Sherry-Ann McGregor, Contributor
MCGREGOR
WHILE WE are on the subject of wills, it may be useful to consider living wills. Distinction between wills and living wills
A will may be defined as a testamentary instrument or an expression by a person of wishes he intends to take effect only at the time of his death. In accepting this definition, we must agree that a living will is not truly a will, because a living will, which is called an advance statement in some jurisdictions, may be defined as a written statement setting out one's wishes in respect of medical treatment one may require when they have lost the ability to communicate a decision regarding the administration of artificial life support or other life-preserving procedures.
TERRI SCHIAVO NEVER MADE A CHOICE
Do you remember Terri Schiavo? She was plunged into a vegetative state after suffering a heart attack in 1990. She remained on artificial life support for 15 years until March 18, 2005 when, in keeping with an order of the Florida Circuit Court, her feeding tube was removed.
The entire world sat at Terri's bedside while her husband and parents fought the legal battle to determine whether or not her feeding tube should be removed. Many debates emerged as the story unfolded. Issues revolved around Terri's right to life, euthanasia (or mercy killing) and assisted suicides. Perhaps the most compelling question was, "What would Terri have wanted?" Would she have desired to remain on artificial life-sustaining measures, or would she have wanted to have the feeding tube removed?
Unfortunately, despite the fact that legislation in Florida would have permitted Terri to prepare a living will, she had not done so. In effect, her loved ones faced the dilemma of having to make the decision for her. While it is not certain that her wishes would have been adhered to if she had written a living will, at least there would be some indication of what she felt about the matter.
The case, which rose to prominence in the months prior to her death, was actually in progress for well over 12 years. In fact, the final removal of the feeding tube, which led to her death, was the third such act over the years. After the court finally ruled in favour of Terri's husband, he faced the wrath of those who believed that his decision to remove the tubes was actuated by his own selfish desire to move on with his life. Others pondered whether she had suffered during that period between the removal of the feeding tubes and eventual, inevitable death. Was she really brain-dead? Had all her senses become numb?
HOW DOES THE LAW OPERATE?
Many countries have statutory frameworks which make living wills binding. For example, in England, doctors are required to respect a patient's refusal of medical treatment as set out in a living will or advance statement. Such living wills may state the name of a person who may be called upon to make decisions concerning treatment of a patient, how the patient would wish to spend his last days and whether he would prefer to die in hospital or at home. These matters were first set out in a code, which eventually led to the enactment of the Mental Capacity Act, 2005.
NO LEGISLATION
In Jamaica, there is no legislation governing living wills. It is, therefore, my view that we must look to the English common law for guidance. According to the cases of Airedale NHS Trust and AK (Adult Patient), a patient's refusal to consent to medical treatment had to be observed where that patient was an adult of full capacity. For this reason, a living will should be observed by the patient's doctors, although care must be taken to ensure that the statement set out in the living will continued to be the wish of that patient. Care should also be taken to ensure that the patient had full mental capacity at the time the living will was made.
The decision will remain a very difficult one, because there are legal, moral, ethical and religious issues to contemplate. Moreover, the width of the framework within which such wills will operate must be determined. For example, one may ask whether an oral living will may be enforced. As far as I am concerned, it seems hardly likely that any living will will be given effect without the court's intervention. In that case, is anyone prepared to fight for 12 years as in the Terri Schiavo case?
Sherry-Ann McGregor is partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
