Thank you very much.
I just want to express two reservations regarding the legalizing of advance directives for medical assistance in dying.
My first point is a reminder of the basic legal and moral principle that when people become unable to make decisions, such as financial or health care decisions, our law sets out protective regimes to ensure that they do not harm themselves. An important feature of such regimes is that decisions must be taken in the best interests of the person. They must be taken to foster that person's well-being. We have to provide that person with the care that is most respectful of their residual agency and most beneficial to their well-being.
At first sight, it would appear that respecting the instructions that someone gave in the past to treat them in the future looks respectful of their autonomy. However, identity, desires and needs change over time. While it may well be the case that respecting past instructions is a way to respect autonomy in many contexts, it's not obvious that it is always the case, especially when people undergo important cognitive changes. When that happens, the person may have experiences and desires that are different from those they had in the past. For instance, they have never experienced what it is to live a life with fewer cognitive capacities.
To illustrate, let's imagine a 75-year-old patient with dementia called John, who is no longer able to make health care decisions. My first point is that decisions made on his behalf should only be made for his benefit.
One may assume that, of course, John without dementia, when he was, say, 50 years old, would care about his own future self and know his future self better than anyone. That would put him in a great position to say what's best for John at 75 years old, but we could suggest that it's not so obvious. For one thing, John may not make a decision in the best interests of his older self. He may have the best interests of someone else in mind.
For instance, he might not want to be a burden on an aging spouse or other members of his family, or he might have his own interests right now in mind rather than the interests of his older, sick self. For example, he might imagine his future self bedridden and highly dependent and feel shame at the thought that this is how he would end his life and how the people he cares about would last see him.
Perhaps this evaluation seems reasonable to many people. However, such an evaluation may potentially share discriminatory beliefs about the quality of life of people with illnesses and disabilities, and about whether their lives are worth living at all. Many people live happy lives with various significant medical conditions or a high level of dependency. However, if John or anyone within his family or health care team doesn't think so because of ableist generalizations, John at 75 years old would become the victim of ableist or ageist stereotypes.
The point I'm making is that, even if you personally believe that John ought to die because you personally would not like to live if you were in that situation, we should not end John's life because you feel that way. We should do what is best for John. We should care for the patient before us, and that is John with advanced dementia at age 75. It doesn't mean that John's past preferences are not relevant. The holistic assessment of what is in his best interest may include his past wishes and preferences.
My first point is that giving the last word to the former self of a patient, sometimes a cognitively and experientially distant self, is not necessarily always respectful and beneficent towards the patient in their current state, especially if a long time has passed. If new experiences occur that the person never experienced before, if new relationships of care and dependency occur that did not exist before, if new forms of suffering and new forms of resiliency and joy are experienced that weren't experienced before, and if significant cognitive changes have occurred in the person, it makes that close connectedness between past and present selves more and more questionable, and so would be a law giving control over the fate of someone with a cognitive disability to a significantly remote past self.
If it is true that we must make a new, holistic assessment of the patient's needs, not just indiscriminately apply their past wishes, my second point is that it seems very difficult, if not impossible, to detect a kind of suffering that would justify ending a patient's life when patients themselves don't have enough cognitive capacities to express their wish to die. If the state can stay away from endorsing conceptions of lives not worth living, it should.
That second point would apply both to non-voluntary euthanasia and to an advance request law, because for an advance request to be activated, doctors would still need to be able to identify that the patient, John at 75 years old with dementia, has indeed attained the kind of suffering that would justify triggering MAID according to the patient's past instructions.
Thank you.