The freedom to accept or refuse medical treatment is easy when you are well and able to communicate your wishes personally. However, during a severe illness, you may not be able to communicate your directions for medical treatment at the very time when critical decisions must be made.
In those circumstances, a document called a Living Will can minimise our suffering where there is no prospect of recovery – and can also spare our relatives and medical attendants from having to make difficult medical decisions on our behalf.
A Living Will can relieve family members of the guilt that can sometimes accompany the making of a difficult decision by stipulating what kind of medical treatment we want or don't want, how we want people to treat us, and what we want our loved ones to know.
The document also appoints a healthcare proxy to speak for us should we be unable to personally communicate our wishes to a physician.
The legal status of Living Wills has not yet been tested in Bermuda's courts but it is generally thought that Living Wills will be recognised by the Bermuda Supreme Court, if tested.
Living Wills were recognised in the United Kingdom
in 1993, the court holding that "the principle of the sanctity of human life must yield to the principle of self-determination".
There are no formal requirements for the creation or revocation of a Living Will -- and it can be revoked orally at any time. In a celebrated 2003 UK case, it was held that the statement "I don't want to die!" -- where the patient would have died without a transfusion -- was sufficient to revoke a previously written Living Will that refused the use of blood products.
It has long been accepted law that physicians must abide by the wishes of a patient, if the patient is conscious and of sound mind. Not to do so might result in a physician being guilty of both a tort (a civil wrong) and the crime of serious or common assault. Where the patient is a minor, the physician should look to the parents for any necessary consent. It has also been recognised that a patient (which includes a minor represented by his parents) may refuse treatment, even when to do so will result in the patient's death.
However, an adult patient who is mentally and physically capable of exercising a choice cannot insist on a non-recommended treatment being provided against the physician's professional judgment. This has the desirable result that our choice of treatment is, in some measure, a joint decision of the physician and us, or our proxy.
Physicians would be wise to respect our instructions set out in a Living Will and would be at risk if they were to knowingly ignore them. Where a Living Will exists, the present state of the law leads to the logical conclusion that the directions given by us will supersede the physician's duty to act in what the physician considers to be our best medical interest.
Should you be admitted to hospital, the medical staff come under a positive common law duty to care for you and a fundamental aspect of their duty is to take reasonable steps to keep you alive. This includes providing you with artificial nutrition and hydration or other life-prolonging treatment; however, this duty does not apply where you, as a competent patient, refuse such treatment either verbally or by way of your Living Will.
A Living Will only comes into play if you are deemed incompetent (i.e. unconscious, brain damaged or otherwise mentally impaired). The medical directives contained in the Living Will may be changed at any time up until then.
You should provide your physician (GP) with a copy of your Living Will and either make it available to your immediate family or at least inform them of its existence and where they may locate it during a medical emergency.
You should also discuss your Living Will with your physician before completing it, as your wishes usually will reflect your personal, family and religious views. Your physician will be able to guide and assist you in making your medical choices and decisions.
Finally, you would be well-advised to have copies of your Living Will readily available in the event you are admitted to a hospital in Bermuda or abroad. A copy of your Living Will can be given to the admissions department for inclusion with your hospital admission documents and become part of the hospital's records for ease of reference during your hospital stay.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.