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Posted on August 29, 2019 at 3:30 AM

Many patients want to avoid living in the late stages of dementia. For example, Margot Bentley tried to avoid living in advanced dementia with an advance directive that refused hand feeding. But the British Colombia court ruled that her present swallowing when a spoon was placed in her mouth constituted revocation of her earlier wishes.

Similarly, a 70-year-old Dutch woman completed an advance directive requesting euthanasia when her dementia advanced. Like Bentley, the Dutch woman had seen others linger for a long time in nursing homes with severe dementia and knew that was a life she found intolerable. Unlike Bentley, the Dutch woman’s advance directive was honored. On April 22, 2016, her physician administered euthanasia.  

Nevertheless, this week, the Dutch woman’s physician is the defendant in a criminal prosecution in the Hague. While prosecutors are not seeking punishment, they charge that the 68-year-old physician should not have proceeded with the euthanasia because the patient made some indications (during euthanasia administration) that she had changed her mind.

Prosecutors charge that the physician should not have proceeded in the face of doubt and uncertainty. The physician argues that she, in fact, had no doubt. The woman’s dementia was far advanced and she lacked capacity. Therefore, her words and actions did not invalidate her advance directive.

The Dutch case is important, because patients with dementia may make some gesture that “seem” to contradict their prior instructions. What weight should we accord incapacitated utterances or gestures? Do they constitute a revocation of the prior instructions? If so, the only way for individuals to avoid living in advanced dementia is to act prematurely when they still have capacity.

Margot Bentley in a state she sought to avoid with her advance directive

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