A new paper by Sam Boyle, written with colleagues Andrew McGee and Felicity Wood, addresses the important question of whether someone who has depression could qualify for voluntary assisted dying (VAD). The authors point out that there is common but mistaken assumption that those who request VAD while they are depressed cannot have capacity to request it. As Boyle and his colleagues argue, this assumption contravenes the law on how capacity assessments should proceed. Firstly, there is always a presumption that a patient making a medical decision has capacity to make that decision. This presumption is retained in VAD legislation. Secondly, the law is clear that capacity can’t be decided by whether someone has a particular illness, nor whether we think the person is making a good decision or not. What the law requires is an assessment of the person’s decision-making ability, that is, whether they are able to understand information about a decision, use and weigh that information to make a decision, and communicate the decision in some way. That is all. Provided a person can do those things, whether they have depression or any other mental condition, the law allows them to decide for themselves. Therefore, provided a person with depression can do those things, under Australian law, they should be found to have capacity to request VAD.
The authors acknowledge that the idea of a person with depression accessing VAD may be concerning to some people. However, they argue that excluding people with a particular illness from making certain decisions is inherently problematic, and something that the law has been at pains to avoid. Importantly, the authors point out that depression is not a single phenomenon. It can have varying cognitive symptoms, and can be anything from very mild to very severe. This variation means that a person with depression may have capacity to request VAD, or they may not. Boyle and colleagues argue that when a person with depression requests VAD, there must be a careful, individual assessment of the person’s decision-making abilities. Anything else risks contravening the law.
How to determine the capacity of a person with depression who requests voluntary assisted dying is available online.
