All About Estates

Update on Suggested Amendment for Capacity to Consent to MAiD

The annual meeting of the Canadian Academy of Geriatric Psychiatry took place in Montreal two weeks ago. Medical Assistance in Dying (MAiD) was the focus of both a plenary discussion of MAiD in geriatric psychiatry presented by Dr. Lilian Thorpe, Professor in the Departments of Psychiatry & Community Health & Epidemiology at University of Saskatchewan; and a workshop discussion on capacity to consent to MAiD led by myself and colleagues of the Capacity Clinic.

The two discussions at this year’s annual conference emphasized potential complexities in the evaluation of capacity to consent to MAiD. In Ontario, the Health Care Consent Act (HCCA) sets out a two-part test for capacity to consent:

(a) Is the person able to understand information relevant to making the decision?

(b) Is the person able to appreciate consequences of a decision or lack of a decision?

A person who lacks the “ability to appreciate” is one who:

  1. lacks the ability to realistically appraise the risk and likely outcome of a decision or lack of decision or lacks the ability to plan and to take action to implement the plan; and/or
  2. lacks the ability to rationally manipulate information to reach a reasoned decision consistent with personal values and free from delusional beliefs.

Cognitive tasks include realistic appraisal of outcome and justification of choice. The person should be able to understand and consistently communicate their specific choice and be able to plan, organize, sequence, and execute actions rationally and consistently in response to a particular decision.

Per the Supreme Court of Canada,[i] the test of “appreciation” in the Ontario HCCA requires the person to be able to recognize the manifestations of their condition and to be able to apply the relevant information to their circumstances.

When being evaluated for capacity prior to healthcare intervention, people are presumed to have capacity unless reasonable grounds exist to the contrary. The presumption of capacity aims to balance the promotion of autonomy with protection against exploitation and undue influence. Autonomy refers to self-determination. However, this definition often neglects human interdependency: that a person may need others to support their decision-making and, while the person may be duly influenced, the person is still capable of autonomous decision-making.

Dr. Thorpe suggested that the person choosing MAiD should have the ability to appreciate fully the broad ramifications to self and others. In a case she presented, she described determining a patient incapable of choosing MAiD due to the patient’s failure to appreciate the potential harmful impact of the decision on a dependent child.

Dr. Thorpe recommended that it is appropriate to obtain collateral information from others relating to the person’s current and previous functioning, and current and previous wishes and beliefs. This is in keeping with the Canadian Association of MAiD Assessors and Providers (CAMAP) white paper on complex capacity assessments[ii] that suggests collateral history from those who know the patient well may be particularly helpful.

Despite recommendations that clinicians consider the involvement of caregivers in the MAiD process,[iii] the model of MAiD delivery in Canada lacks a legislative requirement for caregivers to be included or considered in the formal MAiD evaluation.[iv]

In my April 2022 blog, I suggested that the test of “ability to appreciate” be expanded to include an appreciation of the views and wishes of family members and friends. I explained the proposed amendment would not mandate being bound by others’ opinions, but that that lack of ability to appreciate the views of one’s significant others would demonstrate a lack of ability to apply the relevant information to one’s circumstances. From discussions with Dr. Thorpe, I suggest an appreciation of the impact MAiD will have on family members and friends also be included in fulfilling the proposed amendment of the appreciation test for consenting to MAiD.


[i] Starson v. Swayze, SCC [2003]


[iii] Gamondi C, Pott M, Preston N, et al. Family Caregivers’ Reflections on Experiences of Assisted Suicide in Switzerland: A Qualitative Interview Study. J Pain Symptom Manage 2018;55(4):1085-1094

[iv] Goldberg R, Nissim R, An E, et al Impact of medical assistance in dying (MAiD) on family caregivers BMJ Supportive & Palliative Care. Published Online First: 01 March 2019. doi: 10.1136/bmjspcare-2018-001686

About Dr. Richard Shulman
Dr. Shulman is a geriatric psychiatrist at Trillium Health Partners and is an assistant professor at the University of Toronto. He is medical director of the Capacity Clinic and available for independent medical-legal capacity assessments.

1 Comment

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.