How to determine the capacity of a person with depression who requests voluntary assisted dying

Abstract

Current laws on voluntary assisted dying (VAD) appear to allow access to VAD for a person diagnosed with depression, provided that the person retains decision-making capacity. Assessing the capacity of a person with depression who is requesting VAD is a highly challenging and weighty task. We will argue that this person is in a comparable position to a person who is diagnosed with anorexia and who is refusing treatment for anorexia, in that the request itself might be taken as evidence of the diagnosed illness. Using cases involving anorexia, we will show that in relation to depression and VAD, there is a danger of falling into reasoning in which the medical question of diagnosis is merged with the legal question of capacity, such that the question of capacity will be a foregone conclusion. We argue that this contravenes the law of capacity that exists in current VAD legislation. We will put forward a suggestion of how the determination of capacity can be made in a manner that avoids the foregone conclusion, but also acknowledges the nature of depression and its effect on a person’s decision-making ability.

Keywords:

• anorexia
• capacity
• depression
• medical assistance in dying
• voluntary assisted dying

Introduction

In recent years, voluntary assisted dying (VAD) has been legalised in all six states in Australia, and in all of Canada.¹ In Australia, to be eligible for VAD, a person must have an advanced, serious medical condition that is causing intolerable suffering,² must be acting without coercion³ and they must have decision-making capacity in relation to VAD.⁴ The medical condition must be expected to cause death.⁵ This requirement means that in Australia, a person must have a terminal physical illness, and would not be able to access VAD owing to suffering caused by a mental illness. This contrasts with models such as those in the Netherlands and Belgium, and as of May 2024, Canada, where a person with a serious, advanced mental illness that is causing suffering may be eligible for VAD without their having a terminal physical illness.⁶

However, an important question for all jurisdictions, including Australia, is whether someone with a terminal physical illness who also has a mental illness, could qualify for VAD. Concern over this issue played an important role in debates over VAD. One of the arguments made by opponents of VAD legalisation is that it may lead to vulnerable people inappropriately accessing VAD,⁷ and one group about whom particular concern is expressed is those suffering from a mental illness, in particular, depression. There is a widely held view that people whose request for VAD stems from depression ought to be assisted with their depression, not assisted to die.⁸

This paper considers whether under the existing VAD laws someone who has a terminal illness and also has depression should be able to access VAD. This is an issue that requires consideration because despite concerns about this group, most VAD legislation does not explicitly exclude people with depression, nor any other specific mental condition, from accessing it. Moreover, it requires consideration because it will be a regular occurrence. It is known that among people with terminal physical illnesses there is a higher-than-average rate of depression.⁹

By not excluding depression, drafters of the VAD law have determined that the capacity rule is a sufficient safeguard to prevent a person with depression inappropriately accessing VAD. Therefore, much rests on how the test of capacity operates. The capacity definition in VAD law mirrors the definition used for healthcare decisions generally. Therefore, in order to determine how the capacity of a person with depression who is requesting VAD should be assessed, the existing body of law relating to capacity for healthcare decisions must be appraised.

The term ‘capacity’ is used in Australia to describe both what might be called ‘mental capacity’, being the mental abilities of the person, and ‘legal capacity’ or ‘competence’, being the legal measure that determines whether a person will be legally authorised to make a particular decision. In this paper, we will use the term ‘capacity’ to refer to legal capacity. Unlike mental capacity, legal capacity is a threshold issue; a person either has legal capacity or they do not.¹⁰ Decisions on legal capacity are in the first instance made by medical practitioners, and most of these decisions are never reviewed by a court. Nevertheless, when these decisions have been reviewed, courts have taken the view that, while the court may take medical evidence into account when determining capacity, it must reach its own conclusion on capacity.¹¹ Indeed, there are examples of courts reaching a conclusion on a person’s capacity contrary to all medical evidence put before it.¹² Therefore, although doctors will be required to determine whether someone has decision-making capacity for VAD, if they incorrectly apply the law of capacity, these determinations may be subject to challenge.¹³ While some uncertainties remain about aspects of the test of capacity,¹⁴ there are several principles on which there is general agreement. In particular, there is agreement that the test of capacity is a functional test, that is, it is to be based on the decision-making abilities of the person, and not determined either by ‘outcome’, whether the person has made a decision seen to be wise or unwise, nor by ‘status’, whether the person has a particular mental illness.

Our paper seeks to explain how an assessment of capacity of a person with depression who is seeking VAD can be performed so that it does not offend these agreed legal principles. Our analysis will be relevant for all VAD regimes that require a person to have legal capacity in order to request it. We will not consider the separate question of whether depression alone, that is, in the absence of a terminal illness, should qualify a person for VAD. As noted, VAD for mental illness alone is not legal in Australia. In jurisdictions where it is legal, our analysis here will only be relevant to the question of whether that person has capacity to make the request. It will not be relevant to other possible eligibility questions, like treatability and suffering.

We acknowledge that this is an ethically-charged question. On one hand, the legal test of capacity may have an important protective role to play in relation to VAD and certain vulnerable groups. On the other hand, preventing all people who have a particular mental illness from accessing VAD could be discrimination.¹⁵ We argue that in these circumstances, it is especially important that the existing law should be fully understood, so that it can be coherently and consistently applied. Although it is sometimes thought that the presence of depression would exclude the possibility of a person having capacity to request VAD, as this paper will show, that would be an incorrect and inappropriate application of the test of capacity.

Depression, the diagnosis

Depression is a widely-used term that may have medical and non-medical meaning. The term can be used to describe a mood, which may or may not be associated with a mental illness. It can also be used to refer to a specific diagnosable mental illness, for which depressed mood is a symptom. In this paper, we are using ‘depression’ to denote the mental illness, sometimes referred to as ‘clinical depression’. The DSM-5 is the most widely used manual for defining and diagnosing mental illness.¹⁶ Rather than a single entity, the DSM defines a group of ‘depressive disorders’, including Major Depressive Disorder.¹⁷ In order to be diagnosed with one of these disorders under the DSM, a certain defined number of the associated symptoms must be present. Under the DSM-5, to be diagnosed with Major Depressive Disorder, a person must have at least five out of a list of nine symptoms during the same two-week period. At least one of the symptoms must be either a depressed mood or loss of interest or pleasure. Importantly, for the purposes of this discussion, one of the other nine symptoms is ‘recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide’.¹⁸ The symptoms must cause ‘clinically significant distress or impairment in social, occupational, or other important areas of functioning’,¹⁹ and must be beyond a ‘normal response’ to events such as ‘serious medical illness or disability’.²⁰ Making this distinction requires ‘the exercise of clinical judgment’, considering both the individual’s history and ‘cultural norms for the expression of distress in the context of loss’.²¹

Depression and VAD

Given that a plan for suicide is one of the symptoms of depression, it is not surprising that studies have found a correlation between depression and requests for VAD.²² There is also empirical evidence that treating depression will remove the desire for VAD. In a study of 22 elderly patients with diagnoses of major depression, it was found that after treatment for depression, of the eight who had indicated a preference for euthanasia before treatment, only two maintained that preference after treatment.²³ Relatedly, Ganzini et al.’s study showed that patients who were diagnosed with depression were more likely to request life-sustaining treatment after they had been given treatment for depression.²⁴

Since depression may be treatable, there is a view that if a person with depression requests VAD, a healthcare provider’s task is to treat the mental illness, not accede to the request. Indeed, allowing a person with depression to access VAD might be seen as being complicit with the illness.²⁵ In its statement on euthanasia, the World Psychiatric Association argues that ‘the views of a patient may be distorted by mental illness such as depression’, and that the psychiatrist’s duty is ‘first and foremost, the promotion of health, the reduction of suffering and the protection of life’.²⁶ Yet despite these views, provided other criteria for VAD are met – terminal illness and suffering – eligibility for VAD under Australian legislation is determined by decision-making capacity.²⁷ As noted, the capacity test in that legislation does not explicitly exclude depression.

The law of capacity has developed in a largely consistent way across common-law jurisdictions.²⁸ As noted, one of the central features of capacity law is what is described as a ‘functional’ approach. This means that the issue is a person’s decision-making abilities, not whether the person has a particular mental condition (the ‘status’ approach) and not whether the person makes what may be viewed as being a bad decision (the ‘outcome’ approach).²⁹ Despite some wording differences between jurisdictions, the functional approach requires assessment of the person’s ability to understand information related to the decision, and then use that information in order to reach a decision.³⁰ Another feature of the law is that capacity is decision-specific, that is, it must be determined in relation to a particular decision.³¹ A further important aspect of the law of capacity is that in all cases, capacity must be presumed,³² something that is explicitly retained in Australian VAD legislation.³³

The fact that the test for capacity is functional and not status-based means that people may be found to have capacity despite having a mental illness. For example, courts have found decision-makers to have capacity to make medical decisions despite diagnoses of paranoid schizophrenia (Re C,³⁴ Starson v Swayze³⁵) and bi-polar disorder (Re SB).³⁶ C was able to refuse an amputation of a gangrenous foot; Starson was able to refuse treatment for mental illness; and SB was able to request a termination of pregnancy. In each of these cases, capacity was found, despite the fact that the individual’s mental illness was of a severity such that they were actually detained under mental health legislation. As evidenced by these cases, the law is clear that a person’s ‘status’ as having a mental illness will not be determinative of their capacity. Therefore, by retaining the existing law of capacity in the VAD legislation, legislators appear to have allowed for the possibility of a person with depression having capacity to request and access VAD.

Depression and VAD: the trouble with causation

This lack of automatic exclusion may cause concern. As noted above, one of the diagnostic symptoms of depression is a desire to die. What if a person’s request for VAD was caused by their depression, such that, if the depression were successfully treated, the request would be withdrawn? This is a plausible scenario. Six out of eight participants in Hooper et al.’s study changed their minds about euthanasia after their depression was treated. Acceding to a person’s request for VAD, where the request is caused by the depression, seems highly inappropriate. Therefore, it is reasonable to seek to determine whether a person’s request for VAD was caused by depression when determining that person’s eligibility for VAD. However, we will show there are significant problems in trying to determine causation in relation to depression and VAD under the applicable law.

The most obvious way that causation could be assessed is by requiring a person with depression who requests VAD to first have their depression treated. If the request for VAD is maintained after successful treatment for depression, then clearly depression cannot be causing the request. This course of action has been advocated for in relation to depression and refusal of medical treatment,³⁷ and it is likely to be considered in relation to VAD. Holmes et al. state that it is ‘usual practice’ that, when a patient has depressive symptoms and requests access to VAD, a trial of anti-depressants should be recommended.³⁸

It is very possible that a patient will consent to a course of treatment for depression, in which case this procedure can be followed. The problem is if this course of treatment is deemed to be obligatory. If so, and the patient refuses treatment for depression, then some kind of involuntary treatment would be necessary. Whether or not that would be ethically appropriate, there is no legal mechanism allowing involuntary treatment for depression in order to determine whether a person has capacity to make a particular decision.³⁹ Involuntary treatment for mental illness requires authorisation under mental health legislation, which requires the person to be, owing to their mental illness, a danger to themselves or others.⁴⁰ A person diagnosed with depression requesting VAD may not qualify. Moreover, even if they did qualify, it would be disruptive and challenging to subject a suffering, dying person to a separate, complex legal regime.

Additionally, in order to be otherwise eligible for VAD, a person must be expected to die within a time frame that may be shorter than the treatment course for depression. Therefore, as Holmes et al. point out, requiring a full course of treatment for depression before a person can access VAD may operate as an effective ban on accessing VAD in the case of depression.⁴¹

Another means of determining whether a request for VAD is caused by depression is to consider the person’s views on VAD before they experienced depression. If the person had previously indicated a preference for VAD in the kind of circumstances they were now in, it could be concluded that the VAD request was not caused by the depression. If their request for VAD was different from their previously expressed views, this could be taken as indicative of the request being caused by the depression.⁴²

Again, there is a problem with this. People might change their minds, and have a right to do so. People who otherwise qualify for VAD are experiencing difficult circumstances for the first time, and may well change their mind about VAD when actually faced with a terminal illness and unbearable suffering. The law cannot disbar someone from accessing VAD because of anything they have previously believed. Moreover, capacity is time specific, that is, it is a test of a person’s current ability to understand and process information. The fact that a person’s decision is different now to what it was before depression does not demonstrate a presence or absence of capacity. Therefore, whether or not a person’s views on VAD have changed since before they had depression cannot be determinative of their capacity, nor their eligibility for VAD.

The cautionary tale of anorexia and treatment refusal

These challenges bear similarity to those associated with a person with anorexia who is refusing treatment for their condition. The resemblance is that the aversion to treatment might be seen as a manifestation of their disorder, which would resolve once the disorder is successfully treated. Anorexia and depression are not precisely equivalent; they are different diagnoses with different symptoms, as well as different social and medical contexts. Nevertheless, we argue that there are sufficient similarities between the two that problems in one context should be heeded in the other.

Most decisions about capacity are made by medical professionals, not courts, but there is a series of cases between 2012 and 2016 in which young women with anorexia were found to lack capacity to refuse their treatment by the England and Wales Court of Protection.⁴³ The reasoning used in these cases present a cautionary tale for depression, because they demonstrate how seeking causality in relation to a mental illness can lead to reasoning in which the correct test of capacity is not applied.

In those cases, the same phenomenon, an aversion to food, becomes evidence of both the cause: anorexia, and the effect: incapacity.⁴⁴ This, it has been shown, means a form of circular reasoning is used in these cases, the result of which, as Jackson J conceded in Re E (Medical Treatment: Anorexia), is a ‘Catch-22’ situation, in which the person’s refusal of treatment ‘proves’ they lack capacity to make that decision.⁴⁵ Therefore, the effective decision as to their capacity was not an assessment of their functional abilities, but their diagnosis. This is reflected in these court decisions, where no tangible evidence of why the women failed the capacity test was presented.⁴⁶

This reasoning prevents people with a diagnosis of anorexia from being able to make legally effective decisions about their treatment. Of course, anorexia may be very relevant to capacity. But diagnosis is a separate step from capacity assessment, and the functional approach to capacity requires that the two not be merged. If there is no meaningful separation between the determinations of diagnosis and capacity, this represents an application of the status-based capacity test that the common law has sought to avoid. It means that if the person has a particular illness, they will automatically be unable to make a particular decision.

A departure from the functional test of capacity is a significant problem. The development of the functional test occurred in response to previous unfair assumptions that were made about people with mental illnesses.⁴⁷ It is seen as a change associated with greater rights for people with mental disabilities.⁴⁸

Unlike the test of legal capacity, diagnosis of mental illness is a medical, not legal, question, applying medical judgment, and using definitions of illnesses developed within medicine. The DSM-5 itself provides a warning about conflating diagnosis and capacity. It contains a ‘cautionary statement for forensic use’, saying that its diagnostic criteria are primarily designed to assist in ‘clinical assessment, case formulation and treatment planning’. While it may assist in determining legal questions, ‘[i]n most situations, the clinical diagnosis of a DSM-5 medical disorder […] does not imply that an individual with such a condition meets legal criteria for […] a specified legal standard (e.g. for competence)’. It continues:

For the latter, additional information is usually required beyond that contained in the DSM-5 diagnosis, which might include information about the individual’s functional impairments and how these impairments affect the particular abilities in question. It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability.⁴⁹

There is good reason to think that decisions about VAD and depression are similarly at risk of the ‘Catch-22’ thinking employed in relation to anorexia that effectively reinstates the ‘status’ test of capacity. As noted, the relationship between the illness and the decision are understood in a similar way. Like anorexia and refusal of food, a plan for suicide is one of the diagnostic criteria for depression.⁵⁰ In Re E (Medical Treatment: Anorexia), the medical evidence heard by the court was that ‘anyone with severe anorexia’ would lack capacity.⁵¹ Similarly, 58% of forensic psychiatrists in the United States of America surveyed believed the presence of depression would necessarily result in a finding of incapacity for the purposes of obtaining assistance in dying.⁵² Further, acceding to a depressed person’s request to die is characterised as being complicit with the illness,⁵³ precisely as is the case in relation to a person with anorexia’s treatment refusal.⁵⁴

If the same type of reasoning is followed in relation to depression and VAD as has been with anorexia and treatment refusal, evidence of a person’s actual understanding of the decision they are making would become irrelevant, and the widely accepted functional test of capacity would not be properly applied.

Depression and concern about ‘pathological values’

Arguing, as we do, that the test of capacity should remain a separate step from diagnosis, made on a functional assessment of capacity, raises a potential concern. There is a body of scholarship that argues ‘false positives’ – people being incorrectly found to have capacity – are a particular risk in relation to mental illnesses like depression. It has been argued that capacity tests have a ‘cognitive bias’,⁵⁵ which will detect intellectual disabilities and mental illnesses that affect cognition, like schizophrenia. However, the argument goes, their cognitive focus means that capacity tests will not register the effects of mental illnesses that manifest in emotional disturbance.⁵⁶

This argument about cognitive bias in relation to tests of capacity has been specifically made in relation to depression.⁵⁷ Eliot first raised this issue in relation to people with depression who are asked to participate in medical research. He argued that the person ‘may be aware that a [research] protocol carries risks, but simply not care about those risks’.⁵⁸ He stated:

depression is primarily about despair, guilt, and a loss of motivation, while competence is about the ability to reason, to deliberate, to compare, and to evaluate. Often these latter abilities are ones that depression leaves intact.⁵⁹

Rudnick makes an equivalent claim in relation to depression and decisions to refuse treatment for mental illness. He argues that a person with ‘chronic treatment resistant depression’ might not care about their own future. These ‘pathological values’⁶⁰ could lead them to refuse psychiatric treatment that they otherwise would have accepted. Steinbock shares this specific concern in relation to depression and the request for VAD. He explains that a person’s ability to ‘understand and reason’ may not be affected by their illness, but that ‘[g]uilt and worthlessness may make individuals believe that suffering and death is deserved’.⁶¹ These writers suggest that people be disbarred from making decisions that are founded on what can be described as ‘pathological values’, being the values associated with the illness.

In this context, it is important to reflect on the fact that an equivalent argument about ‘pathological values’ has been made in relation to anorexia. As Eliot and others worry about depression, Hope and Tan argued that the test of capacity might fail to detect the effect of anorexia on a person’s values. They reasoned that a person with anorexia might make what seem to be rational choices in pursuit of a personal goal of being very thin. However, Hope and Tan suggest that this value of thinness is itself a manifestation of the illness. In response, they suggested including the concept of ‘pathological values’ to the test of capacity. This would mean that a person with anorexia who makes decisions to avoid food could be found to lack capacity, provided those decisions were based on the ‘pathological values’ of pursuing thinness over all else. They could be found to lack capacity even if the person otherwise met the functional test of capacity.⁶²

Despite receiving some academic attention, this suggestion has not been formally adopted,⁶³ and we argue that there is good justification for avoiding it, for anorexia, depression or any mental illness. Such a construction effectively shifts the frame of analysis from the legal standard of capacity towards the medical standard of mental disorder.⁶⁴ Deciding whether a particular decision was based on a ‘pathological’ value or not is a decision, as Vollman puts it, ‘within psychiatry’.⁶⁵ That is, whether or not a value is ‘pathological’ is not a question of decision-making ability, it is a clinical question, and inextricably linked from the question of diagnosis, which, as we argue, needs to be kept separate from the question of capacity. Deciding capacity based on the concept of ‘pathological values’ would risk the type of automatic association between the illness and capacity that the functional test is designed to avoid.

Depression and impairment of capacity

Following our reasoning, there are no short-cuts available in the case of depression and VAD. The law requires any assessment of capacity, for VAD or any other decision, to focus on the individual and their current decision-making abilities.⁶⁶ These determinations must be case-by-case. Nevertheless, we believe that there is sufficient evidence to show that, despite concerns to the contrary, the effects of depression will be relevant to the properly applied test of capacity, and that it should not lead to people with depression inappropriately accessing VAD. Again, we believe that examples from the case of anorexia offer indications on why this is so.

Although the Court of Protection cases on anorexia mentioned above failed to consider evidence of functional capacity, evidence considered at the Ontario Consent and Capacity Board in relation to people with anorexia demonstrate that such evidence could have been available to the Court. For example, it is often the case that people with severe anorexia, while being intellectually able to understand that nutrition is needed for survival, are unable to believe that they themselves are of an unhealthy weight.⁶⁷ This inability to understand information that impacts on the treatment decision is relevant to a proper functional assessment of capacity and can legitimately support a finding of incapacity.⁶⁸

There is evidence to show that the same would be true in relation to depression. One of the most prominent features of depression that relates to decision-making is a deficit in the ability to understand and reason in relation to the future.⁶⁹ For example, using a series of clinical interviews, Owen et al. found that, while mildly or moderately depressed patients demonstrated an ordinary ability to make temporal decisions relating to treatment, this ability was largely absent in patients with severe depression.⁷⁰ Specifically, the severely depressed patients were unable to understand the impact serious present treatment choices may have on their future.⁷¹ A 2019 phenomenological study of patients with severe depression also showed problems in this regard.⁷² Although the patients could project themselves into the future, they perceived it as necessarily dark and negative and were, therefore, unable to recognise that treatment options may be open to shape a more positive future outcome.⁷³ These features cannot be simply described as affecting mood, or values. As Dembo et al. note, these comprise ‘cognitive distortions’ in relation to future possibilities.⁷⁴ Functional capacity requires a person to be able to understand information relevant to the decision that they are making. The possible effect of future medical treatment is relevant information. If someone is unable to understand this, as Owen et al. argue, this inability is relevant to a capacity assessment of that person.⁷⁵

Another known effect of depression is in relation to ‘theory of mind’, the ability to understand other individuals’ mental state.⁷⁶ This inability might be highly relevant in relation to the decision to access VAD. In particular, it might mean a person is unable to understand that family members would care about whether they died. Therefore, assessing this ability would form part of a legitimate functional assessment of capacity.

Moreover, despite the view that the depression manifests in emotions rather than cognition, research has demonstrated significant general cognitive deficits associated with depression.⁷⁷ Neuro-imaging studies have shown that depression is associated with observable changes in brain networks.⁷⁸ Studies of people with depression have demonstrated impairments in concentration and information processing⁷⁹ and reasoning.⁸⁰

Depression, like all mental illness diagnoses, varies in symptoms, presentation and severity.⁸¹ Accordingly, as the DSM-5 notes, within a population with the same diagnosis, some will retain capacity and some will not.⁸² A study using the MacCAT-T, the most commonly used capacity assessment tool, indicated that among those in psychiatric hospital with severe unipolar depression, 31% lacked capacity to make medical treatment decisions.⁸³ This is a significant figure, but it affirms the point that not everyone with depression will lack capacity. What is required is a case-by-case assessment of the particular decision-making abilities of the individual concerned.

If this is performed, evidence suggests that at least some people with depression will, on assessment, be found to have capacity to request VAD.⁸⁴ In Oregon, three people in a study were found eligible for assisted dying despite being diagnosed by researchers as having depression.⁸⁵ In the Netherlands, assisted dying is available for those suffering from a psychiatric illness alone, that is, without physical terminal illness. There, in 2022 there were 115 reported cases of people with psychiatric disorders having qualified.⁸⁶ Therefore, they were all assessed by attending psychiatrists as having capacity to make that request.⁸⁷

We acknowledge that the presence of a terminal physical illness will heighten the difficulty of assessing capacity. As noted above, depression is a common occurrence at the end of life. Also, as the DSM-5 acknowledges, some symptoms of depression, like fatigue, are also symptoms of terminal illnesses.⁸⁸ In these circumstances, drawing a distinction between pathological and non-pathological suffering and hopelessness is very challenging.⁸⁹ The treatment for the physical illness may also be a complicating factor. As Rosenstein points out, chemotherapy and other medication used in cancer treatment can have effects that ‘mimic depression’, leading to the chance of misdiagnosis.⁹⁰

Therefore, we acknowledge that doing a case-by-case functional assessment of capacity in the context of depression and a request for VAD may be difficult. Nevertheless, we argue that it is necessary.

An example of assessing a depressed patient’s capacity for VAD

Holmes et al. provide a case example of the type of decision-making involved in this area which shows both the difficulty of separating out the question of diagnosis from that of capacity, and also the importance of case-by-case analysis.⁹¹ They discuss a woman with interstitial pulmonary fibrosis, ‘Mrs A’, who requested VAD. She was assessed by a psychiatrist who found that her ‘mood was low and her range of affect was restricted’. The psychiatrist believed she had ‘moderate depression and VAD should not proceed until the depression was treated’. Treatment was given for three weeks, but no change in her mental state was observed by family. It was not stated whether the patient consented to this treatment. The psychiatrist reviewed her again, and again found that she still lacked capacity. Mrs A was then referred to another psychiatrist for a second opinion. That second psychiatrist found that Mrs A’s wish to die ‘could not be predominantly attributed to the presence of a depressive disorder’. The second psychiatrist did not detect ‘subjective depressed mood and decreased self-worth’, and therefore did not make the diagnosis of depression. The second psychiatrist believed that treatment for depression was unlikely to change her mental state in the foreseeable future.⁹² As a result, Mrs A was found to have capacity to request VAD.

In their discussion, Holmes et al. support the approach of the second psychiatrist. They argue that, when ‘depression itself is the predominant factor driving the wish to die’, a finding of incapacity is appropriate.⁹³ This might be indicated where the decision for VAD was ‘out of character or contrary to long expressed views and principles’.⁹⁴ They note that as well as low mood, self-hatred is a central element of depression, which manifests in ‘low self-worth, guilt, thoughts of being a burden and a belief that the world is better off without them’. However, these factors were absent in Mrs A’s case, therefore suggesting the depression was not a causal factor in the request, and capacity was present.

Our analysis has shown that from a legal perspective, there is danger in attempting to answer the question of capacity in a causal manner, lest the question of capacity merge with the question of diagnosis. In that, it is noteworthy that the first psychiatrist did diagnose depression, whereas the second did not. This raises the prospect that the question of diagnosis and the question of capacity had not been fully separated in the minds of either of the psychiatrists who assessed Mrs A.

However, the authors note that Mrs A produced a ‘detailed, rational and cohesive argument regarding her request’. We argue that when capacity is assessed, this information is highly relevant to the capacity assessment. ‘Rational’ and ‘cohesive’ arguments are indicative of a person who is able to understand information about a decision, and use that information to reach a decision. If a person can answer questions about their decision in a rational manner, one in which the noted problems in decision-making that can attend depression are not present, then this can support a finding of capacity.

Conclusion

We have made the argument that a case-by-case, functional assessment of capacity is necessary in all cases where a person with depression requests VAD. We agree with others who have argued that these assessments should be ‘systematic’,⁹⁵ as well as ‘cautious and rigorous’.⁹⁶ We have shown that there is a realistic danger that a form of circular reasoning may be used in this determination, which would effectively disbar a group of people from accessing a treatment option that is available to the rest of the population. We acknowledge that for several reasons, these assessments will be highly challenging for doctors involved. Nevertheless, we argue that an effective re-introduction of the ‘status’ test of capacity is something to be assiduously avoided. It must be at least possible for a person with depression to be able to access VAD, if they meet all the legislated criteria.

At the same time, the law must be alert to the counter concern: failing to detect the effect on capacity of depression, a mental illness associated with a desire to die. We have presented evidence to contradict the argument that a ‘functional’ test of capacity is unable to detect the effects of mental illnesses like depression. Nevertheless, given the high stakes involved, a very high level of care is warranted. We believe that research into the particular problems with decision-making that people with depression can experience will be profoundly helpful in this space.⁹⁷ Individual case studies are similarly useful and can assist doctors in their determinations.⁹⁸ As well as highlighting ways in which capacity may be impaired in the case of depression, these types of research highlight that depression is not a unitary phenomenon, and in at least some cases of depression, capacity will be retained.

We acknowledge that there are strong ethical arguments that can be made either way about the appropriateness of VAD in the case of depression. We believe that this heightened ethical interest makes it more important for the law to be understood and applied in a coherent and consistent manner. We hope that our analysis will assist in this regard.

This paper was partly funded by a grant from the Australian Centre for Health Law Research. The authors would like to thank Professor Lindy Willmott for her feedback on this paper, and Annabelle Milina for her assistance. The authors would also like to thank two anonymous reviewers, whose thoughtful comments improved the paper.

Ethical standards

Declaration of conflicts of interest

Sam Boyle has declared no conflicts of interest.

Andrew McGee has declared no conflicts of interest.

Felicity Wood has declared no conflicts of interest.

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors.

Notes

1 Assisted Dying Act 2017 (Vic); Voluntary Assisted Dying Act 2019 (WA); Voluntary Assisted Dying Act 2021 (SA); Voluntary End-of-Life Choices (Voluntary Assisted Dying) Act 2021 (Tas); Assisted Dying Act 2021 (Qld); Voluntary Assisted Dying Act 2022 (NSW).

2 Eg Assisted Dying Act 2017 (Vic) s 9(1)(d)(ii); Voluntary Assisted Dying Act 2022 (NSW) s 16(1)(d)(i).

3 Eg Assisted Dying Act 2017 (Vic) s 20(1)(c); Voluntary Assisted Dying Act 2022 (NSW) s 16(1)(g).

4 Eg Assisted Dying Act 2017 (Vic) s 9(1)(c); Voluntary Assisted Dying Act 2022 (NSW) s 16(1)(e).

5 In most states 12 months for a neurodegenerative condition, and otherwise 6 months: eg Voluntary Assisted Dying Act 2022 (NSW) s 16.

6 From 2024, Canada, Bill C-39, An Act to amend the Criminal Code (medical assistance in dying), 1st Sess, 45th Parl, 2023; Monica Verhofstadt and others, ‘Concrete Experiences and Support Needs Regarding the Euthanasia Practice in Adults with Psychiatric Conditions: A Qualitative Interview Study among Healthcare Professionals and Volunteers in Belgium’ (2022) 13 Frontiers in Psychiatry 859745; Regional Euthanasia Review Committees, ‘Euthanasia Code 2018: Review Procedures in Practice’ (2018) <https://english.euthanasiecommissie.nl/the-committees/code-of-practice> accessed 15 September 2023.

7 Legal and Social Issues Committee, Inquiry into End-of-Life Choices (Parliamentary Paper No 174, 2016) app 7.5.10; Joint Select Committee on End-of-Life Choices, My Life, My Choice (Report 1, 2018) 11.

8 Ryan Tanner, ‘An Ethical-Legal Analysis of Medical Assistance in Dying for Those with Mental Illness’ (2018) 56(1) Alberta Law Review 149, 154–55.

9 Elissa Kozlov and others, ‘Prevalence, Severity, and Correlates of Symptoms of Anxiety and Depression at the Very End of Life’ (2019) 58(1) Journal of Pain and Symptom Management 80. It is estimated that between 5% to 20% will meet various diagnostic criteria for major depressive disorder: Donald Rosenstein, ‘Depression and End-of-Life Care for Patients with Cancer’ (2011) 13(1) Dialogues in Clinical Neuroscience 101. See also Mari Lloyd-Williams and Trevor Friedman, ‘Depression in Palliative Care Patients – A Prospective Study’ (2001) 10(4) European Journal of Cancer Care 270; Tanner (n 8), citing Rosenstein (n 9).

10 Alex Buchanan, ‘Mental Capacity, Legal Competence and Consent to Treatment’ (2004) 97 Journal of the Royal Society of Medicine 415.

11 Re B (Adult Refusal of Medical Treatment) [2002] EWHC 429 (Fam); [2002] 2 All ER 449 450 (Butler-Sloss P).

12 Eg Re SB (a patient; capacity to consent to termination) [2013] EWCOP 1417.

13 Re B (Adult Refusal of Medical Treatment) (n 11) (Butler-Sloss P); XYZ v State Trustees Ltd (2006) 25 VAR 402, 422–24; Re SB (a patient; capacity to consent to termination) (n 12) [38]; Paul Appelbaum and Thomas Grisso, ‘Assessing Patients’ Capacities to Consent to Treatment’ (1988) 319(25) The New England Journal of Medicine 1635, 1637.

14 Neil Pickering, Giles Newton-Howes and Greg Young, ‘Harmful Choices, the Case of C and Decision-Making Competence’ 22(10) The American Journal of Bioethics 38.

15 Yanna Van Wesemael and others, ‘Process and Outcomes of Euthanasia Requests Under the Belgian Act on Euthanasia: A Nationwide Survey’ (2011) 42(5) Journal of Pain and Symptom Management 721, 731.

16 Mayo Clinic Staff, ‘Depression (Major Depressive Disorder)’ (Mayo Clinic, 14 October 2022) <https://www.mayoclinic.org/diseases-conditions/depression/symptoms-causes/syc-20356007> accessed 14 September 2023.

17 Others include Persistent Depressive Disorder (168–71) and Disruptive Mood Dysregulation Disorder (156–60).

18 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR) (5th edn, American Psychiatric Association 2022) 161.

19 ibid.

20 ibid.

21 ibid.

22 Marije van der Lee and others, ‘Euthanasia and Depression: A Prospective Cohort Study Among Terminally Ill Cancer Patients’ (2005) 23(27) Journal of Clinical Oncology 6607, 6608–6609. This study used ‘depressed mood’ as measured by the Hospital Anxiety and Depression Scale. Linda Ganzini, Elizabeth Goy and Steven Dobscha, ‘Prevalence of Depression and Anxiety in Patients Requesting Physicians’ Aid in Dying: Cross Sectional Survey’ (2008) 337(a1682) The BMJ <https://www.bmj.com/content/337/bmj.a1682> accessed 13 September 2023 citing Harvey Chochinov and others, ‘Desire for Death in the Terminally Ill’ (1995) 152(8) American Journal of Psychiatry 1185; Ezekiel Emanuel, Diane Fairclough and Linda Emanuel, ‘Attitudes and Desires Related to Euthanasia and Physician-Assisted Suicide Among Terminally Ill Patients and their Caregivers’ (2000) 284(19) JAMA 2460;William Breitbart and others, ‘Depression, Hopelessness, and Desire for Hastened Death in Terminally Ill Patients with Cancer’ (2000) 284(22) JAMA 2907.

23 Stuart Hooper and others, ‘Preferences for Voluntary Euthanasia During Major Depression and Following Improvement in an Elderly Population’ (1997) 16(1) Australian Journal on Ageing 3.

24 Linda Ganzini and others, ‘The Effect of Depression Treatment on Elderly Patients’ Preferences for Life-Sustaining Medical Therapy’ (1994) 151(11) American Journal of Psychiatry 1631.

25 Franklin Miller and Paul Appelbaum, ‘Physician-Assisted Death for Psychiatric Patients – Misguided Public Policy’ (2018) 378(10) The New England Journal of Medicine 883, 884.

26 ‘Madrid Declaration on Ethical Standards for Psychiatric Practice’ (World Psychiatric Association, 21 September 2011) <https://www.wpanet.org/current-madrid-declaration> accessed 13 September 2023.

27 Eg Assisted Dying Act 2017 (Vic) s 4(1).

28 Sam Boyle, ‘Is the Wisdom of a Person’s Decision Relevant to their Capacity to Make that Decision?’ (2020) 46(1) Monash University Law Review 39.

29 R v Cooper [2009] UKHL 42; [2009] 1 WLR 1786, 1789; Law Commission, Mental Incapacity (Law Com No 231, 1995).

30 Laws in Australian jurisdictions use a definition of capacity equivalent to the existing legislative definition within that jurisdiction. Eg Assisted Dying Act 2017 (Vic) s 4(1); Voluntary Assisted Dying Act (Qld) s 11; Voluntary Assisted Dying Act 2022 (NSW) s 6(1) (NSW).

31 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, 93.

32 Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649 (CA), 112 (Lord Donaldson, Butler-Sloss LJ agreeing at 116); Re MB (An Adult: Medical Treatment) [1997] 2 FLR 426 (CA) 436 (Butler-Sloss LJ).

33 This is made explicit in all current Australian VAD legislation: Assisted Dying Act 2017 (Vic) s 4(2); Voluntary Assisted Dying Act 2019 (WA) s 6(2); Voluntary Assisted Dying Act 2021 (SA) s 4(2); End-of-Life Choices (Voluntary Assisted Dying) Act 2021 (Tas) s 12(2)(a); Voluntary Assisted Dying Act 2021 (Qld) s 11(2); Voluntary Assisted Dying Act 2022 (NSW) s 6(2)(b).

34 Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819 (EWHC Fam).

35 Starson v Swayze, 2003 SCC 32.

36 Re SB (n 12).

37 Abraham Rudnick, ‘Depression and Competence to Refuse Psychiatric Treatment’ (2002) 28(3) Journal of Medical Ethics 151.

38 Alex Holmes and others, ‘Can Depressed Patients Make a Decision to Request Voluntary Assisted Dying?’ (2021) 51(10) Internal Medicine Journal 1713, 1716. The authors do not state whether they are referring only of cases to VAD, nor whether this recommendation would be followed through even if the patient rejected it. See also Robin Digby and others, ‘Introducing Voluntary Assisted Dying: Staff Perspectives in an Acute Hospital’ (2022) 11(6) International Journal of Health Policy and Management 777.

39 Rudnick, who argues for a trial of treatment for depression before acceding to treatment refusal, concedes, ‘a special legal procedure’ would be required for this to occur: Rudnick (n 37) 151, 153.

40 Eg Mental Health Act 2007 (NSW) s 14(1).

41 Holmes et al. (n 38) also argue that ‘a decision about VAD should not be made conditional on a trial of treatment’, but on the basis that given the timeframes of treatment for depression and expected death for those otherwise eligible for VAD, it would effectively deny access to VAD: 1716.

42 Rudnick suggests this in relation to treatment refusal: Rudnick (n 37) 151. Peña makes the same suggestion in relation to depression and capacity to refuse life-sustaining medical treatment: Adam Peña, ‘Depression, Capacity, and a Request to Discontinue Life-Sustaining Treatment’ (2015) 15(7) American Journal of Bioethics 70.

43 Re E (Medical Treatment: Anorexia) [2012] EWCOP 1639, [2012] All ER (D) 96 (Jun); The NHS Trust v L and Others [2012] EWCOP 2741; A NHS Foundation Trust v X (by her litigation friend, the Official Solicitor [2014] EWCOP 35, [2014] All ER (D) 89 (Oct); Re W (Medical Treatment: Anorexia) [2016] EWCOP 13, [2016] All ER (D) 18 (Apr); Cheshire & Wirral Partnership NHS Foundation Trust v Z [2016] EWCOP 56, [2017] COPLR 165.

44 Sam Boyle, ‘How Should the Law Determine Capacity to Refuse Treatment for Anorexia?’ [2019] 64 International Journal of Law and Psychiatry 250, 254.

45 Re E (n 43) [52].

46 Indeed, information presented in the cases about the understanding of the individuals involved – which ought to be relevant to a capacity determination – is inappropriately ignored: Boyle (n 42) 254.

47 See eg The Law Commission (n 29) 33.

48 Mary Donnelly, Healthcare Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism (1st edn, Cambridge University Press 2010) 108.

49 American Psychiatric Association (n 18) xxxiii.

50 Mark Sullivan and Stuart Youngner, ‘Depression, Competence, and the Right to Refuse Lifesaving Medical Treatment’ (1994) 151(7) American Journal of Psychiatry 971; Samuel Brown, Gregory Elliott and Robert Paine, ‘Withdrawal of Nonfutile Life Support after Attempted Suicide’ (2013) 13(3) American Journal of Bioethics 3; Tanner (n 8), citing Michael Gliatto and Anil Rai, ‘Evaluation and Treatment of Patients with Suicidal Ideation’ (1999) 59(6) American Family Physician 1500.

51 Re E (n 43) [51].

52 Linda Ganzini and others, ‘Evaluation of Competence to Consent to Assisted Suicide: Views of Forensic Psychiatrists’ (2000) 157(4) American Journal of Psychiatry 595. See also External Panel on Options for a Legislative Response to Carter v. Canada, ‘Consultations on Physician-Assisted Dying: Summary of Results and Key Findings – Final Report’ (Government of Canada 2015) 41.

53 Miller and Appelbaum (n 25) 883, 884.

54 Rosalyn Griffiths and Janice Russell, ‘Compulsory Treatment of Anorexia Nervosa Patients’ in Walter Vandereycken and Pierre Beumont (eds), Treating Eating Disorders: Ethical, Legal and Personal Issues (The NYU Press 1998) 132–33.

55 Jochen Vollmann,‘“But I Don’t Feel It”: Values and Emotions in the Assessment of Competence in Patients with Anorexia Nervosa’ (2006) 13(4) Philosophy, Psychiatry and Psychology 289.

56 Torsten Breden and Jochen Vollmann, ‘The Cognitive Based Approach of Capacity Assessment in Psychiatry: A Philosophical Critique of the MacCAT-T’ (2004) 12(4) Health Care Analysis 273, 265; Gareth Owen and others, ‘Capacity and Decisional Autonomy: An Interdisciplinary Challenge’ (2009) 52(1) Inquiry 79; Louis Charland, Trudo Lemmens and Kyoko Wada, ‘Decision-Making Capacity to Consent to Medical Assistance in Dying for Persons with Mental Disorders’ [2016] Journal of Ethics in Mental Health <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2784291> accessed 15 September 2023.

57 This position was put by witnesses in Canada v Carter 2015 SCC 5 [785]–[794]; Charles Culver and Bernard Gert, ‘The Inadequacy of Incompetence’ (1990) 68(4) The Milbank Quarterly 619; Rudnick (n 37) 151, 152; Laura Dunn and others, ‘Ethical Issues in Deep Brain Stimulation Research for Treatment-Resistant Depression: Focus on Risk and Consent’ (2011) 2(1) AJOB Neuroscience 29.

58 Carl Elliott, ‘Caring About Risks: Are Severely Depressed Patients Competent to Consent to Research?’ (1997) 54(2) Archives of General Psychiatry 113, 115 (emphasis in original).

59 ibid 113.

60 Rudnick (n 37) cited in Charland, Lemmens and Wada (n 56).

61 Bonnie Steinbock, ‘Physician-Assisted Death and Severe, Treatment-Resistant Depression’ (2017) 47(5) The Hastings Center Report 30. He also argued that people with depression will be unable to imagine that there could be any pleasures in life that ‘make it worth enduring the discomforts and indignities of medical treatment’.

62 Jacinta Tan and others, ‘Competence to Make Treatment Decisions in Anorexia Nervosa: Thinking Processes and Values’ (2006) 13(4) Philosophy, Psychiatry and Psychology 267. See also Charland, Lemmens and Wada (n 56).

63 In response to Hope and Tan’s argument, Grisso and Appelbaum raised concern about potentially changing the definition of capacity to deal with a particular illness, a point that Hope and Tan conceded: Thomas Grisso and Paul Appelbaum, ‘Appreciating Anorexia: Decisional Capacity and the Role of Values’ (2006) 13(4) Philosophy, Psychiatry and Psychology 293; Jacinta Tan and others, ‘Studying Penguins to Understand Birds’ (2006) 13(4) Philosophy, Psychiatry and Psychology 299.

64 Vollmann (n 55) 291.

65 ibid.

66 Justine Dembo, Udo Schuklenk and Jonathan Reggler, ‘“For Their Own Good”: A Response to Popular Arguments Against Permitting Medical Assistance in Dying (MAID) where Mental Illness is the Sole Underlying Condition’ (2018) 63(7) Canadian Journal of Psychiatry 451, 453.

67 In the Matter of R.B., a Patient at the Hospital for Sick Children [43]. Unreported decision described in L. C. v. Pinhas, 2002 CanLII 2843 (ONSC.).

68 Boyle (n 44).

69 Harold Bursztajn and others, ‘Beyond Cognition: The Role of Disordered Affective States in Impairing Competence to Consent to Treatment’ (1991) 19(4) Bulletin of the American Academy of Psychiatry and the Law Online 383, 385.

70 Gareth Owen and others, ‘Temporal Inabilities and Decision-Making Capacity in Depression’ (2013) 14 Phenomenology and the Cognitive Sciences Journal 163, 170.

71 ibid 173.

72 Gareth Owen, Wayne Martin and Tania Gergel, ‘Misevaluating the Future: Affective Disorder and Decision-Making Capacity for Treatment – A Temporal Understanding’ (2019) 51(6) Psychopathology 371, 373.

73 ibid 376.

74 Justine Dembo, Sisco van Veen and Guy Widdershoven, ‘The Influence of Cognitive Distortions on Decision-Making Capacity for Physician Aid in Dying’ (2020) 72(101627) International Journal of Law and Psychiatry <https://www.sciencedirect.com/science/article/pii/S0160252720300868?via%3Dihub> accessed 15 September 2023, 3. See also Frédéric Pochard and others, ‘Symptoms of Anxiety and Depression in Family Members of Intensive Care Unit Patients: Ethical Hypothesis Regarding Decision-Making Capacity’ (2001) 29(10) Critical Care Medical Journal 1893, 1894; Gerben Meynen, ‘Depression, Possibilities, and Competence: A Phenomenological Perspective’ (2011) 32(3) Theoretical Medicine and Bioethics 181; Carl Erik Fisher and others, ‘The Ethics of Research on Deep Brain Stimulation for Depression: Decisional Capacity and Therapeutic Misconception’ (2012) 1265(1) Annals of the New York Academy of Sciences 69.

75 Owen, Martin and Gergel (n 72).

76 Emre Bora and Michael Berk, ‘Theory of Mind in Major Depressive Disorder: A Meta-Analysis’ (2016) 191 Journal of Affective Disorders 49.

77 Emre Bora and others, ‘Cognitive Impairment in Euthymic Major Depressive Disorder: A Meta-Analysis’ (2013) 43(10) Psychological Medicine 2017; Matthew Knight and Bernhard Baune, ‘Cognitive Dysfunction in Major Depressive Disorder’ (2018) 31(1) Current Opinion in Psychiatry 26.

78 Paul Hamilton and others, ‘Functional Neuroimaging of Major Depressive Disorder: A Meta-Analysis and New Integration of Base Line Activation and Neural Response Data’ (2012) 169(7) American Journal of Psychiatry 693.

79 Shirley Hartlarge and others, ‘Automatic and Effortful Processing in Depression’ (1993) 113(2) Psychological Bulletin 247.

80 Jane Baker and Shelley Channon, ‘Reasoning in Depression: Impairment on a Concept Discrimination Learning Task’ (1995) 9(6) Cognition and Emotion 579.

81 Miriam Forbes and others, ‘Elemental Psychopathology: Distilling Constituent Symptoms and Patterns of Repetition in the Diagnostic Criteria of the DSM-5’ [2023] Psychological Medicine <https://www.cambridge.org/core/journals/psychological-medicine/article/elemental-psychopathology-distilling-constituent-symptoms-and-patterns-of-repetition-in-the-diagnostic-criteria-of-the-dsm5/8CBF931E0650472387155DD945C73BC5> accessed 15 September 2023.

82 See also Paul Appelbaum and others, ‘Competence of Depressed Patients for Consent to Research’ (1999) 156(9) The American Journal Psychiatry 1380.

83 Gareth Owen and others, ‘Mental Capacity to Make Decisions on Treatment in People Admitted to Psychiatric Hospitals: Cross Sectional Study’ (2008) 337(a448) BMJ <bmj.com/content/337/bmj.39580.546597.BE.long > accessed 15 September 2023. See also Maria Lapid and others, ‘Decision-Making Capacity of Severely Depressed Patients Requiring Electroconvulsive Therapy’ (2003) 19(2) The Journal of ECT 67; Thomas Hindmarch, Matthew Hotopf and Gareth Owen, ‘Depression and Decision-Making Capacity for Treatment or Research: A Systematic Review’ (2013) 14(54) BMC Medical Ethics <https://bmcmedethics.biomedcentral.com/articles/10.1186/1472-6939-14-54> accessed 15 September 2023; Elissa Kolva and others, ‘Assessing Decision-Making Capacity at End of Life’ (2014) 36(4) General Hospital Psychiatry 392; Udo Schuklenk and Suzanne Van De Vathorst, ‘Treatment-Resistant Major Depressive Disorder and Assisted Dying’ (2015) 41(8) Journal of Medical Ethics 577, 580.

84 Ilana Levene and Michael Parker, ‘Prevalence of Depression in Granted and Refused Requests for Euthanasia and Assisted Suicide: A Systematic Review’ (2011) 37(4) Journal of Medical Ethics 205.

85 Ganzini, Goy and Dobscha (n 22).

86 Regional Euthanasia Review Committees, ‘Annual Report 2022’ (27 March 2023) <https://english.euthanasiecommissie.nl/the-committees/documents/publications/annual-reports/2002/annual-reports/annual-reports> accessed 15 September 2023.

87 Ron Berghmans, Guy Widdershoven and Ineke Widdershoven-Heerding, ‘Physician-Assisted Suicide in Psychiatry and Loss of Hope’ (2013) 36(5–6) International Journal of Law and Psychiatry 436.

88 American Psychiatric Association (n 18).

89 Aaron Beck, ‘Relationship Between Hopelessness and Ultimate Suicide: A Replication with Psychiatric Outpatients’ (1990) 147(2) American Journal of Psychiatry 133; Mary Massie, ‘Prevalence of Depression in Patients with Cancer’ (2004) 2004(32) JNCI Monographs 57, 57; Schuklenk and Van De Vathorst (n 83); Dembo, van Veen and Widdershoven (n 74) 4.

90 Rosenstein (n 9).

91 Holmes and others (n 38).

92 ibid 1714–15.

93 ibid 1715.

94 ibid 1715.

95 Sullivan and Youngner (n 50) 974.

96 Cameron Stewart, Carmelle Peisah and Brian Draper, ‘A Test for Mental Capacity to Request Assisted Suicide’ (2011) 37(1) Journal of Medical Ethics 34; Carmelle Peisah, Linda Sheahan and Ben P. White, ‘Biggest Decision of Them All – Death and Assisted Dying: Capacity Assessments and Undue Influence Screening’ (2019) 49(6) Internal Medicine Journal 792.

97 Owen, Martin and Gergel (n 72).

98 Holmes and others (n 38).