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Assessment of decision-making capacity in patients requesting assisted suicide

  • David Shaw (a1), Manuel Trachsel (a2) and Bernice Elger (a3)

In this editorial, we argue that current attitudes toward terminally ill patients are generally too paternalistic, and that it is wrong to assume that patients suffering from mental health issues (including depression) cannot consent to assisted suicide.

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Correspondence: David Shaw PhD, MA, MSc, MML, PGCE, Institute for Biomedical Ethics, University of Basel, Bernoullistrasse 28, 4056 Basel, Switzerland. Email:
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1Grisso, T, Appelbaum, PS. Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals. Oxford University Press, 1998.
2Buchanan, AE, Brock, DW. Deciding for Others: The Ethics of Surrogate Decision Making. Cambridge University Press, 1989.
3Parker, M. Judging capacity: paternalism and the risk-related standard. J Law Med 2004; 11: 482–91.
4Werth, J, Benjamin, G, Farrenkopf, T. Requests for physician assisted death: guidelines for assessing mental capacity and impaired judgment. Psychol Public Policy Law 2000; 6: 348–72.
5Ganzini, L, Leong, GB, Fenn, DS, Silva, JA, Weinstock, R. Evaluation of competence to consent to assisted suicide: views of forensic psychiatrists. Am J Psychiatry 2000; 157(4): 595600.
6Okai, OG, Owen, G, McGuire, H, Singh, S, Churchill, R, Hotopf, M. Mental capacity in psychiatric patients: systematic review. Br J Psychiatry 2007; 191: 291–7.
7Hindmarch, T, Hotopf, M, Owen, GS. Depression and decision-making capacity for treatment or research: a systematic review author. BMC Med Ethics 2013; 14: 54.
8Schuklenk, U, Van de Vathorst, S. Treatment-resistant major depressive disorder and assisted dying: response to comments. J Med Ethics 2015; 41: 589–91.
9Swiss Academy of Medical Sciences. Section 4.1: Assisted Suicide. In End-of-life care: 9. Swiss Academy of Medical Sciences, 2013.
10Trachsel, M, Hermann, H, Biller-Andorno, N. Cognitive fluctuations as a challenge for the assessment of decision-making capacity in patients with dementia. Am J Alzheimers Dis Other Demen 2014; 30(4): 360–3.
11Local Authority v Z [2004] EWHC 2817.
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Assessment of decision-making capacity in patients requesting assisted suicide

  • David Shaw (a1), Manuel Trachsel (a2) and Bernice Elger (a3)
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My Response to "Assessment of decision-making capacity in patients requesting assisted suicide".

Lachlan Campbell, Consultant Psychiatrist, Blackfriars Medico-Legal Consultancy
15 August 2018

Although I congratulate the authors for addressing a controversial and neglected subject, I fear that in their efforts to soften their views they also "muddy the waters". Specifically, they refer to the enhanced evaluation and a higher standard of competence for those patients seeking assisted suicide who are not terminally ill. However capacity as assessed through the tests laid down in the Mental Capacity Act 2005 is issue-specific, time-specific and obviously also patient-specific. There is no concept of differential competence proportional to the gravity of the outcome. To evoke such a doctrine would, in my view, render the entire exercise worthless.

For psychiatrists, our role is to advise as to whether or not a patient requesting assisted suicide is exhibiting any recognised mental disorder. If not, our role ceases immediately. If a disorder is identified, we should then apply the tests laid down in the Mental Capacity Act 2005 regardless of diagnosis. To do otherwise would offend the principles of Autonomy and Justice, if not also Non-Maleficence.

My second concern relates to people who lack the capacity for consent, whether for congenital or acquired reasons. Do they not have the same rights and entitlements as everyone else? If so, can we justify denying them access to medically-assisted suicide just because they might have reached a different decision if mentally competent? To my mind, this sounds like filing the problem in the "too difficult" basket. I think the appropriate way forward in these circumstances is to proceed to an assessment of their best interests, as is necessarily the case for any other medically-intrusive procedure. This would at least then potentially expose the procedure and its outcome to judicial scrutiny.

Finally, I remain concerned about the term "assisted suicide" as applied to medical practice. In my view, doctors never "save" anyone but simply delay, or sometimes hasten, the inevitability of death. Assisted suicide therefore might be better thought of as a form of "brought forward time". This also allows for the possibility of different entry routes. So, for example, a request for "medically-assisted brought forward time" could be included within a Living Will, a Lasting Power of Attorney or even as an Advanced Purchase, the latter perhaps being included as part of a pre-paid funereal plan.

Overall, I think that "medically-assisted suicide" or preferably "medically-assisted brought forward time" is actually a perfectly straightforward matter which readily sits within existing mental health law. Why complicate matters?
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Conflict of interest: Religious affiliation: New Age.

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Physician beneficence: the last stop for patients requesting assisted suicide

Paul Kioko, Doctoral Fellow, Pontificia Università della Santa Croce
Pablo Requena Meana, Professor of Moral Theology and Bioethics, Pontificia Università della Santa Croce
15 August 2018

In their editorial, Shaw et al. argue that current medical practice is overly paternalistic towards mentally competent terminally ill patients (including those with psychiatric illness) who request for assisted suicide. They base their general argument on the four principles of bioethics with a special emphasis on patient autonomy and end by asserting that, “any doctor who attempts to prevent a patient who is mentally competent from accessing assisted suicide is adopting an over-paternalistic stance.”[1]

The authors’ implicit argument against dissuading a patient from assisted suicide appears to rest on the premise that death is a lesser evil (or a lesser suffering) compared to being alive and suffering. We would hold that this premise merits a closer examination. Life has always been regarded as the basic right and fundamental good for any human person. Aristotle’s distillation of popular wisdom is unequivocal: “death is the most terrible of all things; for it is the end, and nothing is thought to be any longer either good or bad for the dead.”[2] The person who has lost the desire to live represents the ultimate instance of suffering – existential suffering; and in seeking medical attention, the existential sufferer accepts de facto that the physician is the last instance of help. Ultimately a request for suicide is a request for help to relieve existential suffering. It is not a request to annihilate existence.

We would argue that any doctor who unconditionally accedes to assisting his or her patient to commit suicide is abdicating his or her role as a beneficent protector of the sick and suffering and is instead championing absolute patient autonomy. The Hippocratic dawn of medical practice with its paternalistic physician-patient relationship is thankfully behind us but the beneficent physician is still the necessary companion for the autonomous patient. Indeed, a total abdication of physician beneficence in favour of patient autonomy is neither called for nor is it in the best interests of patients.[3] As Brett and McCullough put it, “if the aim of medicine should be seen as a form of beneficence, then doing harm in the service of autonomy is illogical.”[4]

The authors rightly conclude that “to impose [one’s] values on one’s patients is deeply unethical and unprofessional.” Certainly patients must always be free to decide about their own life; but again there is something deeply unethical and unprofessional for a doctor who is traditionally committed to saving life to be instrumental in taking away that very life. The ideal physician-patient relationship should be characterised by the equally important contribution of physician beneficence and patient autonomy operating in a shared environment of justice and non-maleficence. In this regard, an open and sincere Shared Decision Making process is probably the best context within which a constructive discussion of the meaningful alternatives to suicide for the management of existential suffering can take place.[5] Such alternatives include, but are not necessarily limited to: meaning-centred therapy, hope-centred therapy, dignity therapy, and supportive-expressive therapy.

[1] Shaw D, Trachsel M, Elger B. Assessment of decision-making capacity in patients requesting assisted suicide, Br J Psychiatry 2018; 213: 393–395.

[2] Aristotle. Nicomachean Ethics, Book III, 1115 a 26-27. In: Barnes J. (ed.) Complete Works of Aristotle: The Revised Oxford Translation, Volume 2, Princeton University Press, Princeton NJ 2014.

[3] Savulescu J. Rational non-interventional paternalism: why doctors ought to make judgments of what is best for their patients. J Med Ethics 1995; 21: 327-331.

[4] Brett AS, McCullough LB. When patients request specific interventions: Defining the limits of the physician's obligation. N Engl J Med 1986; 315: 1347-1351.

[5] Barry MJ, Edgman-Levitan S. Shared decision making – the pinnacle of patient-centered care. N Engl J Med 2012; 366: 780-781.
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Conflict of interest: None declared

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An odd choice for an Editorial!

andrew firestone, consultant psychiatrist, private practice
15 August 2018

The Editor

Brit J Psychiatry

RE: Editorial by D Shaw et al “Assessment of decision-making capacity in patients requesting assisted suicide”.

Dear Prof. Bhui

It is puzzling that this article (1) received the mantle of an Editorial! The authors express opposition to psychiatric interview and psychological questionnaire in the assessment of persons seeking assisted suicide. In my opinion the article should have been published for debate, with a contrary view presented.

The authors, ethicists in Switzerland, argue that for medical specialists to cause delay to assisted suicide is unethical, if a person with sound “decision-making capacity” clearly and repeatedly and without any ambivalence expresses a wish for assisted suicide over a period of time.

One has to wonder why the authors oppose psychiatric assessments and psychological questionnaires. Psychiatrists are generally regarded among the most skilled of medical interviewers. In the opinion of many, untreated depression should be carefully excluded by psychiatric assessment before assisted suicide is supported. Sadly there are countries where this is not the case.

The article acknowledges that relatives may coerce for financial gain. The person may wish to please relatives, be afraid to speak against them, etc. – and still demonstrate sound decision-making capacity. But the article does not deal with how this thorny problem is to be tackled. In fact, examination beyond decision-making capacity is required: the person’s motivation must be clearly established.

Psychological questionnaires have long been designed to clarify a respondent’s unspoken beliefs and wishes. It is not hard to imagine a case of elder abuse in which a person fears to directly express their situation - and through an indirect questionnaire, followed by skilled interviewing, a wrongful death might be prevented.

Andrew Firestone, Melbourne.


1)Assessment of decision-making capacity in patients requesting assisted suicide, D Shaw,M Trachsel, B Elger, BJP 213,393-395 (July 2018).

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Conflict of interest: None declared

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Capacity is only one aspect of decision making at life's end.

Eugene Breen, Consultant Psychiatrist, Associate Clinical Professor, Mater Hospital Dublin, University College Dublin
15 August 2018

Capacity is one part of decision making

The editorial by Shaw in the July edition discussing decision making capacity to request assisted suicide, follows on from a previous report from Belgium also published in the journal entitled “When unbearable suffering incites psychiatric patients to request euthanasia; qualitative study.”1,2 There seem to have been no balancing editorials or reports on the merits of effective palliative care in terminally ill or in those suffering unbearably. This must be the hand of the editor because it definitely isn’t the hand of God! Assisted suicide and euthanasia are legal in a minority of jurisdictions. They are illegal in UK. Everyone knows there is a concerted drive by some to foist death by design on those that won’t die when they become a nuisance.

The issue of capacity as a stand-alone faculty of itself is a faulty basis for determining a person’s true desires. We all know too well that we often don’t do the things we should (even though we have capacity) and end up doing the things we don’t want to do – such is our state. This is not a lack of capacity but of ability to follow through on what we wish, and it over-rides our decision making capacity. The human will can cloud our cognition/capacity into doing what it wants. Lying, denial, self-delusion, self-justification are among the many ploys the will uses to suppress capacity, and with it the good the beautiful and the true are suppressed. Conscience is also active in decision making. Issues of end of life care are laden with conscience issues. “Should I? Shouldn’t I? What do people want me to do? I’m a burden on my family.” People at the last stages of life or who are grievously suffering, are at their most vulnerable and are easily swayed one way or another, and may not have the ability to harness their will power, clarity of thought (capacity) and conscientious understanding of what is at stake. What they are being offered is death by design (assisted suicide/euthanasia) not a new lease of life or some other positive intervention, like effective palliation and hope and support. Everyone spends their lives living, and their behaviour/body-language and drive is to live and make the most of life. Now in the closing moments should they not be helped to persevere in their lifelong goal, rather than be defrauded in a definitive decision by a faulty concept of decisional ability? Informed consent and freedom from duress or subliminal or liminal influence along with cognition, emotions, conscience and the enormous impact of a life lived over decades all come into play in crucial decision making at life’s closing moment (days, weeks, months). Capacity is only one of these many faculties (and not the most important involved in late life decision making.

1. Shaw D, Trachsel M, Elger B. Assessment of decision making capacity in patients requesting assisted suicide. Br J Psychiatry 2018; 213,393-395.doi: 10.1192/bjp.2018.81.

2. Verhofstadt M, Thienpont L, Peters G-JY. When unbearable suffering incites psychiatric patients to request euthanasia: qualitative study. Br J Psychiatry2017; 211: 238-45.

I am the sole author and declare I have no conflict of interest. I assign full copyright to the journal.

Eugene G Breen

Consultant Psychiatrist, Mater Misericordiae University Hospital

Associate Clinical Professor University College Dublin

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Conflict of interest: None declared

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The advocates of euthanasia in patients suffering from mental illness are going in the wrong direction

Emilie OLIE, MD,PhD, CHU Montpellier
Philippe COURTET, MD,PhD, CHU Montpellier
19 July 2018

Shaw et al. (1) argue that “it is wrong to assume that patients suffering from mental health issue cannot consent to assisted suicide”. But being depressed is the strongest correlate of decision instability, of changing from acceptance of euthanasia to rejecting it at follow up (2). As a matter of fact, the rate of psychiatric patients who, after seeking EAS, no longer wished to die and / or withdrew their requests is quite high(3). In general, caregivers should be aware of the risks of euthanasia or assisted suicide (EAS) for patients suffering from mental health issue. Beyond the paradox of use of EAS criteria corresponding to clinically targets of therapeutic intervention, available data on psychiatric EAS from BENELUX (Belgium, Netherlands and Luxembourg) highlight real issues of such practice. Even EAS defenders criticize the procedure(4), agreeing that : i) a rigorous standardized evaluation involving a biopsychosocial perspective is lacking ; ii) all available treatments are not always tried and access to care not systematically assured. Decision-making capacity evaluation in patients requesting assisted suicide is even more complex in presence of psychiatric disorder. Medicine's ongoing assumption that clinicians and patients are rational decision makers is questionable. All humans (including patients and clinicians) are influenced by seemingly irrational preferences in making choices about risk, time, and trade-offs. By extension, the existence of rational suicide is uncertain. Decisions are considered to be rational when they rely on two core dimensions : being realistic and having minimal ambivalence(5). But how can we rationally consider the options "to be or not to be"? Suicide is known to be an ambivalent choice. In addition, considering that "I would be better off dead" is not sensible because there is no knowledge of "being" after death. The term “understandability” could thus be rather used than “rationality” for suicide. However the ability to understand someone’s wish to die does not mean that suicide is for the best.

Moreover, the irremediable dimension of suffering justifying EAS is unclear because suffering may be improved for some patients when they are heard and taken seriously in their death request. Altogether, it suggests that EAS defenders may be misled by personal beliefs, feelings and values. Are EAS advocates reignited caregivers having forgotten Hippocratic oath “primum non nocere” ? It is important to note that mental illnesses are now recognized to be chronic and disabling, belonging to a group of serious medical illnesses such as cancer, but do not benefit from the same research approach. While the goals of biomedical research for severe somatic illnesses are generally cure and prevention, very little research for the mental illnesses has set the bar this high. Thus to propose an irremediable and definitive solution (death) to a complex and poorly understood phenomenon (suffering) is going in the wrong direction.

1. Shaw D, Trachsel M, Elger B. Assessment of decision-making capacity in patients requesting assisted suicide. Br J Psychiatry. 2018; 213(1): 393-5.

2. Blank K, Robison J, Prigerson H, Schwartz HI. Instability of attitudes about euthanasia and physician assisted suicide in depressed older hospitalized patients. Gen Hosp Psychiatry. 2001; 23(6): 326-32.

3. Thienpont L, Verhofstadt M, Van Loon T, Distelmans W, Audenaert K, De Deyn PP. Euthanasia requests, procedures and outcomes for 100 Belgian patients suffering from psychiatric disorders: a retrospective, descriptive study. BMJ open. 2015; 5(7): e007454.

4. Vandenberghe J. Physician-Assisted Suicide and Psychiatric Illness. N Engl J Med. 2018; 378(10): 885-7.

5. Clarke DM. Autonomy, rationality and the wish to die. Journal of medical ethics. 1999; 25(6): 457-62.

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Conflict of interest: None declared

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