused death with the intention to die. However, the label of ‘suicide’ is often used in a normative manner such that only those self-caused deaths, or attempted deaths, of which society disapproves are accorded the label, and other deaths where the intention to die is understood, and maybe even respected, are not labelled as suicide. This means that the term ‘suicide’ encompasses inherent pejorative meanings and judgement. Given that suicide as a term no longer carries any legal meaning, other than in relation to secondary participants, it may be that the label of suicide would be best avoided. The long history of the term in which it was for so long regarded as both a sin and a felony means that outdated notions of condemnation may linger in some uses of the word even today, and its inconsistent use for some, but not all, end-of-life scenarios brings unnecessary legal confusion. Would it not be more fitting for us to talk simply of voluntary deaths or choices to die, and then to focus on the crucial legal issue of whether that choice is a capacitated one or not?
Conclusion
In this article, I have argued for greater focus to be placed upon a capacity test (suitably enhanced due to the seriousness and irreversibility of the end-of-life context) within legal responses to suicide risk. Within England and Wales, the division of mental health laws from the concept of mental capacity renders their use in suicide prevention discriminatory and authoritarian. It is a consequence that is long overdue for some recognition in the legislatures of the UK and of Ireland too. Many people attempting or considering a voluntary death urgently need medical care and treatment to tackle an underlying mental illness that has caused such negative thoughts and actions. Denying them such help behind a shield of ‘capacity’ gives that concept a bad reputation, and labelling such people as ‘suicidal’ is unhelpful as it seems impossible to separate that term from a hint of the condemnation that its use as a felony previously carried. The term ‘suicidal’ is no more appropriate, however, for those people who might be seeking to make capacitated, autonomous, and voluntary choices about when and how they would like their life to come to an end. The cutting short of a life is always sad, and support and encouragement to live should always be available, and especially when requested, but if we can envisage any set of circumstances in which a choice to end life might be legitimately made by an adult with decision-making capacity, then we must acknowledge that the use of compulsory powers under mental health laws in order to prevent that exercise of autonomy may be inappropriate. Voluntary death covers a very wide range of circumstances, and in many jurisdictions including England and Wales, the mental health laws, even if newly reformed, are as outdated and unfitting as the enduring label of ‘suicide’ itself.
Funding statement
This research received no specific grant from any funding agency, commercial, or not-for-profit sectors.
Competing interests
The author declares none.
Ethical standards
The author asserts that all procedures contributing to this work comply with the ethical standards of the relevant national and institutional committee on human experimentation and with the Helsinki Declaration of 1975, as revised in 2008.
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