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.