MAID Review Panel Member Questions ‘Advanced Decline’ Approvals for Mild Dementia Patients

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A member of Ontario’s medical assistance in dying (MAID) review panel is raising concerns that some doctors’ “flexible” interpretation of MAID eligibility has enabled patients with mild dementia to qualify.

Trudo Lemmens, a member of Ontario’s Chief Coroner’s MAID Death Review Committee, recently authored a paper analyzing MAID cases involving patients with dementia. In some cases, documented in the committee’s reports, patients in earlier stages of the disease were found to meet legal criteria for intolerable suffering and an advanced state of irreversible decline in capability, even though they had not yet experienced severe cognitive decline and their eligibility was based on the anticipated loss of capacity from dementia.

Lemmens, who is professor of health law and policy at the University of Toronto, says that the “flexible interpretations” by assessors of legal eligibility criteria, including “reasonably foreseeable natural death” and “advanced state of irreversible decline,” are allowing people who might not otherwise qualify to access MAID.

“Those who are concerned, as I am, about the significant expansion of the MAID practice, and the growing evidence of the at times clearly problematic practices, will find in these [committee reports] further confirmation that our MAID regime has serious problems,” Lemmens wrote in the Nov. 3 paper.

“In my view, the most appropriate answer to the problems raised here is to rethink our MAID regime,” he added.

Lemmens wrote that nearly all dementia cases were approved under Track 1 of Canada’s MAID system, which applies to individuals whose natural death is reasonably foreseeable. Track 2 is for those whose death is not foreseeable and involves additional safeguards, including consultation with a specialist in the patient’s condition and providing information on options to alleviate suffering.

Euthanasia became legal in Canada in 2016, and in 2021, the federal government passed legislation that eliminated the requirement that a person’s death must be “reasonably foreseeable” to qualify for MAID.

Canada’s MAID regulations are among the most permissive in the world, and use of the system has been on the rise as eligibility has been expanded. The federal government has described MAID as a system put in place to support the “autonomy and freedom of choice of individuals.”

Under current criteria, a person must be found to have a “grievous and irremediable medical condition” to qualify for MAID. Specifically, this requires having a “serious and incurable” illness, disease, or disability; being in an “advanced state of irreversible decline in capability”; and experiencing “physical or psychological suffering” caused by that condition that is intolerable to the person and cannot be relieved “under conditions that the person considers acceptable.”

In recent years, patient advocacy groups have raised concerns about unsolicited offers of euthanasia and cases in which people pursue assisted death because of severe socioeconomic hardship.

In one instance, captured by the Ontario MAID review report last year, a man with inflammatory bowel disease, mental health challenges, and addiction was offered assisted death during a psychiatric assessment without first being offered addiction treatment. He later received MAID.

In a separate case, a B.C. family launched a lawsuit against federal and provincial authorities after a man with mental illnesses was euthanized in 2022 while on a day pass from a psychiatric ward in Vancouver.

Mild Dementia and MAID

In his paper, Lemmens cites cases from a September report by Ontario’s MAID Death Review Committee, titled “Navigating MAiD with Persons with Dementia.” It describes six anonymized cases of patients who were diagnosed with dementia and eventually received MAID, and describes the discussions that panel members had while reviewing these cases.

Between 2023 and 2024, 1.1 percent of all MAID deaths in Ontario (103 cases) were due to dementia, with all but one provision classified as Track 1.

In one case, a man in his late 70s, who had been very mentally active and had a professional background, developed behavioral and psychiatric symptoms of dementia, particularly nighttime agitation. He also showed difficulties with instrumental activities of daily living, such as driving and participating in hobbies.

Three months later, the patient, who is referred to in the report as Mr. 6B, chose to pursue MAID “due to psychological suffering related to his loss of independence, inability to engage in meaningful activities, and anticipatory fear of further cognitive and functional decline,” according to the report. The report also notes that he was in the mild stage of dementia—which had been confirmed via a geriatric specialist—that he retained clear decisional capacity, and that his suffering “was primarily psychological in nature.”

A family doctor and a secondary assessor, who was a palliative care doctor, determined the patient to be eligible for MAID under Track 1, concluding that his death “was reasonably foreseeable due to the terminal and progressive nature of his condition.”

In another case, a woman in her 70s, who over a four-year period had been experiencing subjective cognitive decline, dizziness, unsteadiness, and visual disturbances, and who needed help with instrumental activities of daily living, was diagnosed with mild dementia.

Citing her dementia diagnosis, the patient, referred to in the report as Mrs. 6C, later expressed her wish to access MAID once she needed help with personal care. Over the next six months, her physical condition declined, and she became dependent on assistance for basic activities of daily living. Eventually, she chose to proceed with MAID.

Both MAID assessors found that her death was not reasonably foreseeable and applied Track 2 safeguards. The report says her suffering was described as “intolerable,” resulting from physical symptoms as well as the psychological burden of increasing dependency and loss of autonomy. It also notes that, before MAID was provided, “a comprehensive reassessment confirmed that all eligibility criteria and safeguards were met.”

‘Advanced’ Decline

Some panel members expressed concern that given the mild stage of dementia observed in several cases, it was unclear whether the grievous and irremediable criterion for MAID eligibility was met because of the absence of an advanced state of irreversible decline.

“These members suggested that interpreting ‘advanced’ to encompass early stages of decline, including early stages of loss of cognitive function, weakens the protective intent of legislation,” reads the report. “If mild cognitive and functional impairments are deemed sufficient to meet this threshold, the term ‘advanced’ loses its substantive meaning, and the eligibility criteria may become overly permissive.”

Some panel members disagreed, saying that interpreting this legislative requirement requires a “person-centered approach” that recognizes that “suffering is a subjective experience,” says the report. It cites the case of Mr. 6B for whom the loss of his ability to read and participate in intellectually stimulating activities was seen as “a profound and deeply personal decline” and a radical departure from his previous quality of life and identity.

A few members said the criterion of an advanced state of decline could be met by the definition of dementia itself, which involves an unpredictable timeline of cognitive decline during which individuals may lose the ability to make informed health care decisions. Other members argued that, because dementia is a terminal condition, all patients with dementia would in theory be considered eligible for MAID under the current criteria.

“In this view, the ongoing risk of losing capacity places persons in a continuous state of functional loss, which may warrant appropriate application under the current legislative framework,” reads the report.

Meanwhile, other members took a different view, saying the legislative criterion of “advanced decline” would not be met in these cases. They argued that “advanced” should refer to a person’s current state of decline, not an anticipated future loss.

Lemmens says that allowing the “advanced” decline criterion to be broadly interpreted opens the door to the influence of assessors’ subjective views and biases about life with cognitive decline.

“Interpreting the concept of ‘advanced state of irreversible decline of capability’ as based on a largely subjective and individual experience further erodes an important safeguard,” he wrote.