Garth Rattray | Need for advance directive (‘living will’) legislation

First, following last week’s ‘From Sagicor to Saggy Core’, Sagicor Jamaica Bank hierarchy acted with alacrity to begin the process of improved service to their customers.

The topic for this week is our need for advance directive legislation. Everybody will transition sooner or later. Ageing highlights that inevitability and brings a slew of unavoidable physical and [possibly] mental problems. Most people will not just drop dead; to a lesser or greater extent, they will become dependent on others to care for them, manage their affairs, and oversee their final wishes.

Most of us would like to have a say or appoint someone to act on our behalf regarding how we are treated during our waning time on this planet. For example, some would not want to be kept alive by artificial means. They would not want the emotions of others to dictate how long they linger towards the end. Another aspect of your care during that time of your life is how you are able to access and make use of your earthly possessions while you are still alive.

A Will is, “a document that contains your direct wishes for your property and assets, as well as the care of your dependents” after your transition. On the other hand, a ‘Living Will’ is your advance directive for healthcare. This legal document is “a written statement detailing a person’s desires regarding future medical treatment in circumstances in which they are no longer able to express informed consent, especially an advance directive”. It allows you to choose your end-of-life preferences for medical power of attorney, advance healthcare directive, and psychiatric advance directives.

RIGHT OF AN INDIVIDUAL

Some jurisdictions recognise the [legal] right of an individual to directly or indirectly (through a healthcare agent) “(1) control all aspects of his or her personal care and medical treatment, (2) insist upon medical treatment, (3) decline medical treatment, or (4) direct that medical treatment be withdrawn”. Of course, those directives/wishes must conform with the existing legislations, and the ethical medical standards within that jurisdiction.

In brief, the legally binding advance directive (‘Living Will’) outlines in detail the following aspects – the voluntary nature of the document, the role of the attending (primary) physician and any other healthcare provider, the status of the declarant, the possibility of a need for a durable power of attorney, and an outline of the parameters of ‘healthcare’ treatment.

Such a document speaks to your healthcare agent, back up healthcare agent, the detailed general powers of your healthcare agent, the outlining of the powers of your healthcare agent after death, treatment preferences, [your] guardianship, if necessary, when the document becomes effective, and this is followed by your signature and the signatures of 2 witnesses.

The appointed healthcare agent and back up healthcare agent are empowered to make decisions related to your healthcare facility, the all-important definition of ‘life-sustaining procedures’ consent, and refusal or withdrawal of care. They may also be empowered to decide on autopsy, anatomical donation, and final disposal.

VERBALLY STATE

I know of many people who verbally state that they do not want to be [artificially] kept alive if they have a terminal condition and linger near death, or if they were in a [vegetative] state of permanent unconsciousness. They do not want any ‘heroics’… any overexuberant attempts at sustaining them with invasive procedures, surgery, or with medications, machines, and tubes here, there, and everywhere.

Some may be familiar with the famous ‘NTBR’ (not to be resuscitated), or ‘DNR’ (do not resuscitate) directives. Those terms apply to patients in a hospital setting. They are conspicuously noted in the patient files and (sometimes) at the foot of the hospital bed. They are opt-out statements indicating that, in the event of a catastrophic occurrence, like a loss of consciousness due to a heart attack resulting in heart failure, other things like stroke, respiratory failure, or circulatory failure, there is to be no intervention, the patient is to be allowed to die naturally. Otherwise, the medical staff will undertake resuscitative attempts for 30 to 45 minutes, or possibly longer. Sometimes the decision is taken by the relatives in consultation with the medical staff. But some people want to make that decision on their own. A ‘Living Will’ would facilitate this.

Jamaica has no provision akin to a Living Will. People may assign the power of attorney to trusted individuals, giving them the authority to act on their behalf in specified or all legal or financial matters. However, decisions regarding end-of-life, advance healthcare directives may not be covered.

In the absence of an advance directive (Living Will), the best that we can do is to write a letter of wishes, sign it, have it witnessed, and then hope that the people who end up caring for us will adhere to them. Since it is not legally binding, there is absolutely no guarantee of anything. In fact, in Jamaica, if you request to die with dignity, without any [prolonging] artificial life support, should your physical condition be determined to be irredeemable, your kin can choose to have you hooked up to all kinds of devices indefinitely.

Jamaicans are living longer, our ‘ageing population’ is growing. More and more citizens are being faced with end-of-life choices and outlining directives. I hope that our parliamentarians will see it fit to formulate legislation for an advance directive (Living Will) in the near future.

Garth A. Rattray is a medical doctor with a family practice. Send feedback to columns@gleanerjm.com and garthrattray@gmail.com