The Ministry of Health in the Cayman Islands is seeking feedback on draft legislation, entitled the Health Care Decisions Bill, that will give legal status to an individual’s written directions as to how they are cared for at the end of their lives; such written directions are called “advance healthcare directives” in the draft bill but are also commonly referred to as “living wills.”
The pace of advancement in medical science, in parallel with improvements in the quality of nutrition and housing over the last 50 years means that we are living longer than ever before. Perhaps not surprisingly, people are giving greater thought to the means by which they can plan in advance for the end of their lives. This does not only mean making a will to deal with the distribution of their property after they die. This can also mean making plans for how they would like to be cared for in the event that they no longer have the necessary capacity to make those decisions at the end of their lives.
Even as greater numbers of people suffer from mental health issues, it is clear that problems like dementia and Alzheimer’s are not confined to the elderly; increasing numbers are afflicted with problems associated with drug or alcohol abuse. Unexpected illness and accidents can befall anyone. Any of these issues may affect an individual’s capacity to make decisions about health and welfare at the time they most need to be able to do so.
The concept of an advance healthcare directive has been debated by medical professionals, lawyers, the courts and legislators for decades in the western world, particularly in the context of patients who are severely afflicted by illness or injury and have refused potentially life-saving medical treatment. California was the first U.S. state to introduce living wills legislation in 19761 and most states in the U.S. now have some form of it. The concept was first given statutory force in England and Wales in the Mental Capacity Act 2005 (MCA).
Hand in hand with the changing demographic has come a sea change in the way that society views the way that decisions are made by or on behalf of those affected by mental capacity issues. Far greater emphasis has been placed on the involvement, as well as protection, of the patient in decision making wherever possible, and the “mental gymnastics”2 involved in imagining the patient in a “lucid interval” have been replaced with a more straightforward “best interests” test3.
Although there have not yet been any equivalent statutory changes in the Cayman Islands, it is clear from cases like in Re D that the court here will apply the “best interests” test where the court considers it appropriate to do so. In that case, the chief justice found that the “wide ambit” of the Cayman Islands’ Mental Health Law was “entirely accommodating” of the best interests test. As can be seen from the draft bill, there are now other innovations which are under consideration in the Cayman Islands.
There is not yet an equivalent to the Lasting Power of Attorney (LPA) in Cayman Islands law. LPAs in England and Wales are divided into two categories: one is health and welfare, the other property and personal finances. The LPA for health and welfare can only be used once an individual has lost capacity. The LPA, broadly, vests authority in a third party to take decisions on an individual’s behalf, once the individual no longer has the capacity to make those decisions himself. The third party, who is called an “attorney” is duty bound to act in the patient’s best interests. Similarly, powers of attorney which endure beyond the incapacity of the donor are valid under the laws of the U.S. and Canada.
In the Cayman Islands, the crucial difference is that the validity of a power of attorney does not survive the incapacity of the donor of the power. Nevertheless, it is clear that health professionals are well aware of the difficulties faced by families and caregivers, as well as medical personnel, when faced with a family member who is unable to make decisions for himself or whose end of life healthcare wishes cannot be respected.
Advance healthcare directives can set out particular instructions about the nature and extent of life saving medical treatment that the individual wishes to have, including the point at which the individual wishes to have that medical treatment withdrawn. They can reflect religious or spiritual beliefs, as well as other important aspects of an individual’s life; for example, they can make clear what sort of food is preferred, whether the person has been a lifelong vegan or vegetarian, they can set out whether they have objections to certain types of medical treatment.
Under the draft bill, as in the MCA, an advance directive about the refusal or withdrawal of medical treatment that sustains life must be in writing and in the form scheduled to the draft bill. Interestingly the draft bill also provides for a “proxy” who can be appointed in an advance healthcare directive to take a decision about healthcare on behalf of a patient who has lost capacity. Their decision must reflect the decision that the patient would have made in the circumstances and in the absence of specific instructions or views from the patient, must be consistent with what the proxy believes the patient would have decided. In other words, the draft bill provides for a form of power of attorney over medical care which endures beyond incapacity.
Under the draft bill, an individual is not able to direct a refusal of basic palliative care and pain relief, nor is he able to ask for euthanasia or assistance in taking his own life, both of which would be against the law in the Cayman Islands. Examples of life-sustaining treatment would include being given food and drink via tube if the individual is otherwise unable to eat or drink, the provision of CPR, or use of a machine to help the patient breathe. Such an advance decision must include a clearly expressed statement that the decision is to apply to a specific treatment even if the patient’s life is at risk. The individual making it must be 18 years of age, have full capacity, and the document must be signed and dated in the presence of two witnesses who must also sign and date it. One of the two witnesses must be a doctor who, before witnessing the directive, must take reasonable steps to satisfy himself that the individual has mental capacity to make it, in other words, that the individual understands the nature and effect of the decisions he is making.
It is also notable that those who drafted the bill are aware of the requirement for recognition by health professionals here of living wills or advance directives executed in jurisdictions other than the Cayman Islands. Section 50 of the draft bill deals with this expressly, providing recognition of such documents from jurisdictions including the United Kingdom, Jamaica, Canada and the U.S., amongst others.
Under the draft bill, the question of end-of-life healthcare will remain a decision for medical professionals to take in the best interests of the patient, except if there is a valid advance healthcare directive expressing the denial of care in those circumstances or if there is a proxy decision to do so. The wishes of the patient as expressed in the directive will be paramount. It will be the individual’s responsibility to ensure that friends, family and doctors know of the advance directive and where to find the document if required. If a copy is provided to a GP after execution, then it can be retained as part of the individual’s health record.
An individual can revoke or amend an advance decision at any time while they have capacity to do so. It is first and foremost for the medical professionals treating the patient to determine whether he no longer has the capacity to consent or refuse treatment. Once the patient no longer has capacity to do so, a directive will only be effective if it clearly applies to the circumstances in which the patient finds himself. If there are grounds to suggest that the patient may have changed his mind, the medical practitioner can seek guidance from the hospital Ethics Committee, the establishment of which is provided for at part 6 of the draft bill.
It is highly recommended by practitioners in jurisdictions where advance healthcare directives have been operative for some time, that the individual’s wishes are discussed with a medical professional before signing. It is also recommended that advance directives should be kept under review and re-signed and re-dated after each review and indeed the MCA provides for this. Individual circumstances, including state of health and religious or spiritual beliefs change and regularly discussing the decision with your doctor will reassure your doctor that you have not changed your mind about it.
The principal advantage of an advance healthcare directive has been acknowledged to be the protection of an individual’s autonomy. This is a great comfort to patients and their families, providing an element of control over medical treatment at the end of their lives which helps families cope with what might otherwise be a very distressing decision-making process.
Another benefit is that it opens and maintains a helpful dialogue between the patient and medical professionals about his healthcare wishes and preferences. This helps avoid difficulties and occasionally disputes among family members and with doctors at the end of a patient’s life. The authors of the draft bill are to be commended for bringing this proposal forward for consideration.