Navigating autonomy and decision-making capacity: Legal and ethical considerations in Medical Assistance in Dying for individuals with mental disorders in Portugal

Abstract

Portugal has recently amended its absolute prohibition on euthanasia and assisted suicide that now permits it conditionally and exonerates those providing this practice. People with a mental disorder or medical condition that affects their decision-making capacity (DMC), regardless of the mental disorder, its contemporaneity, or its connection to the decision itself are expressly excluded from this service unless they are assessed and deemed capacitous. In the absence of any statute concerning capacity or assisted decision-making, this legislation raises concerns about potential discrimination, conflicting with the presumption of capacity principle. A shift toward a DMC model is proposed. This model allows for the assessment of capacity for specific decisions, addressing the ethical implications of respecting or overriding a terminally ill person’s autonomous will for medical assistance in dying. This review paper examines the challenges of assessing DMC in depression and examines several questions of ethical and legislative nature for future consideration.