It was Humanists Malta that last year came up with the idea of considering legislating for the introduction and possibility of drawing up living or biological wills. It is quite interesting, if not paradoxical, that such a consideration was aired at practically the same time that we were toying with the idea of having a holistic and national discussion on the much-dreaded subject of euthanasia. Contrary to euthanasia or assisted suicide, whereby one would be lawfully entitled to end life prematurely and in an unnatural way, anyone wishing to record future instructions in the eventuality of having to require some kind of medical treatment would be able to do so by drawing up a living or biological will.
Persons have the capacity to make choices about their care, treatment, and how they wish to live. This is within their right to self-determination. A person’s right to self-determination is grounded in the value of human dignity. Yet, there can be situations when the person may no longer be competent to make choices about his or her health. These include patients who are not in a position to make a decision because they are unconscious. Capacity might be temporarily impaired in patients in an emergency situation or in a reanimation room, and in these cases, the appropriate consent cannot be obtained. Considerations need to be given in situations where the patients’ mental capacity can be diminished or impaired, for example, in neurodegenerative disorders, mental illness, or Parkinson’s disease.
Special considerations, too, need to be given to children, who, although minors, are mature enough to understand what is happening to them and who can express their specific wishes and opinions. The questions that arise are: how can patients continue to exercise this right when their capacity to take decisions is impaired, and what effect do their previously expressed wishes have on medical decisions? This is where the importance of living or biological wills, advance directives, and the health care special power of attorney comes in.
A living will is a legal document that lays out a patient’s written direction to healthcare professionals about the course of treatment the patient would or would not approve of in situations where the patient is unable to give informed consent or refuse treatment due to incapacity.
The special (durable) power of attorney for health care is a legal document that enables persons to appoint someone as a health care proxy to make health care decisions on their behalf when they are no longer capable of making their own decisions. The appointed person has, in essence, the same rights to request or refuse treatment that the patient would have if still capable of making and communicating health-care decisions.
On the other hand, advance directives can be in the form of a living will, a special (durable) power of attorney, or a combination of both. Oral statements made by patients, either instead of written advance directives or to supplement them, may be useful guidance to determine what type of treatment they wish or do not wish.
The special (durable) power of attorney for health care and the living will can be combined into one document, whereby the patient can also give specific instructions about treatments they want or do not want and other issues that concern them.
But what could be the downside of all this? It is difficult to predict what choice a patient might want to make in the absence of a diagnosis or a specific condition and without knowing the particular circumstances in which he or she will be. Even if patients know that they are suffering from a particular condition, their wishes cannot possibly cover all eventual clinical situations.
Living wills might be too general and vague or too specific to give guidance to the real clinical situation that needs to be addressed. The latter can be problematic, especially if the actual situation does not directly parallel the situation covered by the directive. Living wills rarely dictate the care that needs to be given to a patient when he lacks decision-making capacity and are not sufficient to guide the complex issues and obligations of caregiving.
There are doubts about whether the preparation and execution of a living will is really an exercise of informed consent at all, and how informed consent can occur so far away from the real clinical situation. The possibility that a living will was executed without full knowledge of the situation and options available means it lacks the moral weight of an autonomous and contemporaneous choice.
Yet, should these types of wills, advance directives, and healthcare proxies ever be introduced in Malta, it would be imperative to have in place robust and clear legal requirements for witnessing or notarizing them and to have a special register available to healthcare professionals. Failing that, the living will or information in the living will might not be available when decisions are to be taken, either because healthcare professionals treating the patient did not know about it because it was not available or not recorded in their file, or because the family members who knew about it were not available at the time decisions had to be taken. Other possibilities could be that a living will signed years before might have been misplaced or forgotten, or that the family members who knew about it were deceased.
At any time in our lives, our body is like a garden, and our will should be the gardener.
Dr Mark Said is a lawyer