Can we change our minds?

In his article centred on advance directives Dr. Wohlgemut, a long-term care medical director in Ontario, makes the following statement about medical assistance in dying (MAiD):

“Patients with severe dementia lack the ability to consent to the procedure, and it is doubtful that a patient in the early stages of dementia (and capable enough to initiate a waiver of final consent) could be considered to have death “reasonably foreseeable” (in the absence of serious comorbidities) as is currently required. Consequently, MAID would become an option only if an advance request were permitted; it is worth noting that the initial report commissioned by the federal government recommended recognizing advance directives in specific circumstances, but this was not ultimately adopted by politicians.”

Unfortunately, Dr. Wohlgemut makes two significant errors about MAiD eligibility.

His first mistake is in his apparent understanding of what constitutes a reasonably foreseeable natural death (RFND). "Reasonably foreseeable" is best understood as "reasonably predictable". Patients with dementia who are close to losing capacity almost always have a reasonably predictable natural death, given the average life expectancy of 5-6 years from the time of diagnosis, let alone from the time of loss of capacity. Some clinicians are under the misapprehension that the patient must be terminally ill to be found to have a reasonably foreseeable natural death. This is not the case, as is clear from the law itself and also from the findings of AB v. Canada (2017) http://eol.law.dal.ca/wp-content/uploads/2017/06/20170619152447518.pdf

The second mistake is that even if an RFND is deemed not to exist, the change in the law in March 2021 allows MAiD for patients without an RFND after a 90 day assessment period, although a Waiver of Final Consent may not be signed by patients in this group.

Patients choosing to have MAiD must have a grievous and irremediable condition. This is defined as having (1) a serious and incurable illness, disease or disability, (2) an advanced state of irreversible decline in capability, and (3) intolerable suffering due to the illness or the decline and as judged by the patient rather than the assessing clinician. Patients with dementia do have a serious illness. The anticipated loss in the near future of decisional capacity - the right to make decisions about one’s own care - is, in and of itself, evidence of their advanced state of irreversible decline in capability. It is for the patient to decide if they are suffering intolerably; those who choose to have MAiD because of their dementia have decided that they are.

Dr. Wohlgemut’s main thrust is around the issue of advance requests for MAiD within the more general issue of advance directives. I fully support his sensible call for careful discussions about the issue. However, the discussions should be informed by accurate information about the status quo and it is important that clinicians and patients alike should not be misled into believing that MAiD is currently unavailable for patients with dementia who still have capacity but who lack other conditions leading to an RFND. It is especially important that clinicians in positions such as Dr. Wohlgemut do not provide patients, their families, and other supporters, with erroneous information about MAiD for dementia.