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State/Country Year Evaluator(s) Capacity Standard California 2016 Two physicians must determine that the patient is capable. “If there are indications of a mental disorder, the physician shall refer the individual for a mental health specialist assessment,” defined as either a psychiatrist or a psychologist, to determine whether “the individual has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder.”3 “‘Capacity to make medical decisions’ means that, in the opinion of an individual’s attending physician, consulting physician, psychiatrist, or psychologist,…the individual has the ability to understand the nature and consequences of a health care decision, the ability to understand its significant benefits, risks, and alternatives, and the ability to make and communicate an informed decision to health care providers.”3 Colorado 2016 Two physicians must determine that the patient is capable. “If the attending physician believes that the individual may not be mentally capable of making an informed decision” then the physician must “refer the individual to a licensed mental health professional for a determination of whether the individual is mentally capable.”4 “Mental capacity” or “mentally capable” means that, in the opinion of an individual’s attending physician, consulting physician, psychiatrist, or psychologist, the individual has the ability to make and communicate an informed decision to health care providers.4 District of Columbia 2017 Two physicians must determine that the patient is capable. “If either physician believes the patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the patient to counseling to determine that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.”5 “‘Capable’ means that, in the opinion of a court or the patient’s attending physician, consulting physician, psychiatrist, or psychologist, a patient has the ability to make and communicate health care decisions to health care providers.”5 Hawaii 2019 Hawaii requires two physicians or advanced practice registered nurses determine that patient is capable and also that a psychiatrist, psychologist, social worker, or marriage or family therapist has also determined that the patient “does not appear to be suffering from undertreatment or nontreatment of depression or other conditions which may interfere with the patient’s ability to make an informed decision.”6 “‘Capable’ means that in the opinion of the patient’s attending provider or consulting provider, psychiatrist, psychologist, or clinical social worker, a patient has the ability to understand the patient’s choices for care, including risks and benefits, and make and communicate health care decisions to health care providers.”6 Maine 2019 Two physicians must determine that the patient is “competent”; if either physician believes the patient is “suffering from a psychiatric or psychological disorder or depression causing impaired judgment,” then the patient shall be referred for counseling until such time as the counselor determines that “the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.”7 “‘Competent’ means that, in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist or psychologist, a patient has the ability to make and communicate an informed decision to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available.”7 Montana 2009 Capacity in Montana is determined by any health care provider.8 No distinct statutory guidance or regulation for MAID. Montana defines “decisional capacity” more generally as “the ability to provide informed consent to or refuse medical treatment or the ability to make an informed health care decision as determined by a health care provider experienced in this type of assessment.”8 The right to MAID was established in Baxter v. Montana,9 which requires patients approved for MAID be “competent” but does not offer a definition of this term. New Mexico 2021 Two physicians must determine that the patient is capable. “If an individual has a recent history of a mental health disorder or an intellectual disability that could cause impaired judgment with regard to end-of-life medical decision making, or if, in the opinion of the prescribing health care provider or consulting health care provider, an individual currently has a mental health disorder or an intellectual disability that may cause impaired judgment with regard to end-of-life medical decision making, the individual shall not be determined to have capacity to make end-of-life decisions until the: A. health care provider refers the individual for evaluation by a mental health professional with the training and expertise to assess a person with such a disorder or disability; and B. mental health professional determines the individual to have capacity to make end-of-life decisions after evaluating the individual during one or more visits with the individual.”10 “‘Capacity’ means an individual’s ability to understand and appreciate health care options available to that individual, including significant benefits and risks, and to make and communicate an informed health care decision.”10 New Jersey 2019 Two physicians must determine that the patient is capable. “If, in the medical opinion of the attending physician or the consulting physician, a patient…may not be capable, the physician shall refer the patient to a mental health care professional to determine whether the patient is capable.”11 “‘Capable’ means having the capacity to make health care decisions and to communicate them to a health care provider, including communication through persons familiar with the patient’s manner of communicating if those persons are available.”11 Oregon 1994 Two physicians must determine that the patient is capable. If either physician believes the patient is “suffering from a psychiatric or psychological disorder or depression causing impaired judgment,” then the patient shall be referred for counseling until such time as the counselor determines that “the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.”12 “Capable” means that, in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist, or psychologist, a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available. In addition, the patient cannot be “suffering from a psychiatric or psychological disorder or depression causing impaired judgment.”12 Vermont 2013 Two physicians must determine that the patient is capable. The attending physician must either verify “that the patient did not have impaired judgment” or refer the patient to a “psychiatrist, psychologist, or clinical social worker licensed in Vermont” to make this verification.13 “‘Capable’ means that a patient has the ability to make and communicate health care decisions to a physician, including communication through persons familiar with the patient’s manner of communicating if those persons are available….‘Impaired judgment’ means that a person does not sufficiently understand or appreciate the relevant facts necessary to make an informed decision.”13 Washington 2018 Two physicians must determine whether patient is “competent”; if “a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment,” then a qualified mental health provider must determine that “the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.”14 “‘Competent’ means that, in the opinion of a court or in the opinion of the patient’s attending qualified medical provider, consulting qualified medical provider, psychiatrist, or psychologist, a patient has the ability to make and communicate an informed decision to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available.”14 Australia (New South Wales) 2019-2023 Each Australian state has its own MAID statute, but the New South Wales statute (2023) is reasonably representative. One practitioner is required to determine whether the patient has “decision-making capacity in relation to voluntary assisted dying” but must refer to a second physician for assessment if uncertain.15 NSW law states that a “patient has decision-making capacity in relation to voluntary assisted dying if the patient has the capacity to (a) understand information or advice about a voluntary assisted dying decision required under this Act to be provided to the patient, and (b) remember the information or advice referred to in paragraph (a) to the extent necessary to make a voluntary assisted dying decision, and (c) understand the matters involved in a voluntary assisted dying decision, and (d) understand the effect of a voluntary assisted dying decision, and (e) weigh up the factors referred to in paragraphs (a), (c) and (d) for the purposes of making a voluntary assisted dying decision, and (f) communicate a voluntary assisted dying decision in some way.” A “patient is (a) presumed to have the capacity to understand information or advice about voluntary assisted dying if it reasonably appears the patient is able to understand an explanation of the consequences of making the decision, and (b) presumed to have decision-making capacity in relation to voluntary assisted dying unless the patient is shown not to have the capacity.”15 Austria 2021 “The establishment of an advance directive must be preceded by clarification by two medical professionals, one of whom must have palliative medical qualifications. They must independently confirm that the person willing to die is capable of making decisions and has expressed a free and self-determined decision….If, during the course of medical clarification, an indication arises that the person willing to die may have a clinically significant mental disorder, the result of which could be the desire to end their life, an assessment of this disorder, including consultation by a specialist in psychiatry and psychotherapeutic medicine or a clinical psychologist, must be arranged….; That specialist must determine that “the person willing to die must be of legal age and decision-capable both at the time of clarification and at the time of establishing the advance directive Their capacity to make decisions must be indisputably present.”16 The statute does not define capacity. Belgium 2002 Law requires that patient be “legally competent and conscious at the moment of making the request,” also that “the request is voluntary, well-considered and repeated, and is not the result of any external pressure.”17 The statute does not define capacity or “legally competent.” Canada 2014-2016 Two medical providers (either physicians or nurse practitioners) must determine that the patient requesting MAID is “capable of making decisions with respect to their health.”18A more recent statute (2021) also allows for MAID for “dying persons who have been found eligible to receive medical assistance in dying and are awaiting its provision to obtain medical assistance in dying even if they lose the capacity to provide final consent, except if they demonstrate signs of resistance to or refusal of the procedure.”19 The statute does not define capacity. Luxembourg 2009 A physician must determine that “the patient is a capable and conscious adult at the time of his or her request.”20 The statute does not define capable. Netherlands 2001 The statute requires that the decision to choose MAID be “well-considered” and that the physician exercise “due care” in assessment but does not directly address capacity or competence.21 Neither capacity or competence are defined or addressed in the statute. New Zealand 2021 Patient must “be competent to make an informed decision about assisted dying” as assessed by two medical practitioners. If either or both question whether competence is “established to satisfaction,” a psychiatrist must conduct an independent assessment.22 “Competent to make an informed decision about assisted dying” is specifically defined by four criteria in the statute. The person must be able to “(a) understand information about the nature of assisted dying that is relevant to the decision; and (b) retain that information to the extent necessary to make the decision; and (c) use or weigh that information as part of the process of making the decision; and (d) communicate the decision in some way.”22 Portugal 2023 “The opinion of a doctor specializing in psychiatry is mandatory, whenever there is a one of the following situations: a) The guiding physician and/or the specialist physician have doubts about the capacity of the person who requests medically assisted death revealing a serious, free and enlightened will; b) The guiding physician and/or the specialist physician admit that the person has a mental disorder or medical condition that affects [the patient’s] ability to make decisions.” That psychiatrist then makes a determination of capacity.23 The statute does not define capacity. Spain 2021 The statute requires “factual capacity” and states that “factual incapacity” is to be determined by a physician “in accordance with the operating protocols determined by the Interterritorial Council of the National Health System.”24 The statute defines “situation of factual incapacity” as “a situation in which the patient lacks sufficient understanding and will to govern themselves autonomously, fully, and effectively, regardless of whether measures of support for the exercise of their legal capacity exist or have been adopted.”24 Switzerland Officially legal since 1937, but practice emerged in 1980s Swiss law does not prohibit assisted suicide except in cases where the motive is profit or self-interest.25 The Swiss Academy of Medical Sciences lays out guidelines for MAID that are the standard of care in Switzerland. These state that “the self-determination of a patient with capacity must be respected” with regard to MAID.26 The Swiss Academy of Medical Sciences offers extremely detailed guidance on capacity assessment for MAID but relies on the following four elements: “Cognitive ability: the ability to grasp at least the fundamental elements of the information relevant for the decision; Evaluative ability: the ability to assign a personal meaning to the decision situation, in the light of the various options available; Decisional ability: the ability to make a decision on the basis of the information available and one’s own experience, motives and values; Expressive ability: the ability to communicate and defend this decision.”27 MAID, medical aid in dying; NSW, New South Wales
Notes: MAID became legal in Quebec in 2014 but was not legalized until 2015 in the remainder of Canada. MAID for patients with psychiatric illness has been placed on hold in Canada until 2027.28 Various Australian states legalized the practice over a four-year time period, with the first, Victoria, legalizing MAID in 2019, and the last, New South Wales, in 2023; the practice was previously legal in the Northern Territory (1996-97) but is not at present. Colombia, Germany, and Italy have all legalized MAID through judicial opinions, but statutory regulation has not yet codified capacity standards.
State Is MAID Legal? Potential Liability for Assessing Capacity for MAID Statutory Language Alabama No Yes “Any person who deliberately assists another person to commit suicide or provides aid in dying is guilty of a Class C felony. (b) Any physician or health care provider who prescribes any drug, compound, or substance to a patient deliberately to aid in dying or assists or performs any medical procedure deliberately to aid in dying is guilty of a Class C felony.”60 Alaska No Yes “A person commits the crime of manslaughter if the person…intentionally aids another person to commit suicide”61 Arizona No No Law only applies if providing “physical means” for suicide.62 Arkansas No Unclear “It is unlawful for a physician or healthcare provider to commit the offense of physician-assisted suicide by: (1) Prescribing any drug, compound, or substance to a patient with the express purpose of assisting the patient to intentionally end the patient’s life; or (2) Assisting in any medical procedure for the express purpose of assisting a patient to intentionally end the patient's life.”63 California Yes No NA Colorado Yes No NA Connecticut No Yes “A person is guilty of manslaughter in the second degree when…he intentionally causes or aids another person, other than by force, duress or deception, to commit suicide.”64 Delaware No Yes “A person is guilty of promoting suicide when the person intentionally causes or aids another person to attempt suicide, or when the person intentionally aids another person to commit suicide.”65 District of Columbia Yes No NA Florida No Yes “Every person deliberately assisting another in the commission of self-murder shall be guilty of manslaughter, a felony of the second degree…”66 Georgia No Unclear Georgia’s statute states: “Any person who publicly advertises, offers, or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose is guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.” Whether a hospital psychiatrist conducting a capacity assessment for MAID referral would be considering to be “holding himself or herself out” is uncertain.67 Hawaii Yes No NA Idaho No Yes “A person is guilty of a felony if such person…[p]articipates in a physical act by which another person commits or attempts to commit suicide.” Whether a capacity assessment constitutes a physical act is undetermined.68 Illinois No Unclear “A person commits inducement to commit suicide when he or she…[w]ith knowledge that another person intends to commit or attempt to commit suicide, intentionally (i) offers and provides the physical means by which another person commits or attempts to commit suicide, or (ii) participates in a physical act by which another person commits or attempts to commit suicide.” Whether a capacity assessment constitutes a physical act is undetermined.69 Indiana No Unclear “A person who has knowledge that another person intends to commit or attempt to commit suicide and who intentionally does either of the following commits assisting suicide, a Level 5 felony: (1) Provides the physical means by which the other person attempts or commits suicide. (2) Participates in a physical act by which the other person attempts or commits suicide.” Whether a capacity assessment constitutes a physical act is undetermined.70 Iowa No Yes “A person commits a class ‘C’ felony if the person intentionally or knowingly assists, solicits, or incites another person to commit or attempt to commit suicide, or participates in a physical act by which another person commits or attempts to commit suicide.”71 Kansas No Unclear “Assisting suicide is…participating in a physical act by which another person commits or attempts to commit suicide.” Whether a capacity assessment constitutes a physical act is undetermined.72 Kentucky No Unclear “A person commits a Class C felony when the person…[p]articipates in a physical act by which another person commits or attempts to commit suicide.” Whether a capacity assessment constitutes a physical act is undetermined.73 Louisiana No Yes “Criminal assistance to suicide is: (1) The intentional advising or encouraging of another person to commit suicide or the providing of the physical means or the knowledge of such means to another person for the purpose of enabling the other person to commit or attempt to commit suicide. (2) The intentional advising, encouraging, or assisting of another person to commit suicide, or the participation in any physical act which causes, aids, abets, or assists another person in committing or attempting to commit suicide.”74 Maine Yes No NA Maryland No No Statute only makes it a crime to “knowingly provide the physical means by which another individual commits or attempts to commit suicide with knowledge of that individual’s intent to use the physical means to commit suicide; or…knowingly participate in a physical act by which another individual commits or attempts to commit suicide.”75 Massachusetts No No No statutes in Massachusetts directly addressed MAID, and although the state Supreme Court has found no right to MAID, there do not appear to be grounds for criminal liability for capacity assessments for referral. Michigan No Yes “A person who knows that an individual intends to kill himself or herself and does any of the following with the intent to assist the individual in killing himself or herself is guilty of criminal assistance to the killing of an individual, a felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00, or both: (a) Provides the means by which the individual attempts to kill himself or herself or kills himself or herself. (b) Participates in an act by which the individual attempts to kill himself or herself or kills himself or herself. (c) Helps the individual plan to attempt to kill himself or herself or to kill himself or herself.”76 Of note, the Michigan statute does not preempt common law principles that may also prohibit such assessments. Minnesota No Yes Statute reads “Whoever intentionally advises, encourages, or assists another in taking the other's own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both.”77 Subsequent to its passage, the Minnesota Supreme Court in State v. Melchert-Dinkel (2014) declared the “encourages” and “advises” provisions to be unconstitutional but also held that assistance can consist solely of speech.78 Mississippi No Yes “A person who willfully, or in any manner, advises, encourages, abets, or assists another person to take, or in taking, the latter’s life, or in attempting to take the latter's life, is guilty of felony and, on conviction, shall be punished by imprisonment in the penitentiary not exceeding ten years, or by fine not exceeding one thousand dollars, and imprisonment in the county jail not exceeding one year.”79 Missouri No Yes “A person commits the offense of voluntary manslaughter if he or she…[k]nowingly assists another in the commission of self-murder.”80 Montana Yes No Of note, providers may still face sanction from employers and professional associations. Nebraska No Yes “A person commits assisting suicide when, with intent to assist another person in committing suicide, he aids and abets him in committing or attempting to commit suicide.”81 Nevada No No No statutes in Nevada directly addressed MAID. New Hampshire No Yes “A person is guilty of causing or aiding suicide if he purposely aids or solicits another to commit suicide”; “Causing or aiding suicide is a class B felony if the actor’s conduct causes such suicide or an attempted suicide. Otherwise it is a misdemeanor.”82 New Jersey Yes No NA New Mexico Yes No NA New York No Yes “A person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide. Promoting a suicide attempt is a class E felony.”83 North Carolina No No No statute appears to apply to MAID in North Carolina. North Dakota No Yes “Any person who intentionally or knowingly aids, abets, facilitates, solicits, or incites another person to commit suicide, or who provides to, delivers to, procures for, or prescribes for another person any drug or instrument with knowledge that the other person intends to attempt to commit suicide with the drug or instrument is guilty of a class C felony.”84 Ohio No Unclear “No person shall knowingly cause another person to commit or attempt to commit suicide by…[p]articipating in a physical act by which the other person commits or attempts to commit suicide.”85 Whether a capacity assessment constitutes a physical act is undetermined. Oklahoma No Yes “Every person who willfully, in any manner, advises, encourages, abets, or assists another person in taking his own life, is guilty of aiding suicide.”86 Oregon Yes No NA Pennsylvania No Yes “Aiding or soliciting suicide as an independent offense. A person who intentionally aids or solicits another to die by suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor of the second degree.”87 Rhode Island No Yes “An individual or licensed health care practitioner who with the purpose of assisting another person to commit suicide knowingly…[p]articipates in a physical act by which another person commits or attempts to commit suicide is guilty of a felony and upon conviction may be punished by imprisonment for up to ten years, by a fine of up to ten thousand dollars ($10,000) or both.”88 South Carolina No Unclear “It is unlawful for a person to assist another person in committing suicide. A person assists another person in committing suicide if the person…participates in a physical act by which the other person commits or attempts to commit suicide.”; “The licensing agency which issued a license or certification to a licensed health care professional who assists in a suicide in violation of subsection…shall revoke or suspend the license or certification of that person” on conviction.89 South Dakota No Yes “Any person who intentionally in any manner advises, encourages, abets, or assists another person in taking or in attempting to take his or her own life is guilty of a Class 6 felony.”90 Tennessee No Unclear “A person commits the offense of assisted suicide who: (1) Intentionally provides another person with the means by which such person directly and intentionally brings about such person's own death; or (2) Intentionally participates in a physical act by which another person directly and intentionally brings about such person's own death.” Whether capacity assessment for referral might be considered “intentionally participates in a physical act” is unclear.91 Texas No Yes “A person commits an offense if, with intent to promote or assist the commission of suicide by another, he aids or attempts to aid the other to commit or attempt to commit suicide.”92 Utah No Yes “An actor commits manslaughter if the actor…intentionally, and with knowledge that another individual intends to commit suicide or attempt to commit suicide, aids the individual to commit suicide.”93 Vermont Yes No NA Virginia No Yes Civil liability and professional misconduct. “Any person who knowingly and intentionally, with the purpose of assisting another person to commit or attempt to commit suicide, participates in a physical act by which another person commits or attempts to commit suicide shall be liable for damages as provided in this section and may be enjoined from such acts.”94; “A licensed health care provider who assists or attempts to assist a suicide shall be considered to have engaged in unprofessional conduct for which his certificate or license to provide health care services in the Commonwealth shall be suspended or revoked by the licensing authority.”94 Washington Yes No NA West Virginia No No No statutes in West Virginia directly addressed MAID, although it is mentioned in passing in the state’s advance directive law.95 Wisconsin No Yes “Whoever with intent that another take his or her own life assists such person to commit suicide is guilty of a Class H felony.”96 Wyoming No Unclear “A person is guilty of criminally negligent homicide if he causes the death of another person by conduct amounting to criminal negligence.”97 MAID, medical aid in dying
