Equality of Autonomy? Physician Aid in Dying and Supported Decision Making

01 Jan 2021

The legalization of physician aid in dying (“PAID”) has been spreading across the United States and is currently legal in ten jurisdictions. Meant to respect autonomy at the end of life, PAID legislation is modeled after the Oregon Death with Dignity Act, which permits only terminally ill adults with contemporaneous decisional capacity to choose to hasten death with PAID. Right-to-die advocates and legal scholars have critiqued the strict eligibility requirements, which although meant to function as safeguards against mistakes and abuse, can be autonomy thwarting. Advocates and scholars have thus proposed using advance directives for PAID to expand access to this end-of-life option. Such a reform would permit terminally ill persons with moderate dementia or other types of decisional impairments to access PAID.

To date, scholars have neglected another possibility for respecting autonomy at the end of life by expanding access to PAID for terminally ill persons with decisional impairments: supported decision-making. Supported decision-making legislation is also spreading across the United States as an alternative to guardianship and surrogate decision-making for persons with cognitive disabilities and is an option in nine jurisdictions. With this model of decision-making, a person with a cognitive disability receives decision-making assistance from supporters to facilitate the exercise of autonomy and retain legal capacity.

This Article is the first to address whether terminally ill persons with cognitive impairments should be able to access PAID through supported decision-making. If provided with decision-making support, terminally ill persons with cognitive impairments may be able to elect PAID intentionally, voluntarily, and with understanding; that is, despite their impairments, such persons may be capable of autonomous end-of-life decision-making. This Article thus argues that the principle of equality demands that the law not exclude terminally ill supported persons with decisional impairments from PAID. This Article also argues that supported decision-making is a superior means for terminally ill persons with decisional impairments to access this end-of-life option compared to advance directives, which have numerous and well-documented problems.

This Article also considers how PAID and supported decision-making laws interact in the one jurisdiction that currently has both laws, the District of Columbia, and concludes that it may be permissible for a terminally ill person with a decisional impairment, which would otherwise preclude them from accessing PAID, to elect this end-of-life option with assistance from a supporter. The Article ends with considerations for policymakers about building additional safeguards into these laws to ensure that persons with cognitive disabilities do not mistakenly, without understanding, or after the application of undue pressure hasten death through PAID.