Living Will – A Patient’s Right to Self-Determination

While discussions on the morality of euthanasia rage on in the medical and legal worlds, a second discussion has recently been brought up by the Humanist Malta group; that of introducing ‘Living Wills’ into local legislation.

What is a Living Will?

A ‘Living Will’ is a notice written by a patient of sound mind that communicates their wishes on the type of treatment that they wish to receive or not, should they become incapacitated or otherwise unable to make or communicate decisions at the time.

Hence, if one is unable to make decisions on their own during their medical treatment, the Living Will would be able to convey their treatment wishes for them.

This could mean that the patient may decide to refuse certain medical treatment that would prolong or sustain their life, especially if their condition becomes terminal, or impedes their quality of life.

While it ensures that the person’s autonomy is respected and implemented, it also absolves the medical practitioners and their families from liability as they would be acting in accordance with the person’s wishes. However, this does not mean that a Living Will can be respected if it breaks the law or breaches the patients’ rights in any way.

Is it practised anywhere?

This concept is not a recent one, with 15 European countries having implemented varying legislations relating to this practice. While most countries have laws that allow patients to accept or refuse any type of medical treatment, countries such as Malta require the person to be able to clearly communicate their decision, which would mean that if a patient becomes incapacitated, there are (currently) no legal mechanisms available to enforce their wishes, which creates dilemmas for the presiding medical professionals and the patient’s family.

No legislation of this kind (or similar to it) has ever been proposed to parliament as of yet, although the ADPD party has included this concept in their 2022 electoral manifesto (pg. 82). Humanist Malta, with the support of The Geriatric Medicine Society of Malta, Malta Health Network, and Dr Michael Asciak, has therefore decided to propose the following legislation:

• To enable any person of sound mind over the age of 18 to register, in front of a notary, a notice of their wishes about medical treatment if they are unable to communicate decisions at the time of incapacitation.
• To allow the subject to designate another person to make decisions on their behalf if they are incapacitated.
• To ensure that such Living Will remains valid without regular review yet enables the subject to revoke or amend their Living Will at any time.
• To make Living Wills legally binding on medical professionals involved with the subject’s treatment.
• To ensure that medical professionals who comply with the provisions of a Living Will cannot be held civilly or penally responsible for any acts they may or may not commit in consequence. (This does not mean that the Living Will may break any laws, or that they would need to follow its orders if it is contradictory or futile).
• To provide for an eventual central registry of Living Wills to ensure access by medical professionals to the subject’s instructions.

For the full list find their discussion document here.

Is this ethical?

Any medical professional’s commitment is towards the saving of their patient’s life and general well-being, which has been aided by continuous advancements in medicine and medical treatment. This has helped in not only giving more hopeful treatment to patients, but this commitment has also prolonged countless lives.

However, if there is no reasonable hope of recovery for the patient, when does this artificial prolonging of life stop being beneficial? How can a doctor determine if the patient’s wishes are still valid if they are unable to make decisions on their own? And how/when can that doctor decide whether to stop the treatments outright. In the case of minimal chances of recovery, should doctors continue attempts to cure them; while distressing the patient? With a legal framework dictating a Living Will, it would allow these ethical decisions to be done by the person they’re affecting, rather than those around them.

What is the church’s view on Living Wills?

Since the topic of religion and morality comes up with issues such as this, and many medical professionals are practitioners/believers of the Catholic faith, how is the enabling of Living Wills seen in the eyes of the church?

For the last few years, the Vatican has seen advances in technology able to artificially delay death to almost extreme lengths, as well as the push towards the legalisation of voluntary euthanasia for the most vulnerable. In face of these challenges, it was determined through a letter, ‘Samaritus Bonus’, released in 2020, that it:

“…respects the will of the dying person as expressed in advanced directives for treatment, excluding however every act of a euthanistic or suicidal nature.”

What this means is that the refusal of aggressive medical treatments (meaning treatments that go beyond basic care and have little hope of success), is not morally unjust or equivalent to euthanasia or suicide. This is because it views it as a:

“…right to die with the greatest possible serenity and with one’s proper human and Christian dignity intact.”

It is, therefore, according to the Catholic church, a right for the patient to provide “advance directives”, e.g., a Living Will, on whether or not “advanced medical treatments” should be provided by their doctors.

What issues need to be addressed?

There are a multitude of other matters that need to be discussed before these proposals are to be put into law, such as the following questions:

• Who/what is capable of assessing whether the patient is of sound mind to provide the Living Will?
• What constitutes as “advanced medical treatment”?
• Where is the line drawn between refusing certain treatments or medicines, and sabotaging one’s chances of recovery?
• What happens if family members object to the Living Will written by the incapacitated patient?
• Would there be a limited time from when a version of the Living Will was written to be put into effect?
• Would there be a stipulated amount of time between revisions of the Living Will?
• Would persons who write their Living Will be educated enough about certain therapies? And would this knowledge affect their decision?
• If a new treatment that was unavailable during the writing of the Living Will greatly aids the patient, would this treatment be provided, or would the presiding doctors have to stick to the Living Will?

While it has its issues, a legally binding Living Will is generally a benefit to all those involved. Knowing what the patient wants, even after they are no longer able to determine it for themselves, will give the medical professionals assurance that they are always working in the wishes of the patient they swore to aid. It would give the family the peace of mind to know that what the doctors are doing does not fall under what their family member desired to not happen to their body, it would reduce unnecessary pressures, and finally, it would allow the person themselves to always have control over their own care and wellbeing, regardless of the state they could potentially end up in in the future.

Most, but not all, of the talking points and information listed above were taken from a discussion paper released by Humanist Malta. The full paper can be found here.

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The views expressed in this article are those of the author and are not reflective of ‘A Bird’s Eye View’ as a whole.