Most terminally ill cancer patients have impaired capacity

In a landmark study of decision making capacity of persons with terminal cancer and a prognosis of less than six months to live – that is a cohort that would be eligible for assisted suicide under the schemes in Oregon and other US States as well as in Victoria, Australia – 90% were found to be impaired in regard to at least one of the four elements of decision making – Choice (15% impaired), Understanding (44%), Appreciation (49%) and Reasoning (85%).

Under Victoria’s Voluntary Assisted Dying Act 2017, for example, “a person is presumed to have decision-making capacity unless there is evidence to the contrary” (Section 4(2)).

This study suggests that, at least in the case of persons with cancer and a prognosis of less than six months to live, it would be more prudent to start from the presumption that they are likely to have impaired decision making capacity unless it is demonstrated to the contrary.

The study also found a significant discrepancy between physician assessments of decision making capacity compared to the actual decision making capacity as tested on the MacCAT-T scales.

Physicians assessed as “unimpaired” 64% of those who, according to the MacCAT-T assessment had impaired Reasoning; 70% who had impaired Appreciation; 61% who had impaired Understanding and 100% of those who had impaired Choice.

This lack of ability of physicians who are actually caring for terminally ill cancer patients with a prognosis of less than six months to live to accurately assess their patients’ decision making capacity is likely to be exceeded in flawed assessments of decision making capacity by other doctors – who do not necessarily have an established relationship with the person – making an assessment of decision making capacity in relation to a request for assisted suicide.

Schemes like those in Oregon and Victoria provide for assessing doctors to refer to a specialist for an assessment of decision making capacity but this is purely optional on the part of those doctors. In Oregon in 2018 only 3 out of 168 people (1.78%) who died by assisted suicide under the Oregon law were referred by the prescribing doctor to a psychiatrist or psychologist for consultation on whether or not the person was not “capable” due to “impaired judgement”.

This failure of doctors to identify a lack of decision making capacity when assessing terminally ill persons means that there will inevitably be wrongful deaths by assisted suicide or euthanasia due to lack of capacity.

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