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Europe seeks consensus over 'living wills'

The question whether a common European position on advance directives, or "living wills" is ethically required and practically feasible was discussed at a recent workshop organised by the European Science Foundation (ESF). Just as a conventional will allows people to specify how they would like their property to be distributed after their death, so a living will is supposed to determine what medical treatment people would like to receive in the event of illness when they are still alive but of unfit mind to decide at the time. This is an extension of the basic human right across all of Europe that people can consent to or refuse medical treatment at any time.

Not all European countries yet have national legislation covering advance directives, with some such as Germany and Switzerland currently conducting heated debates over the subject. Even in countries that do have such legislation, advance directives are open to very different interpretations and their application differs widely across Europe. This is the case not just for the highly topical matters of euthanasia and assisted suicide, but also for administration of emergency treatments such as artificial ventilation and intravenous hydration (drips). The ESF workshop reflected this divergence, with disagreement even over the degree of consensus that could be achieved, according to the workshop's convenor Susanne Brauer and co-convenors Roberto Andorno and Nikola Biller-Andorno, from the Institute of Biomedical Ethics at University of Zurich in Switzerland.

According to Brauer, one group at the workshop felt there was a need for a more substantial pan-European agreement on the ethical, legal and political basis of advance directives. This group was concerned that the current consensus was too vague and open to widely varying interpretation. This consensus is based on article nine of the Convention on Human Rights and Biomedicine, established in Oviedo, Spain in 1997, stating that "the previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account." "This group argued that the convention needs greater clarity on the significance and respect for autonomy, as well as clarification on the approach to decision-making for patients without a surrogate (person such as a relative empowered to make decisions on the patients' behalf)," said Brauer.

Others at the conference however argued that the complexity and diversity of approaches to advance directives across Europe limited the degree of consensus that could be achieved. "Such diversity has been echoed, for instance, in different standards for the provision of artificial nutrition and hydration, which leads also to practical challenges that are faced in implementation," said Brauer.

On the other hand these differences themselves mean there needs to be some mechanism for resolving conflicts that occur between patients' wishes and local practices in the event of people falling ill when travelling abroad for example. "It is important to reach a clear understanding of the implications of the different normative frameworks and/or policy choices for health care practices, including potential conflicts in standards between patients' countries of origin and the countries in which they are seeking health care," said Brauer.

The best known legal differences relating to advance directives relate naturally to euthanasia and assisted suicide. While euthanasia involves administration of a lethal dose by a doctor, in assisted suicide the patient does it and has to be therefore of sound mind to make the decision. The controversy concerns the right of patients to specify in an advance directive that they be killed at some future time when they are no longer able to make the decision and have reached a point where under some definition they no longer have any quality of life. Irrespective of an advance directive, most European countries forbid carrying out any instructions for euthanasia. However, those European countries with a law governing them honour advance directives specifying passive withdrawal of life support mechanisms or medicines. Europe does though have the only two countries in the world, the Netherlands and Belgium, where laws specifically permit euthanasia. Furthermore in February 2008, Luxembourg passed a law, yet to come into force, to permit euthanasia and assisted suicide, and while both euthanasia and assisted suicide are illegal in Switzerland, the latter is penalized only if it is carried out "from selfish motives".

Clearly the existence of such discrepancies among European countries and the existence of "suicide tourism", makes consensus hard to reach. However it makes it all the more important to establish common ground and understanding, which the ESF workshop helped to achieve. In particular the workshop grappled with many of the highly challenging legal, ethical and clinical issues relating to advance directives, such as how they can be implemented by physicians in the many situations where outcomes of treatment and even diagnoses are uncertain.


Contact: Susanne Brauer
European Science Foundation

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