Webcast archive: Capacity and Undue Influence – Part I

This week, we look at the definition of “capacity,” and the many factors that may influence decision-making related to assisted suicide.

In this episode of Euthanasia & Disability, Amy Hasbrouck, Christian Debray, and Taylor Hyatt discuss:

  • Capacity and Undue Influence – Part I
  • Ontario court orders doctors to refer for AS/E
  • Announcement: We still need YouTube subscribers

Please note that this text is only a script and that our webcast contains additional commentary.


  • In all assisted suicide and euthanasia (AS/E) laws, one of the supposed safeguards is that, in order to be eligible for AS/E, the person has to be capable to make a decision, and the decision must be informed and voluntary (not subject to “undue influence” or “external pressure”).
  • Specifically, in the Carter case, the Supreme Court wanted to protect “vulnerable people” from “being induced to commit suicide in a time of weakness.”
  • In the next few weeks we’re going to talk about what it means to be capable to choose death, who makes that decision, and how.  We’ll discuss what “vulnerable person” means, and we’ll also define “undue influence” and “external pressure” as they apply to AS/E.  Finally, we’ll look at a study from the Netherlands showing that doctors there aren’t being very careful in how they determine capacity.
  • I said “supposed” safeguards because assisted suicide and euthanasia laws don’t actually explain how these safeguards are supposed to be carried out or enforced.  So even though the Courts in the Carter case said we need a “stringently limited, carefully monitored system,” there are no directions in the law or the proposed regulations as to how the doctor should decide who has the capacity to choose to die, or what situations add up to “undue influence” or “external pressure.”
  • The words “capacity” and “competence” are often used to say the same thing.  In legal terms, “capacity” means the ability to make medical decisions, while “competence” means the person is able to make decisions about financial or other matters.  But if you read any articles, court cases or laws, you’ll see that the two words are used interchangeably.
  • One really basic problem with using the capacity standard is that it applies to decisions for medical treatment, not euthanasia, where the stakes are much higher.
    • Medical decisions are based on the hope of cure or improvement. The “hope” provided by AS/E is only of a false idea of control; it doesn’t end the person’s suffering as much as it ends the person who is suffering.
    • Medical decisions are about risk and weighing costs and advantages of one choice over another or try other treatments.  AS/E has only one outcome.
    • With medical decisions, the person may have the option to change their mind.  With AS/E you can’t take it back.
  • In general, the higher the stakes, the more detailed the evaluation of capacity is supposed to be.  So, you would imagine that the person who does the evaluation would be trained to do it and would use the best tool possible.  Not so much.
  • There are several questionnaires (assessment tools) that mental health experts have created to evaluate someone’s capacity.  None of them are adapted to use for AS/E decisions.  Nor is it mental health professionals who decide if a person is capable, it’s family doctors, and they are not required to use an assessment tool to determine a person’s capacity.
  • An important thing to know about capacity is that everyone is assumed to be capable to make medical decisions, unless there’s some reason to think they’re not.  Under the most common definition of capacity, the person must be able to:
    • Understand the information they are given (understanding);
    • Apply the facts to their situation (appreciating);
    • Weigh the benefits and risks of each choice (reasoning);
    • Make a choice, and express it (expression).
  • This definition focuses on a person’s cognitive abilities (to remember and think things through), but completely ignores the emotional and social factors that can influence the decision.  Adding that the choice must be “voluntary” doesn’t cover all those factors.
  • In a 2016 report entitled “Assessing Vulnerability in a system of Physician Assisted Death in Canada,” the Canadian Association of Community Living listed and explained some of these factors in defining what makes a person vulnerable to “being induced to commit suicide in a time of weakness.” These are:
    • The person is suicidal, rather than making a “well-reasoned” request
    • The person’s “suffering” comes from social and emotional, more than physical factors.
    • The person is being persuaded, encouraged, pressured or coerced to ask for euthanasia.
    • The person lacks resilience, meaning they can’t bounce back, or they don’t have the energy or strength to resist and overcome the problems they face.
    • Evidence that the person is actually vulnerable, not just possibly vulnerable.
  • Here are some other problems that arise when deciding if someone is capable.
    • If the person has a communication disability, the doctor may depend on a relative or carer to speak for them, or my use a communication tool that doesn’t work well.
    • Even when the person doesn’t have a communication problem, doctors may talk to the family member instead of directly to the disabled person.
    • Doctors rarely provide all the information the person needs to make an informed decision.
    • People often don’t remember everything the doctor told them, and doctors don’t verify that the person really understands what they’re saying.
    • People don’t always use the information in logical ways:
      • They may make decisions based on intuition or instinct, rather than on the facts;
      • People may only look at the possible results, rather than weighing the risks.
    • People feel pressure to sign informed consent forms.  One study showed that most people thought they had to sign the consent form, whether they wanted the treatment or not.
    • Many people prefer to give over the decision making to others.
    • The informed consent process takes a while, and doctors often don’t allow enough time to help the person think about their options.
    • The feelings and values of the person and the doctor are not taken into account.
    • The doctor’s estimate of the person’s quality of life plays a huge role in the capacity decision.


  • An Ontario Divisional Court Decision, released yesterday, says that physicians in the province who have a moral or religious objection to some controversial medical procedures – such as euthanasia – must refer patients to another doctor who will perform the procedure.
  • Five Ontario doctors and three groups, (the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies and Canadian Physicians for Life) challenged the policy making the referrals mandatory. They called it a violation of the “freedoms of religion and conscience” guaranteed in the Charter of Rights and Freedoms. The policy was originally put in place by the College of Physicians and Surgeons of Ontario, in 2015.
  • The Divisional Court decision conflicts with the preamble to Canada’s assisted suicide law, which states in part, “everyone has freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms…(and) nothing in this Act affects the guarantee of freedom of conscience and religion.”
  • Although the court acknowledges the limits it has placed on freedom of conscience, it says the limits are justified by the benefits to people seeking medical care.  The most important one is equal access to care, especially in rural areas.
  • The court added that there is no “right” to practice medicine, or to work in a particular specialty. Someone can choose to practice an area of medicine that will not include these moral dilemmas.  However, someone in need of medical treatment cannot choose whether they need it.