AID IN DYING LEGAL CORNER
P AT IENTS WITH LIMITED ABI LITY TO CO MMUNICATE THA DD E U S M AS ON P O P E , JD, P H D, H E C- C Occasionally, aid-in-dying clinicians encounter patients with limited communication abilities. While these patients seem to respond appropriately, their responses may be limited to minimal one-word replies. For example, they might say only “yes” or “no” when answering questions. In such cases, clinicians might be unsure whether this level of communication is sufficient either for confirming capacity or for signing a consent form—both mandatory under all aid-in-dying statutes.
Confirming decision-making capacity All aid-in-dying laws require that the patient have decision-making capacity. Indeed, this is such an important and central requirement that the patient’s capacity must be confirmed by at least two, and sometimes even three, clinicians.1 But how can clinicians confirm ca-
pacity when the patient has such limited communication abilities? First, do not automatically assume or conclude that the patient lacks capacity solely because of their limited communication capabilities. The strong trend in healthcare law and policy has been to work with patients, make accommodations, and adapt tests to assess capacity.2 For example,
THADDEUS MASON POPE is a bioethicist, lawyer, and health law professor at Mitchell Hamline School of Law in Saint Paul, Minnesota. He maintains a special focus on patient rights, health care decision-making, and end-of-life options.
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