Euthanasia, Assisted Suicide and Decision-making at the End of Life
Chapter 8
Euthanasia, Assisted Suicide and Decision-making at the End of Life
Introduction1
Africa is marked by the absence of debate on issues relating to decision-making at the end of life.2 Afro-centric judicial decisions and academic commentaries on the subject are tellingly rare. Yet, traces of mortuary attitude favouring death over unremitting pathological pain and suffering could be found in African worldview and mortuary discourses.3 In other words, although sanctity of life is a highly favoured principle in African culture, as argued below, there are some circumstances in which certain persons might welcome death as a solution to unremitting pain, in the spirit of euthanasia. In Africa and elsewhere, questions and controversies relating to the time and manner of death are exacerbated by developments and advances in biomedical technologies. For instance, Woodman observed that the ‘very measures that we once viewed as miracles of modern medicine can now be seen in a more critical light. Now we know that machines designed to prolong life can sometimes do nothing more than prolong the dying process’,4 and that as ‘a result, more and more suffering people are asking their physicians to help them die, not keep them alive’.5 Similarly, religion plays a significant role in an African’s decision to accept or reject a life-saving medical procedure. Thus, the thematic and analytical indifference over euthanasia in Nigeria (and other African countries) is difficult to explain; yet the crucial factors underpinning the debate on euthanasia and related matters are generally present in Nigeria.
Accordingly, this chapter explores the debate on euthanasia and related concepts within the legal and socio-cultural contexts of Nigeria. For that purpose, the author embraces Sneiderman’s useful taxonomy for legal discourse on decision-making at the end of life.6 Following this introduction, therefore, the analysis is structured into six sections: ‘Refusal of Life-Saving Therapy by Competent Adults’; ‘Termination of Life-Saving Treatment for Incompetent Patients with Advance Directives’; ‘Termination of Life-Saving Treatment for Incompetent Patients without Advance Directives’; ‘Assisted Suicide’; ‘Double Effect’; and ‘Euthanasia’. The chapter ends with a conclusion.
Refusal of Life-Saving Therapy by Competent Adults
Outside the recognized exceptions of emergency care and public health considerations,7 competent adults can refuse a life-saving therapy or any therapy at all. This right of autonomy is well grounded in Anglo-Canadian8 and American jurisprudence.9 It is also an emanation of the principle that the doctor–patient relationship is constituted by consent. Absent consent, a physician’s contact amounts to battery in civil law or assault in criminal law; similarly, the withdrawal of consent exposes subsequent contacts to legal liability. Accordingly, where a patient is competent, neither the assumed irrationality of a decision to forgo life-saving treatment nor the foolishness of motives assumed to underlie such a decision would justify medical intervention. These principles are constitutionally protected in Nigeria, as in the US,10 by guarantees relating to privacy and freedom of thought, conscience and religion.11
Judicial analysis of the right to reject medical intervention, even in the face of imminent death, was first undertaken by the Nigerian Supreme Court in M.D.P.D.T. v Okonkwo,12 in relation to the right of a Jehovah’s Witness to reject medically indicated and life-saving blood transfusion.13 In Okonkwo’s case, Mrs Martha Okorie, a 29-year-old patient, suffered from anaemia and developed medical complications shortly after delivery at a maternity clinic. She was transferred to Kenayo Specialist Hospital and attended to by Dr Okafor, who recommended blood transfusion for her. Being a Jehovah’s Witness, together with her husband, Mrs Okorie strongly rejected the health management plan based on blood transfusion, despite Dr Okafor’s careful explanation of the dire health consequences of her decision. There was nothing (in the report of the case) to suggest that she was incompetent. While Mrs Okorie’s competency was not directly raised nor discussed in the judgement, the court’s reasoning and analysis of the facts actually imply that Mrs Okorie was competent. Following her rejection of blood transfusion, Dr Okafor was constrained to discharge Mrs Okorie; she was later admitted to the respondent’s care at another hospital.
Interestingly, the respondent was also a Jehovah’s Witness, although not opposed to blood transfusion for consenting patients. Mrs Okorie, who was supported by her husband, re-stated to the respondent her firm opposition to blood transfusion, and equally brandished a signed card prohibiting blood transfusion. The respondent respected Mrs Okorie’s decision and she died a few days later from her medical condition. Mrs Okorie’s mother and uncle lodged a complaint with the respondent’s professional body; this triggered professional disciplinary proceedings against the respondent. The appellant/professional tribunal found the respondent guilty of the charges levelled against him and suspended him for six months. The tribunal held that since Mrs Okorie had rejected blood transfusion, the respondent ought to have terminated his (medical) contract with her or referred her to another medical institution likely to override her wishes on blood transfusion. The Court of Appeal set aside the decision of the tribunal, holding that it gave little weight to a patient’s autonomy and right to reject medical intervention.14 At the Supreme Court, Ayoola, JSC, delivering the lead judgement, observed that conflicts between patients’ rights and public health are constitutionally mediated by balancing several interests, ‘namely: the constitutionally protected right of the individual; state interest in public health, safety and welfare of society; and, the interest of the medical profession in preserving the integrity of medical ethics and, thereby, its own collective reputation’.15
After noting that the liberty of the individual is threatened by giving undue weight to other interests over the rights of a competent patient, Ayoola, JSC observed that where ‘the direct consequence of a decision not to submit to medical treatment is limited to the competent adult patient alone, no injustice can be occasioned in giving individual right primacy’.16 Accordingly, Ayoola, JSC opined that the respondent-doctor was helpless in the face of his patient’s refusal of blood transfusion and that the helplessness presented him with only three stark choices: terminate the contract and force the patient out of the hospital; sustain the patient’s admission but withdraw from any form of treatment; or provide relief for the negative health outcomes arising from the patient’s refusal of treatment.17 As the Supreme Court observed, it was up to the respondent how these choices were exercised since they were more of a personal than professional matter. Accordingly, Ayoola, JSC held that there was ‘no duty … on the respondent to transfer the patient to another hospital merely because she had refused to submit herself to blood transfusion by reason of her religious belief’.18
In sum, Okonkwo’s case suggests that even outside the realm of blood transfusion, a competent patient in Nigeria can lawfully demand the termination of life-prolonging treatment or life support apparatus; and such a decision must be complied with even in the face of imminent death. Twelve years after Okonkwo’s case, Nigeria promulgated the National Health Act which unambiguously affirms a patient’s ‘right to refuse health services’.19 Thus, the principle of Okonkwo’s case has been incorporated into a statute. Yet, Okonkwo-type individualistic decisions that hasten death sit uneasily with Nigeria’s ontological perception of mortality and the familial character of decision-making at the end of life. In Nigeria’s mortuary tradition, death marks a transition to another life, not the end of life itself.20 Upon death, a person joins the world of ancestors from where they remain relevant in the affairs of the living. Thus, Tempels argues that African philosophy is based on a recognition that all humans, animals, animate and inanimate things are interactive and hierarchically organized forces.21 At the apex is the supreme force, represented by God, followed by the ancestors, living persons, animals and down to the least inanimate object (representing weaker forces).22
Tempels further argues that every force is ontologically pre-occupied with metaphysical strengthening; consequently, every misfortune such as ‘illness, wound or disappointment, all suffering, depression, or fatigue, every injustice and every failure … are spoken of by the Bantu as a diminution of vital force’.23 Thus, a higher force could exercise a pernicious or beneficial influence on a lower force.24 Since God is the highest force, and ‘the origin, the subsistence or annihilation of beings or forces, is expressly and exclusively attributed to God’,25 it is ontologically absurd that a living human being, hierarchically below the metaphysical force of God and ancestors, could hasten their death through the rejection of life-prolonging measures. As stated above, death or annihilation of a force is the metaphysical prerogative of the supreme force (God). In other words, the rejection of life-prolonging treatment is ontologically unacceptable.
Where, however, unremitting pain afflicts the dying, sacrifices could be offered to persuade the supreme force to hasten the death of the sick. Among the Ndebele, therefore, Mbiti observed that if ‘the sick man lingers on in pain, his relatives kill what is known as “the beast of the ancestors”. This is generally an ox or a goat (for a poor man), and its killing is believed to hasten death.’26 Thus, the African mortuary tradition compels an approach that conflicts with the patient’s claim in Okonkwo’s case. Moreover, in traditional and cultural settings, decision-making at the end of life is characterized by its familial approach. Family members give support to the dying and encourage them to allow nature to take its course rather than precipitate it.27 While Okonkwo’s case does not legitimize this traditional view, it should be recalled that although the patient’s decision was supported by her husband, her mother and uncle nevertheless challenged the procedure that led to her death. Arguably, the professional disciplinary proceeding instigated by the patient’s mother and uncle in Okonkwo’s case is an implicit protest against their exclusion from the realm of decision-making at the end of life, contrary to tradition.
Termination of Life-Saving Treatment for Incompetent Patients with Advance Directives
Mentally incompetent patients have no control over their medical care; treatment decisions are generally taken by their medical team and, in some cases, by a judicially appointed proxy. Thus, advance directives are needed to retain decisional authority over future healthcare. Accordingly, during a period of mental competency a person could give advance directives regarding acceptable and unacceptable future care should they become mentally incompetent.28
There are two forms of advance directives: the instructional directive, also known as a living will, and the proxy directive, also known as a durable power of attorney for healthcare.29 While the former provides specific instructions on permissible health interventions during a period of mental incapacity, the latter appoints an agent, or health surrogate, empowered to make treatment decisions on behalf of the principal, that is, the patient or maker of the document. Since instructional directives specify future conditions of ill health and treatment options in an anticipatory manner, it is inherently deficient in that a person can hardly anticipate the exact illness they would suffer in the future, except persons in the early stages of a monogenetic disease like Alzheimer’s disease. This uncertainty is exacerbated by the principle that an instructional directive does not bind a healthcare provider unless the eventual health condition conformed to the description in the directive.30 Even when an instructional directive perfectly anticipates a future health condition, it might describe it in vague terms such as ‘physical or mental disability from which there is no reasonable chance of recovery’; similarly, the treatment preference declared in an instructional directive might be afflicted with linguistic vagueness such as ‘heroic measures’ or ‘life prolonging procedures’.31
While a proxy directive is potentially free from the disadvantages above, it presents its own problems. For instance, some people might have difficulties finding suitable proxies that can be trusted to make decisions in accordance with the appointor’s values.32 Even where a proxy is found and preferences for future care are discussed, the discussion is ‘likely to have made use of vague terms and [is] therefore unlikely to overcome the ambiguities that plague advance care documents’.33 Therefore, a combination of both forms of advance directives is needed to maximize the maker’s control over future care; thus, the maker could authorize a proxy to fill the gaps left in the instructional directives.34
Emanuel and Emanuel have developed a model Medical Directive that seeks to avoid the deficiencies inherent in the more traditional forms of advance directives.35 For instance, the model Medical Directive specifies comprehensively four health conditions that paradigmatically result to incompetence – irreversible coma or a persistent vegetative state but with no terminal illness; coma with a small and uncertain chance of recovery; brain damage causing mental incapacity and the prognosis is terminal; and brain damage causing mental incapacity but without a terminal prognosis.36 Juxtaposed with the above illness scenarios is a long list of treatment preferences, including resuscitation, ventilation, artificial feeding, antibiotics and diagnostic tests. For each treatment category, the patient is given an option ranging from refusal of care, acceptance of care, to a declaration of a state of indecision. The model Medical Directive includes a section for the appointment of a proxy to resolve any unanticipated situation, and also a section for the patient to indicate their preference for organ donation. As already stated, the model Medical Directive aims to effectuate advance directives through the elimination of ambiguities that characteristically plagued the more traditional forms of advance directives. Whichever form is adopted, an advance directive must be made during the period of mental capacity and takes effect only during a period of incapacity; otherwise, the advance directive is invalid.
It is not clear whether or not an advance directive is legally enforceable in Nigeria. The legal status of an advance directive in Nigeria has not been the subject of any statute, judicial decision or academic commentary. Within the continent, however, the National Health Act of South Africa provides the statutory underpinning for advance directives.37 But the South African Act does not provide for instructional directives and only empowers a patient to appoint a proxy decision-maker in writing.38 Nevertheless, the Guidelines for the Withholding and Withdrawal of Treatment issued by the Health Professions Council of South Africa (HPCSA) provide that where ‘a patient lacks the capacity to decide, health care practitioners must respect any valid advance refusal of treatment’.39 For that reason, patients ‘should be given the opportunity and be encouraged to indicate their wishes regarding further treatment and to place in writing their directives for future care in possible critical circumstances … An appropriately drafted “living will” may be used for this purpose’.40
While the HPCSA’s guidelines are not enforceable as statutory provisions, they provide an ethical framework of good practice which is likely to inform any legal decision on the matter. Clarke v Hurst No is a good example.41 In that case, the patient was a member of the South African Euthanasia Society. In addition to speaking publicly in favour of dignified death through euthanasia, the patient made ‘A Living Will’, authorizing the discontinuance of life support measures if he suffered extreme physical and mental disability and there was no reasonable expectation of his recovery from the medical condition. Subsequently, the patient suffered cardiac arrest and became deeply comatose; he remained in a persistent vegetative state (PVS). The patient’s wife proposed to authorize the discontinuation of her husband’s artificial feeding (and other support mechanisms) and sought a declaratory order to that effect. The court granted her request; the court opined that life-sustaining procedures had proved unsuccessful for the patient and that his best interests were better protected by adherence to the wishes expressed in his Living Will. As the court observed, ‘just as a living person has an interest in the disposal of his body, so I think the patient’s wishes as expressed when he was in good health should be given effect to’.42
Similar to South Africa, advance directives are covered by legislation in some provinces of Canada.43 In addition, the Canadian common law endorsed advance directives through the decision in Malette v Shulman.44 While, as stated above, Nigeria has no statutory base for advance directives, Okonkwo’s case provides an analogical framework for the legal recognition of advance directives in Nigeria. Recall that in Okonkwo’s case, the patient showed her doctor a signed card which qualifies as an advance directive. The card was titled ‘Medical Directive/Release’ and declared:
I Martha K. Okorie, direct that no blood transfusions be given me, even though physicians deem such vital to my health or my life. I accept non-blood expanders, such as Dextran, saline or Ringer’s solution, hetastarch. I am 29 years old and execute this document of my own initiative. It accords with my rights as a patient and my beliefs as one of Jehovah’s witnesses. The Bible commands: ‘keep abstaining from blood’ (Acts 15:28, 29). This is, and has been, my religious stand for 6 years. I direct that I be given no blood transfusions. I accept any added risk this may bring. I release doctors, anaesthesiologists, hospitals and their personnel from responsibility for any untoward results caused by my refusal, despite their competent care. In the event that I lose consciousness, I authorise either witness below to see that my decision is held.45
Mrs Okorie’s directive embodies both instructional and proxy directives. While the legal status of this document was not one of the issues in Okonkwo’s case, the Nigerian Supreme Court nevertheless accepted it as reliable evidence of Mrs Okorie’s treatment choices and held that it was binding on her physicians. This suggests that advance directives are valid and enforceable in Nigeria.46 Furthermore, advance directives are protected by the fundamental rights guaranteed by chapter four of the Nigerian Constitution, especially the right to dignity of the human person and the right of privacy.47 These constitutional protections are consistent with the objectives of advance directives, such as securing the right to self-determination and enhancing the autonomy of an individual.48
In sum, a person could hasten death in Nigeria through an advance directive which rejects life-prolonging treatment on the occurrence of certain specified medical conditions. However, advance directives are not common in Nigeria; this is due to the low level of literacy and rudimentary state of medical technology in Nigeria.49 Moreover, advance directives are alien to Nigeria’s traditional health care system based on herbal and metaphysical treatment (invocation of spirits).50 Furthermore, the justifications for advance directives based on autonomy and self-determination are not persuasive in the cultural contexts of Nigeria characterized by the primacy of family cohesion, as well as group and communal-oriented values.51 Therefore, rather than advance directives, mortuary directives obtain in the Nigerian traditional milieu. Accordingly, a living person could give directions regarding the place, time and manner of their burial;52 after death, such mortuary directions are generally obeyed by living relatives. With the increasing modernization of Nigeria’s healthcare system, however, advance directives are likely to be popular in the future.
Termination of Life-Saving Treatment for Incompetent Patients without Advance Directives
Absent advance directives, the question of whether life-prolonging treatment should be withdrawn or terminated for an incompetent patient resolves itself into examination of the person with authority to decide for the incompetent patient. More poignantly, it resonates with the raging issue of whether or not a duty exists to provide futile treatment, that is, treatment which offers no chance of success.53
Canada, England and Nigeria adopt a contrasting and interesting mix of approaches to the issues above. For instance, the Law Reform Commission of Canada (LRC) disavows the existence of a duty on a doctor to provide futile treatment; it argues that when medical intervention becomes futile, doctors should be able to discontinue life-prolonging treatment for the incompetent patient.54 In another report, the LRC even recommended the incorporation of an express provision in the Canadian Criminal Code recognizing the absence of a duty on doctors to provide futile treatment.55