The Patient's Will - Why and for Whom? Forms, Formalisation, and Implementation Issues

• Author: Maret Kruus - Rainis Int - Ants Nõmper
• Pages: 158-169

158 JURIDICA INTERNATIONAL 27/2018

Maret Kruus Rainis Int Ants Nõmper

Attorney-at-Law Notary public in Tallinn Dr. iur. , Managing partner

Law Off‌i ce NOVE Law Off‌i ce EllexRaidla

The Patient’s Will –

Why and for Whom?

Forms, Formalisation, and Implementation Issues

1. Introduction

Approaches to death and dying vary quite a bit. On one extreme of the scale is the view that the ending of

a life is something unnatural and undesirable and that anything postponing it should be promoted. In con-

trast, there is the belief that death is natural, which is strongly supported today through arguments empha-

sising a decent standard of living, a dignif‌i ed death, and personal autonomy.*1 Depending on the approach

that people subscribe to, attitudes towards dying may be radically di erent. Some would do anything to

prolong life, no matter how much pain and su ering it causes, while others prefer to die and refuse even the

simplest remedies that could keep them alive, such as antibiotics for bacterial inf‌l ammation of the lungs.*2

In the past, prolongation or non-prolongation of someone’s life at the individual’s request was not a topic

of much importance, since the level of medicine did not allow such prolongation anyway. However, the high

speed of medical advancement has signif‌i cantly widened the spectrum of possibilities for postponing death.

In intensive care, technological replacement of the functioning of organs and organ systems with respiratory

devices, circulation pumps, and dialysis-based artif‌i cial kidney apparatuses, inter alia, has become possi-

ble.*3 Likewise, life can be prolonged by drugs, resuscitation, and radiation-therapy procedures.*4 On the

other hand, medical intervention may sometimes make the end of life or even one’s life itself very miserable

and painful and, accordingly, not desirable for the person concerned.*5

If a patient does decide that he or she does not wish to receive health-care services and would prefer to

die, the health-care service provider is not allowed to provide health-care services to that patient, under the

principle of personal autonomy. In this case, the patient’s wishes need to be respected even at such time as

the patient is unable to express them – for instance, when he or she is unconscious.

For situations wherein a patient is incapable of expressing his or her intentions, many countries employ

an instrument called a patient’s will, also known as a living will or, more generally, a patient’s directive (the

German concept is Patientenverfügung) or an advance directive (health-care directive). The term ’patient’s

will’ will be used throughout this article. A patient’s will is a declaration (usually in writing) on what kind

 A. Soosaar. Meditsiinieetika [’Medical Ethics’]. nd, revised and supplemented edition. Tartu Ülikooli Kirjastus  (in

Estonian), p. .

 J.R. Williams. Medical Ethics Manual. rd ed. World Medical Association , pp. , .

 A. Soosaar (see Note ), p. .

 J.R. Williams (see Note ), p. .

 A. Soosaar (see Note ), p. .

https://doi.org/10.12697/JI.2018.27.14