Can a Patient’s Surrogate or Family Members Request MAID on Behalf of the Patient?

In the United States, current legislation does not permit family members, surrogates, healthcare agents, conservators, or other decision-makers to request medical aid in dying (MAID) on behalf of the patient. Additionally, although part of the eligibility criteria for MAID indicates that the patient must be able to make decisions regarding their care, the patient cannot include their request for MAID in their advance directive. The patient must request MAID following the specific directions and criteria outlined in the law, reflecting that the decision is voluntary and an act of autonomy. 

While this criterion aims to safeguard against misuse or coercion in the practice of MAID, it can inadvertently limit end-of-life choices for certain patient populations. Advocates have voiced concerns that these criteria may exclude individuals with disabilities, especially those with cognitive impairments. Despite their ability to express preferences, these individuals might not have their wishes acknowledged due to the perception that their disabilities affect their decision-making capacity. To address this, advocates propose considering supported decision-making as an alternative to surrogate decision-making, promoting increased accessibility to MAID.

In supported decision-making, the patient maintains their autonomy and ability to share their preferences with a supported decision-maker to establish that they have the capacity to make decisions regarding their care. This differs from surrogate decision-making, which grants the surrogate the full authority to make decisions on behalf of the patient. Currently, Colorado, Washington, and the District of Columbia are the only jurisdictions in the U.S. that have enacted legislation addressing both supported decision-making and MAID. However, how these legislations intersect in end-of-life settings remains to be seen since supported decision-making usually applies in other contexts, such as pain management. For now, MAID will only remain accessible to patients who can initiate and complete the request process independently within the context of the current eligibility criteria. 

Sources

“End of Life Option Act”. Sutter Health. https://www.sutterhealth.org/patient-resources/records-planning/end-of-life-option 

“Supported Decision Making Program”. Administration for Community Living. https://acl.gov/programs/consumer-control/supported-decision-making-program 

“Supported Decision-Making and Merciful Health Care Access: Respecting Autonomy at End of Life for Individuals with Cognitive Disabilities”. Washington and Lee Law Review. https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=4813&context=wlulr