One of the major objections raised against proposals for legalised assisted dying is that it would be unsafe for “vulnerable people“. MDMD propose the concept of an Extended Advance Decision (EAD) which we hope can be used to significantly improve the protection of vulnerable people, by ensuring that their true wishes are respected, and if in doubt, playing safe by rejecting a request for an assisted death.
Current Advance Decisions (ADs) relate to when a person has lost mental capacity. An EAD would additionally enable stable wishes for future situations to be recorded for reference while they still have mental capacity.
Like an AD, an EAD could cover refusal of certain medical treatments in certain conditions. In addition, an EAD could record the person’s view on assisted dying. In particular whether they would like to have the OPTION of an assisted death at some point in the future, and under what conditions. (Equally, someone strongly opposed to assisted dying could record that view – though in the case of someone considered “vulnerable” who had no previously stated desire for the option of an assisted death, it would be assumed by default that they did not want that option.)
An EAD should be made as early as possible – before a person reaches the stage where they are considered significantly susceptible to coercion or persuasion by others. It should be witnessed by an independent person, and also signed by a doctor, typically their GP, who should be convinced that the person has mental capacity and does not have a level of vulnerability that reasonably causes concern. It might be thought necessary for this to be reconfirmed by a second doctor.
One possibility for how an EAD could be used in the context of a future right-to-die law is that if someone makes a request for an assisted death, an independent assessment should be made to determine, (at least):
- That the person has mental capacity.
- That the request is a settled decision.
- The degree to which the person, while still having mental capacity, may have a level of vulnerability that reasonably causes concern that they may be open to persuasion or undue influence by others.
- Additionally, in the case of someone considered potentially vulnerable, it would need to be established that the request for an assisted death was consistent with their views before they became “vulnerable”. An EAD requesting the option of an assisted death would achieve this, putting beyond reasonable doubt any suspicion that the request is the result of coercion.
MDMD hope that people will be reassured that a future right-to-die law that uses an EAD along the lines proposed here will not put vulnerable people at risk. Vulnerable people who have not previously made an appropriate EAD (and do not have an equivalent means of demonstrating their established wish for an assisted death, prior to their vulnerability), would have exactly the same protection as today – any request for assistance to die would be refused.
Although there would be no compulsion to make an EAD, anyone who wishes to have the option of assistance to die in the future would be very highly recommended to do so, as without it their request could be rejected if they were deemed “vulnerable” at the time – something which is impossible for them to predict. (Many elderly people, when they are approaching the end of life, could reasonably be considered vulnerable. )
People who remain fully mentally capable until they die, where there are no reasonable concerns of vulnerability, would not need an EAD for their request for an assisted death to be accepted, as they can still safely make decisions and even change their mind completely. People like Lord Brian Rix for example, may have been strong opponents of assisted dying in the past, and would not have written an EAD requesting that option in the future. But if they find themselves in a situation which they find intolerable, and their mental capacity is such that there is no reasonable risk of them being unduly persuaded, their changed opinion should be respected, once it is considered “settled”.
Although the precise details of how EADs can best be used are open to discussion, EADs may turn out to be a valuable step forward in balancing the need for society to protect the vulnerable, against the desire for individuals to have autonomy over their notion of a good death when that requires medical assistance to die.