Living wills play a crucial role in the self-determination of patients in Switzerland. They enable people of full age and capacity to take their personal wishes and ideas into account in medical decisions and ensure that these are respected even if they are no longer able to express their will themselves. However, the institute of living wills is in a state of tension between the autonomy of the person capable of making a decision and the protection of the future patient who is incapable of making a decision, who is ill or who has suffered an accident, against his or her instructions, which may have been made uninformed or hastily, usually in a state of good health.
What is a living will and what purpose does it serve?
Basically, a living will is a written document in which a person specifies in advance which medical treatments he or she wishes or refuses in the event that he or she is no longer able to make these decisions himself or herself due to accident, illness or age. The purpose of such an order is to preserve the patient’s autonomy and self-determination and to ensure that his or her personal wishes are respected. The revised adult protection law, which has been in force since 2013, expressly includes the legal institution of the living will. The introduction of the institute of living wills resulted from the increasingly topical question in modern medicine as to how far the medical obligation to treat goes and whether a terminally ill person can refuse the use of life-sustaining measures or even demand the active termination of life by the physician. The term “living will” originates from the Anglo-American world, where corresponding documents are referred to as “living wills” or “directives to physicians”.
Legal basis in Switzerland
Today, living wills are regulated indiscriminately for the whole of Switzerland (ZGB Art. 370 – 373). Since the questions arising in connection with the living will are complex and of great significance, it was in the interest of the population and medical personnel to regulate the validity requirements and binding nature uniformly and transparently throughout Switzerland, and earlier, sporadically existing cantonal regulations were repealed with the introduction of the new Adult Protection Act. The provisions of CC Art. 370 – 373 set out the conditions for the validity of a disposition. For example, the person must be capable of judgment and the order must be in writing, dated and signed by the person’s own hand. In addition, the directive should be reviewed periodically (i.e., every 2-5 years) and updated as necessary to ensure that it reflects the patient’s current circumstances and wishes. It is the responsibility of the person making a living will to bring it to the attention of the possible addressees. In this context, the place where the living will is kept plays an essential role. With the increasing use of the electronic health record, depositing the living will in the EPD is highly recommended. For this purpose, a notice in the personal mobile phone or the deposit of a notice card with the indication of the deposit location in the wallet should be part of the standard of personal precaution.
Content and scope of living wills
A living will can regulate various aspects, such as life-prolonging measures, pain therapy, artificial nutrition and consent or refusal to organ donation. It is possible to give specific instructions and to set general values. It is important that the decree is formulated clearly and understandably in order to avoid misunderstandings. Various patient organizations and professional organizations such as FMH in collaboration with the Swiss Academy of Medical Sciences (SAMS) have developed templates for an advance directive. However, since the living will is a complex and highly personal legal document that may be subject to interpretation, it is advisable to seek personal advice from a lawyer who is familiar with medical law or from a physician who is familiar with medical law. We’re happy to help you draft your living will – schedule an initial consultation here.
Implementation and enforcement of living wills – critical aspects and problems
In the event of an emergency, the living will is implemented by the attending physicians. However, in order for this to come into play at all, it is important that the order is easily accessible and presented to physicians in a timely manner. The attending physicians are obliged to respect the order, provided that it complies with the legal requirements. However, despite specific, legal principles and the importance of living wills, various problems can arise. There may be circumstances and locations where physicians may not be adequately informed about the legal requirements. Or there may be situations where concerns arise about the implementation of certain instructions – more often because of ethical issues, such as the tension between the right to self-determination and the protection of life mentioned at the outset. It is therefore advisable to designate a natural person of trust to represent the person making the living will vis-à-vis the medical staff in the event of his or her incapacity and to make decisions on his or her behalf.
If no such representation has been established, the attending physicians are required, in the event of ambiguities and possible discrepancies, to take into account not only the document itself, but also all other facts and oral statements that can explain the patient’s values and attitudes in more detail.
Conclusion
Living wills are an important instrument also in Switzerland to ensure the self-determination of patients in. They enable people to express their personal values regarding medical interventions in the event of incapacity and to specify in detail which medical interventions they agree or disagree with in the event of loss of capacity. If you have any questions about living wills, we will be happy to help you. Arrange a consultation appointment now.