General principles of decision-making capacity are that the decision is task, time, and situation specific and must be informed, voluntary and capable. The presumption of capacity aims to balance the promotion of autonomy with protecting against exploitation and undue influence. Experience has shown that medical and psychiatric diagnoses and cognitive testing alone do not predict incapacity.
In 2023, eligibility for medical assistance in dying (MAiD) will potentially be expanded to include patients suffering solely from mental illness. However, this blog will not address the controversy regarding eligibility for MAiD for mental health patients (which centres on whether or not certain mental illnesses, such as depression, can be considered an irremediable medical condition, and if so, how will that be determined). Nor will this blog address whether a substitute decisions maker may consent to MAiD on behalf of an incapable individual by relying on the wishes expressed by the now-incapable person via an advanced directive for MAiD. Rather, I am interested in discussing the test of capacity for MAiD and the obligation to assess the decision to pursue MAiD is not the result of undue influence.
In Ontario, capacity to consent to a proposed treatment, including MAiD, is defined by the Health Care Consent Act (HCCA) as: “A person is capable with respect to a treatment if the person is able to understand the information that is relevant to making a decision about the treatment and is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”
The test of capacity to consent to treatment, set out in the Ontario HCCA, has been clarified by the Supreme Court of Canada in Starson v Swayze (2003)[i]. The test of appreciation includes requiring the patient to be able to apply the relevant information to his or her circumstances.
I suggest for capacity to consent to MAiD the test of “ability to appreciate” requires expansion to include applying the relevant information to one’s circumstances. This would be in keeping with other public health policies that also acknowledge the interdependency of people’s lives, as in the Ontario Substitute Decisions Act s. 32 which sets out the duty of a guardian of care to foster regular personal contact between the incapable person and supportive family members and friends.
Along the same theme of balancing autonomy with the interdependency of people’s lives, the established legal test for testamentary capacity, derived from Banks v Goodfellow (1870)[ii], sets out that a testator shall be able to comprehend and appreciate the claims to which he ought to give effect, essentially mandating consideration of the impact of the will on natural beneficiaries.
Similarly, public policy regarding the capacity to marry has recently been amended so that it requires consideration of the impact of marriage on existing beneficiaries of a will. Ontario’s Bill 245 – The Accelerating Access to Justice Act (2021) reversed the nullification of a prior will by marriage, thus offering financial protection for beneficiaries from predatory marriages and from those who marry late in life despite lacking testamentary capacity.
I suggest that, for capacity to consent to MAiD, the test of “ability to appreciate” should be expanded to include applying the relevant information to one’s circumstances by requiring an appreciation of the views and wishes of supportive family members and friends.
The proposed amendment to the test of appreciation would not mandate being bound by another’s opinion. However, I suggest that lack of ability to appreciate the views of one’s significant others regarding choosing MAiD and the impact MAiD will have on them would demonstrate compromised rational decision-making and lack of ability to apply the relevant information to one’s circumstances. In those circumstances, the capacity to consent to MAiD would be nullified.
In my clinical experience, following a failed suicide attempt, the most common reason stated by patients for protection against a repeat suicide attempt is the prior lack of consideration of the impact the suicide would have had on their family and friends.
Regarding undue influence, the stated requirement in Carter v. Canada (2015)[iii] is that undue influence can be reliably assessed as part of the consent process is a misconception in my opinion. Firstly, as per Vanier v. Vanier (2017),[iv] a clinician should deal only with the question of vulnerability to undue influence. Secondly, in my clinical experience, I have found it uncommon for a family member or beneficiary to exert undue influence to pressure a patient to pursue MAiD. What worries me is the vulnerability of patients to undue influence from physicians who may embrace therapeutic nihilism and bias patients unduly towards MAiD. This may become particularly relevant if MAiD should become a therapeutic option that is offered as a standard of care for mental health patients. If so, what clinical safeguards will be implemented to avoid both therapeutic paternalism as an obstacle preventing access to MAiD, and therapeutic nihilism as undue influence towards MAiD?
[ii] Banks v Goodfellow (1870) L.R. 5 QB 549