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.