Clarifications Regarding the Living Will

Faced with an incurable disease and/or terminal condition, and unable to express their wishes, a way of communicating their wishes on how they want to spend their last days can be adopted as a “facilitator” for doctors and family members, the latter often emotionally devastated: whether sedated and connected to numerous tubes, in pain or with morphine injections, or simply stating that they do not wish to end their days in a vegetative state.

Since, at times, the religiosity and attachment of family members do not allow for the disconnection of machines or the cessation of palliative treatments, the instrument known as a living will, also called Advance Directives of the Patient’s Will (ADV), was instituted, which is the subject of Resolution 1.995/2012 of the Federal Council of Medicine (1).

Regarding the terminology, some consider the term “will” inappropriate because article 1,857 of the Civil Code (2) stipulates that the declaration of last will should only take place after death, while the “living will” aims to give directives prior to death, which is why it would be more appropriate to name such a document Advance Directives of the Patient’s Will – DAVP, as stated in the aforementioned CFM Resolution No. 1,995/2012.

In any case, it is worth distinguishing between the various forms of “anticipating death” because some are considered crimes in Brazil and, therefore, inadmissible by the Federal Council of Medicine.

Euthanasia, which etymologically means “good death,” is considered homicide in Brazil (3), and involves the assistance of a third party to ‘hasten’ someone’s death, usually with the use of medication or disconnection of life-support equipment.

Orthothanasia consists of ceasing the application of life-prolonging and/or resuscitation procedures, limiting efforts to avoiding causing pain to the patient.

Dysthanasia is the artificial prolongation of life, with the maintenance of life support even when absolutely useless given the irreversibility of the clinical condition, known as “therapeutic obstinacy.”

Assisted suicide consists of providing or assisting the patient with what is necessary (medications, injections) to commit suicide, which differs from palliative sedation where medications are administered to sedate or alleviate the patient’s pain, without hastening death.

It is true that, after the promulgation of the aforementioned Resolution, the Federal Public Prosecutor’s Office of Goiás filed a public civil action (ACP nº 1039-86.2013.4.01.3500) seeking a declaration of unconstitutionality and the suspension of CFM Resolution 1995/2012 on the grounds of “exceeding the limits of regulatory power, affront to legal certainty, exclusion of the family from decisions to which they are entitled, and establishment of an unsuitable instrument for the registration of advance directives of patients’ wishes.” The action was dismissed and is currently under appeal.

The crux of the matter is who has the authority to decide on the dignity of the human person: whether it is the patient who, having lost the capacity to express their will, has left a written or verbal declaration of intent to their family members or to whoever is responsible for them in the event of their temporary or permanent incapacity.

Finally, the living will aims to guarantee the constitutional rights to human dignity, personality, autonomy of will, and freedom to decide on the remainder of life, as well as the consideration of “care as a legal value, it will be necessary that it literally accompanies us until the end of our lives” (4).

In this vein, the judgment of dismissal of the Public Civil Action, valid throughout the national territory, understood that the Resolution does not regulate last will and testament directives only for terminally ill patients or those who opt for orthothanasia, but also for all those incapable of expressing their will, this decision having been based on the principle of autonomy of will, human dignity, and the prohibition of inhuman treatment.

In truth, although the CFM has opened an important path for the adoption of LVADs, since many doctors could, with reason, refuse to comply with the patient’s directives for fear of disciplinary or even judicial sanctions, the fact is that there is a lack of regulation or, at least, the basic premises of the Living Will, which are being complemented by legal professionals.

We can take as a suggestion of premises those in the Natural Death Act of the State of California – USA. This rule requires that it be signed by a person of legal age and capacity, in the presence of two witnesses, and that its effects begin after 14 (fourteen) days from its drafting. It is revocable at any time, and has a limited validity period (approximately 5 years), and the terminal state must be certified by 2 (two) doctors” (5).

The document must be written by a capable and lucid person, that is, with full discernment of the issues involved, where it determines which treatments they accept, or do not accept, to be subjected to in case they cannot express their will, it is recommended that a family member be aware of the existence of this document, which must be given to their doctor and attached to the medical record.

It is important that it has an expiration date because advances in medicine are immeasurable, and directives must be revisited from time to time by the citizen, being obviously a revocable act. It must be registered in a notary’s office, and according to the aforementioned Resolution, it does not generate rights or obligations for the doctor, who cannot be compelled to fulfill the patient’s wishes, since the conduct and procedures to be applied are the exclusive responsibility of the professional who, on the other hand, as imposed by the medical code of ethics, must avoid unnecessary treatments in terminally ill patients, recognizing the importance of palliative care, but always observing and complying with ethical precepts.

In any case, a dignified death requires that care such as hydration and hygiene be maintained, and it is also true that funeral wishes such as cremation and other funeral rites may be included in the same DAVP (Declaration of Aptitude for Prohibition).

(1) http://www.portalmedico.org.br/resolucoes/CFM/2012/1995_2012.pdf(2) Art. 1,857. Every capable person may dispose, by will, of all or part of their property, to take effect after their death.the declaration of last will(3) Euthanasia is admitted or decriminalized as a crime in Uruguay, while in Belgium and the Netherlands it is admitted for minors (http://www1.folha.uol.com.br/mundo/2014/02/1411689-belgica-aprova-eutanasia-para-menores-de-idade.shtml )(4) Coltro, Antônio Carlos Mathias e Oliveira and Telles, Marília Campos. The Dignified Death under the Judicial Perspective in Family and Responsibility – Brazilian Congress of IBDFAM – Porto Alegre: Magister, 2010 and the same authors note that “by instituting the clause of the dignity of the human person as the foundation of the Republic itself (art. 1, III), the Constitution indicates that it defends the guarantee of dignity even in death and not the maintenance of life at any cost, since the same fundamental law guarantees that “no one shall be subjected to torture or to inhuman or degrading treatment” (art. 5, III), a principle that must be understood and interpreted in coherence with the others included therein.”(5) http://portal.cfm.org.br/index.php?option=com_content&view=article&id=23197%3Apacientes-oderao-registrar-em-prontuario-a-quais-procedimentos-querem-ser-submetidos-no-fim-da-vida&catid=3%3A portal&Itemid=1

---

Bibliography 1. Coltro, Antônio Carlos Mathias e Oliveira and Telles, Marília Campos. A Dignified Death from a Judicial Perspective in Family and Responsibility – Brazilian Congress of IBDFAM – Porto Alegre: Magister, 2010; 2. Dadalto, Luciana. Living Will. Rio de Janeiro: Lumen Juris, 2010; 3. Debate “Will and Advance Directives” – 26th Notary Public Meeting; 4. Tartuce, Flávio. The issue of the living or biological will: First reflections in Family Law: new trends and emblematic judgments. Lagrasta Neto, Caetano, Tartuce, Flávio and Simão, José Fernando. São Paulo: Atlas, 2011.