Euthanasia and living wills

The Spanish legal system regulates for the first time the right to active euthanasia, which will coexist with the right to passive euthanasia, with regard to which the living will is a written provision of fundamental importance.

After decades of intense debate in the face of such a highly controversial situation, Organic Law 3/2021, of 24 March, regulating euthanasia was published on 25 March, a law which, according to its explanatory memorandum, aims to provide a systematic, balanced and guaranteed legal response to a sustained demand in today’s society, namely euthanasia, euthanasia being understood as the “deliberate act of ending the life of a person, produced by the express will of the person themselves and with the aim of avoiding suffering”.

The aforementioned law was challenged by the Popular Party and a few days ago the Constitutional Court admitted the appeal, so the Court will have to rule on whether or not the law violates the Spanish Constitution, as the appellants allege.

The law recognises the right of any person who fulfils a series of requirements to what is called “request and receive the benefit of assistance in dying”. The requirements of the law are as follows:

• Be of legal age, capable, conscious, Spanish, legally resident, or, at least, accredit a period of residence in Spanish territory of more than twelve months by means of a certificate of census registration.
• Have written information about your medical process, the different alternatives and possibilities of action. This requirement is fundamental, given that the decision to request the aid in dying benefit must be an autonomous decision and this decision must be absolutely based on knowledge of their medical process, and the person must have been adequately informed by the responsible healthcare team. Furthermore, the medical record must in all cases show that the information has been received and understood by the patient.
• To have made two voluntary requests by a means that can be recorded, with a separation of at least fifteen days between the two requests.
• Suffering from a serious and incurable illness or a serious, chronic and incapacitating condition, certified by the responsible physician. The law itself defines each of these situations.

The law understands as serious and incurable illness exclusively “that which by its nature originates constant and unbearable physical or psychological suffering with no possibility of relief that the person considers tolerable, with a limited life prognosis, in a context of progressive fragility”.

For its part, serious, chronic and disabling illness is defined as “a situation that refers to limitations that directly affect physical autonomy and activities of daily living, in such a way as to make it impossible to fend for oneself, as well as the capacity for expression and relationships, and which are associated with constant and intolerable physical or psychological suffering for the sufferer, with the certainty or high probability that such limitations will persist over time without the possibility of cure or appreciable improvement”.

• The patient must give informed consent prior to receiving the aid in dying, which must be recorded in the patient’s medical record.

However, it should be noted that the requirements relating to the medical process, formal requests and informed consent will not apply as long as (i) the responsible physician certifies that the patient is not in full use of his or her faculties and cannot give free, voluntary and conscious consent and (ii) the patient has signed a living will or similar document in which the provision of assistance in dying has been foreseen.

The living will, as we shall see, stands as a fundamental document in cases where the person is not in a position to exercise his or her right to decide on such important matters as those of his or her own life. Once the first request for assistance in dying has been made, the doctor responsible must, within a maximum period of two days, carry out a process of deliberation with the patient about his or her diagnosis, therapeutic possibilities and expected results, as well as about possible palliative care, making sure that he or she understands the information provided.

This information must also be provided in writing within a maximum of five calendar days. Subsequently, after receiving the second request, the doctor in charge must attend to any doubts that the patient may have. Within 24 hours after the completion of the above deliberation process, the responsible physician must obtain the patient’s decision to continue or to withdraw the request for assistance in dying.

If the requesting patient chooses to continue, the physician must inform the care team and the patient’s relatives, if the patient has so requested. At this point the patient must sign the informed consent form. Once this stage of the procedure has been reached, the responsible physician must go to what the law calls the “consulting physician”, who must verify the patient’s compliance with the requirements of the law by drawing up a report to be included in the patient’s medical record.

In the event that the consultant physician issues an unfavourable report, the patient may appeal to a Guarantee and Evaluation Commission. In the case of a favourable report from the consultant physician, in order to exercise the patient’s right to aid in dying, a final favourable report must be issued by the Guarantee and Evaluation Commission, to be signed by a medical professional and a lawyer. Once the aforementioned formalities have been completed, assistance in dying can be carried out, with the patient indicating how he/she wishes to carry it out if he/she is conscious.

The law foresees two modalities:

1. The direct administration of a substance to the patient by the competent health professional.
2. The prescription or supply to the patient by the health professional of a substance, in such a way that the patient can self-administer it, in order to cause his/her own death.

In the second modality, the medical personnel must watch over and support the patient until the moment of death. As we have seen, the aforementioned law regulates the exercise of the right to decide the moment of death of a person (active euthanasia) in certain circumstances.

Unlike active euthanasia, recognised for the first time in the Spanish legal system in the aforementioned law, passive euthanasia is aimed at abandoning the treatment to which the patient was subjected or withdrawing the instruments that keep a terminal patient alive artificially, avoiding interference in their natural process towards death, without actively provoking it by means of drugs, as occurs in active euthanasia.

Given that active euthanasia was not legalised until the enactment of Organic Law 3/2021, of 24 March, regulating euthanasia, people diagnosed with a serious and incurable illness or a serious, chronic and incapacitating suffering only had the option of promoting passive euthanasia or, in the case of not having the capacity to decide at the time, to make their will effective if it was duly reflected in a document of previous wills or a living will.

Therefore, the living will is also a fundamental instrument for exercising the right to active euthanasia in cases where the patient lacks sufficient capacity and conscience to request it. But apart from active euthanasia, it is also a fundamental instrument so that the patient without capacity at the time it is necessary can duly exercise the right to passive euthanasia and avoid this important decision being passed on to their relatives, with the emotional and psychological burden that this may entail and the conflicts that may arise between the most immediate family members.

The living will is the vehicle for channelling the right to decide in accordance with the conditions and circumstances envisaged by the person concerned, without any other interference and without third parties having to make this important decision. It should be noted that in order to grant a living will it is not required that the person has received a fatal diagnosis, but that in it, any person with sufficient capacity to act, whether healthy or ill, determines the conditions in which he or she does not wish to continue living. The person does not decide how he or she wants to die, but how he or she does not want to live.

Generally, these are situations in which the patient is only kept alive by artificial means, for example by receiving the necessary hydration and nutrition so that his or her vital signs do not decline, or by mechanical ventilation, without which it would not be possible to keep him or her alive. In these cases, the living will has the important function of avoiding shifting the decision-making process to the relatives, as the person concerned expressly foresees the conditions under which he or she does not wish to continue living.

Professional experience tells us that the majority of the population only foresees what we want to do with our assets in the event of our death by executing, as a further formality, the corresponding will before a notary. However, we completely forget the provisions for life itself, most of which often have a far greater impact than purely property matters.

It is certainly not easy to engage in this type of debate, but the lack of foresight will not make the problem disappear, but will generally increase it, causing unpleasant and even conflictive situations, most of the time, between the relatives of the person concerned.

At AddVANTE we have a specialised and highly qualified department within the Legal Department which, from a professional and personal point of view, will advise you and help you to find the best solution to your concerns, not only carrying out inheritance estate planning, but also providing for a series of personal and property protection measures in the event of a possible de facto or de jure incapacity or impossibility to ensure that the will of the interested party is duly complied with.