Nigeria: Living Will And Informed Medical Consent In Nigeria

1. BACKGROUND

It is common knowledge that Wills are testamentary and come into operation only after the death of the testator. Thus, Wills allow the testator to give binding instructions despite the supreme finality of death in terms of the testator's autonomy. Meanwhile, death is barely the only factor that could deprive an individual of autonomy. Highly incapacitating and terminal illnesses, and being in a medical vegetative state may also deprive several persons of autonomy. This contrast becomes more legally interesting considering that such incapacitated persons, unlike deceased ones, are still alive and seised of their fundamental human right to liberty and self-determination.¹

In such dire situations, the close relatives and/or friends of such persons usually take decisions on choice of medical treatments and procedures. Unfortunately, however, unlike the case of a valid Will, there is no certainty that the decisions of such close relatives or friends would genuinely and completely reflect the patient's wishes. Could there be innovative ways to take advantage of existing Nigerian laws to achieve certainty on this subject?

This is where the concept of a "Living Will" comes in. This article examines the concept of Living Wills in light of extant Nigerian laws and recommends the execution of Living Wills as a crucial part of estate planning, management, and succession.

The United States of America, England and Wales account for jurisdictions where Living Wills are valid, binding, and enforceable.² The term Living Will is an oxymoron which describes a "Will" that comes into operation before the death of the "testator".

The drastic improvements in medical science and technology that characterized the 19th Century also had strapped to its back, a conflict between two important sides to a medical treatment transaction. Doctors developed the ability to now keep the body alive without regard to a functioning brain. In fact, the traditional definition of death was further obfuscated.

Whilst families of patients (on one side) may desire their loved one who is brain dead to be allowed to pass on with dignity as there is no realistic chance that they would ever regain consciousness naturally, healthcare providers (the other side) believe it was their moral and professional obligation to keep patients alive as much as possible, whether by natural or artificial means.

The popular United States' case of Karen Ann Quinlan³ proves historically important to this conflict. Twenty-two-year-old Karen Quinlan went comatose, reportedly from the influence of alcohol and certain drugs, and was brought into the emergency room of Newton Memorial Hospital in Newton, New Jersey, unconscious (later transferred to Saint Clare's Hospital, with a larger medical facility in the township of Denville). After stabilizing her, they fed her with a nasogastric tube to enable her breathe through a respirator. Eventually, her health deteriorated, leading her into a permanent vegetative state.

In reaction, Karen's father, Joseph Quinlan in 1976 filed an application before the New Jersey Superior Court seeking an order of guardianship and authorization to terminate the use of life-supporting apparatus and "all extraordinary medical procedures" on his daughter. It is noteworthy that in this same year, the state of California passed the Natural Death Act, the first Living Will law in the United States.

The trial court (Superior Court) denied Mr. Quinlan's application, holding that the attending physicians were entitled to make such decision in consonance with prevailing medical standards. The trial court also rejected the argument that there is a legal distinction between ordinary and extraordinary means to sustain life.

Dissatisfied, Mr. Quinlan appealed to the Supreme Court of New Jersey, whilst the Attorney General of New Jersey cross-appealed. The Supreme Court reversed the trial court's decision and held inter alia, that a decision to permit or authorize the discontinuance of one's vegetative existence by natural forces was a crucial aspect of one's right to privacy which is exercisable by a guardian. The Supreme Court also recommended that the concurrence of the Hospital Ethics Committee be sought (alongside that of the guardian and the patient's family).

Overtime however, attention shifted from the ethics committee to patients and care-providers in terms of the appropriate decision-making authority in a medical treatment transaction. This shift further strengthened the recognition of Living Wills as a crucial tool in estate planning.

Basically, a Living Will 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 or instructions due to terminal illness or permanent unconsciousness. In an ideal sense, a Living Will may be described as the application of advance and detailed knowledge and information about medical treatment preferences and persons who can reliably act as healthcare representatives.

It is important to note that Living Wills are different from Wills properly so-called in that while Living Wills may come into operation where a patient is incapacitated but alive, Wills come into effect upon the death of the testator.

2. THE NIGERIAN SCENARIO

There is a dearth of statutory provisions on medical consent in Nigeria. Nonetheless, the informed consent of the patient to medical treatment is paramount.⁴ In the absence of any binding document or instrument showing a patient's informed consent on medical treatment preferences, the decision of the physician on the basis of expert knowledge arises. The physicians are deemed to be seised of the requisite professional training to unilaterally take the best decisions for patients, and where such physicians are unable to obtain the patient's consent, the remedies available to the patient is uncertain and limited.

There is also no statutory provision in Nigeria specifically on types or categories of consent in respect of medical or clinical purposes. In practice though, consent may be express or implied. It is express where a patient, by oral or written medium, sanctions a medical treatment or procedure. Express consent (preferably written, and executed in the presence of a witness) is treated with overarching importance for procedures with high risk such as surgeries involving the administration of anesthetic, procedure involving extensive gynecological examinations, and major diagnostic procedure cases.⁵ Implied consent is gleaned from the demeanor or disposition of a patient, for instance, where a patient stretches out his hand for his blood sample to be taken for a test. As part of implied consent, extra verbal consent may be required where the purport of a seemingly implied consent is in doubt. Instances involving the examination of sensitive body parts feature here.

From a legal standpoint, both patients and their physicians are limited in their abilities to donate consent and/or take certain decisions. For instance, section 311 of the Criminal Code Act⁶ provides:

Common medically related acts or omissions which hasten death include mercy killings, euthanasia, or intentional acceleration of the death of a person with a terminal medical condition. In essence, the ability of physicians and/or patients to take medical decisions is limited by law.

The foregoing provides a hint of the Nigerian legal situation. Living Wills are neither in vogue nor expressly recognized under any Nigerian legal framework. Nonetheless, Living Wills may be properly executed and enforceable by persons, especially where such persons are advised by competent legal practitioners to contain clauses that do not offend extant laws.

From legal experience, Living Wills may be in the forms of Durable Power of Attorney (DPA) or Medical Power of Attorney, wherein trusted person(s) are named and empowered by an individual to take medical decisions in situations of incapacitation by chronic illness (terminal or otherwise) and/or temporary or permanent unconsciousness.

One crucial aspect of legal guidance to the execution of Living Wills is that Nigerian laws provide for a right to life and a right to self-determination, but do not guarantee the "right to die". In fact, it is legally impermissible to die or have one's death accelerated by artificial means, irrespective of moral or religious considerations.

The non-existent "right to die" may be distinguished from the fundamental right to privacy and self-determination which may feature refusal of particular medical treatments or procedures. Whilst the former is seen as suicide – a deliberate act or omission with the motive of ending one's life, the latter may be considered as a choice of how one chooses to live. This distinction finds approval in the England and Wales decision in Airedale NHS Trust v. Bland⁷ where the court held that "if the patient is capable of making a decision on whether to permit treatment and decide not to permit it, his choice must be obeyed, even if on any objective view it is contrary to his best interest".

3. CONCLUSION

The foregoing explanations clearly reveal that Living Wills are an important aspect of estate planning and succession. It has also been established that though Living Wills are not expressly recognized by any extant Nigerian law, the law impliedly permits the execution and bindingness of these Wills to the extent that they do not wrestle with the constitutionally guaranteed right to life.

We live in dire and critical times characterized by uncertainties. It is undeniably important for legal and medical practitioners to continuously enlighten and orient actual and potential clients/patients on the need to execute both Wills strictly so-called, and Living Wills/advance medical directions. By doing this, individuals delete the ugly possibilities of breaching their cherished personal moral, religious, cultural, or intellectual beliefs or ideals.

In addition, we foresee that enlightenment on Living Wills would occasion deeper insights on proper medical treatment options. Therefore, medical doctors must progressively improve their knowledge and skills in line with established and increasingly improving global best practices regarding medical treatments. This is because a medical practitioner or hospital may be held responsible and liable for the deteriorating health or death of a patient who is refused proper medical treatment options which have been established to be of the highest standards.

For instance, if a patient's Living Will expressly provide that Chloroquine medication should not be administered to them (possibly due to allergies or other personal reasons), medical practitioners and healthcare organisations must be ready to provide qualitative alternative medical treatment options either as provided in the patient's Living Will or as professionalism dictates.

Where such alternatives are reasonably unavailable, the patient or their appointed representative(s) or attorney(s) must take decisions in line with the patient's wish and more importantly, in the genuine interest of the patient's health.

Footnotes

1. Section 35 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

2. See the Mental Capacity Act, 2005 (England and Wales); and the Medical Consent and Natural Death Act, Chapter 45 Title 39 (Health and Safety) of the Idaho Statutes. In addition to Living Wills, section 39-4512A makes provision for a Physician Orders for Scope of Treatment (POST) – a document specifying a patient's instructions regarding the scope of medical treatment.

3. In Re Quinlan, 70 N.J. 10, 355 A.2d 647.

4. Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001) 7 NWLR (Pt. 711) 79.

5. J. A. Dada, Legal Aspect of Medical Practice in Nigeria, (2nd Edition, University of Calabar Press, 2013), p 257.

6. Cap. C38, LFN 2004. See also, section 33 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

7. (1993) 1 All ER 821.

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.