The cases emerging from Nova Scotia, including Sorenson v. Swinemar, 2020 NSCA 62, Y. v. Swinemar, 2020 NSCA 56, and Y. v. Swinemar, 2020 NSSC 225, illustrate important medical-legal issues in relation to medical assistance in dying (MAiD). In the case of Sorenson v. Swinemar, Mrs. Sorenson sought an interlocutory injunction prohibiting her husband from receiving MAiD. She argued that in addition to not meeting eligibility criteria, he did not have capacity to consent. His request for MAiD related mostly to his chronic obstructive pulmonary disease (COPD). His capacity evaluation at first was a clinical conundrum as the two nurse practitioners who assessed him did not agree on his capacity to consent. He was assessed by a geriatric psychiatrist who opined that he did have capacity. Assessments by additional medical specialists all agreed he was capable, such that four of five assessments concluded he had capacity to consent. A key conclusion from the Nova Scotia Court of Appeal is that there is no role for courts in the review of MAiD eligibility and capacity assessments.

MAiD for people with a mental disorder as a sole underlying medical condition (MD-SUMC) was set to become legal in Canada on March 17, 2023, but on December 15, 2022 the federal government announced its plans to temporarily delay MAiD eligibility for persons with a MD-SUMC.[i] This is to provide the government with more time to disseminate information and resources to health care providers, and to review a report by the Special Joint Committee on MAiD that is due out in February 2023.

There appears to be a lack of consensus in the mental health field whether persons with a MD-SUMC can be adequately evaluated for capacity to consent to MAiD. There are advocates both in favour [ii]^, [iii]^,[iv] and those who argue that the evaluation of capacity in persons with a MD-SUMC remains too complex.[v]^{, [vi], [vii], [viii], [ix], [x], [xi], [xii]} One of the opponents is the co-author of the gold standard instrument for evaluating capacity to consent – the MacArthur Competence Assessment Tool-Treatment (MacCAT-T)[xiii] – who suggested many years ago that standards and thresholds for evaluating capacity to consent to MAiD in those with mental illness could not be scientifically determined.[xiv]

All four components of capacity that are assessed by the MacCAT-T (ability to understand, ability to appreciate, reasoning, and expression of choice) are operationalized in terms of primarily cognitive capacities. The domination of cognitive criteria in formal assessment tools and the fact that emotional, biographical and context specific factors are ignored has been criticized.[xv]^,[xvi]^,[xvii] Current approaches that define capacity in cognitive terms may ignore emotional instability that can disrupt capacity, particularly due to cognitive distortion.

Cognitive distortion is defined by the American Psychological Association[xviii] as “faulty or inaccurate thinking, perception or belief.” Cognitive distortion is a normal psychological process that can occur in all people to a greater or lesser extent. There are numerous types of cognitive distortion with negativity often being the defining characteristic. One type of cognitive distortion that may impact capacity to consent to MAiD is “protective action” – taking inappropriate protective action to avoid future negative emotion.[xix] There is no requirement for a formalized evaluation of cognitive distortion as part of a capacity assessment for any type of medical decision, including MAiD decisions.[xx]

I suggest an expansion of the cognitively oriented approach to capacity assessment: the assessment should emphasize a bio-psycho-social model—including evaluation of cognitive distortion, hidden motivations, social pressures, and cultural/family values. This may be one means of improving the evaluation of capacity to consent to MAiD for all patients, including those with a MD-SUMC.

[i] https://www.canada.ca/en/department-justice/news/2022/12/statement-by-ministers-lametti-duclos-and-bennett-on-medical-assistance-in-dying-in-canada.html

[ii] Bahji, A., & Delva, N. (2022). Making a case for the inclusion of refractory and severe mental illness as a sole criterion for Canadians requesting medical assistance in dying (MAiD): a review. Journal of Medical Ethics, 48(11), 929-934.

[iii] https://camapcanada.ca/wp-content/uploads/2022/02/Capacity-assessment.pdf

[iv] Jocelyn Downie & Justine Dembo, “Medical Assistance in Dying and Mental Illness under the New Canadian Law” (2016) Open JEMH 1-9.

[v] Miller, F. G., & Appelbaum, P. S. (2018). Physician-assisted death for psychiatric patients—Misguided public policy. New England Journal of Medicine, 378(10), 883-885.

[vi] Margaret Isabel Hall, Mental Capacity in the (Civil) Law: Capacity, Autonomy, and Vulnerability, 2013 58-1 McGill Law Journal 61, 2013.

[vii] Council of Canadian Academies. The state of knowledge on medical assistance in dying where a mental disorder is the sole underlying medical condition. Ottawa (ON): The Expert Panel Working Group on MAID Where a Mental Disorder Is the Sole Underlying Medical Condition; 2018.

[viii] Ganzini, L., Leong, G. B., Fenn, D. S., Silva, J. A., & Weinstock, R. (2000). Evaluation of competence to consent to assisted suicide: views of forensic psychiatrists. American Journal of Psychiatry, 157(4), 595-600.

[ix] Macleod, S. (2012). Assisted dying in liberalised jurisdictions and the role of psychiatry: A clinician’s view. Australian & New Zealand Journal of Psychiatry, 46(10), 936-945.

[x] Ganzini, L., Fenn, D. S., Lee, M. A., Heintz, R. T., & Bloom, J. D. (1996). Attitudes of Oregon psychiatrists toward physician-assisted suicide. The American journal of psychiatry.

[xi] Seyfried, L., Ryan, K. A., & Kim, S. Y. H. (2013). Assessment of decision-making capacity: Views and experiences of consultation psychiatrists. Psychosomatics, 54, 115–123.

[xii] Kim, S. Y., Kane, N. B., Keene, A. R., & Owen, G. S. (2022). Broad concepts and messy realities: optimising the application of mental capacity criteria. Journal of Medical Ethics, 48(11), 838-844.

[xiii] Grisso, T., Appelbaum, P. S., & Hill-Fotouhi, C. (1997). The MacCAT-T: A clinical tool to assess patient’s capacities to make treatment decisions. Psychiatric Services, 48, 1415 – 1419.

[xiv] Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 2nd ed. Baltimore, Williams & Wilkins, 1991

[xv] Eike­Henner W. Kluge (2005). Competence, Capacity, and Informed Consent: Beyond the Cognitive­Competence Model. Canadian Journal on Aging / La Revue canadienne du vieillissement, 24, pp 295­304 doi:10.1353/cja.2005.0077

[xvi] Price A, McCormack R, Wiseman T, et al. Concepts of mental capacity for patients requesting assisted suicide: a qualitative analysis of expert evidence presented to the Commission on Assisted Dying. BMC Medical Ethics. 2014;15(32):1–11

[xvii] Breden, T. M., & Vollmann, J. (2004). The cognitive based approach of capacity assessment in psychiatry: A philosophical critique of the MacCAT-T. Health Care Analysis: HCA, 12(4), 273-83; discussion 265-72.

[xviii] https://dictionary.apa.org/cognitive-distortion

[xix] Brodeur, J., Links, P. S., Boursiquot, P. E., & Snelgrove, N. (2022). Medical Assistance in Dying for Patients with Borderline Personality Disorder: Considerations and Concerns. The Canadian Journal of Psychiatry, 67(1), 16-20.

[xx] Dembo, J., van Veen, S., & Widdershoven, G. (2020). The influence of cognitive distortions on decision-making capacity for physician aid in dying. International journal of law and psychiatry, 72, 101627.