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A test for mental capacity to request assisted suicide
  1. Cameron Stewart1,
  2. Carmelle Peisah2,3,
  3. Brian Draper2,3
  1. 1Centre for Health Governance, Law and Ethics, Sydney Law School, University of Sydney, Australia
  2. 2School of Psychiatry, University of New South Wales, Australia
  3. 3Academic Department for Old Age Psychiatry, Euroa Centre, Prince of Wales Hospital, Randwick, Australia
  1. Correspondence to Associate Professor Cameron Stewart, Director of the Centre for Health Governance, Law and Ethics, Sydney Law School, University of Sydney, NSW 2006 Australia; cameron.stewart{at}


The mental competence of people requesting aid-in-dying is a key issue for the how the law responds to cases of assisted suicide. A number of cases from around the common law world have highlighted the importance of competence in determining whether assistants should be prosecuted, and what they will be prosecuted for. Nevertheless, the law remains uncertain about how competence should be tested in these cases. This article proposes a test of competence that is based on the existing common law but which is tailored to cases of assisted suicide. The test will help doctors, other health professionals and lawyers determine whether the suicidal person was able to competently request assistance. Such knowledge will help to reduce some of the current uncertainty about criminal liability in cases of assisted suicide.

  • Suicide
  • assisted suicide
  • mental capacity
  • undue influence
  • law
  • informed consent
  • prolongation of life and Euthanasia

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  • Competing interests None but CP would like to declare that she was an expert witness for the prosecution in the trial of Justins and Jenning.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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