Advance Directives.

Outline
In Malaysia?
8th Malaysian Hospice Congress • Definition
Bayview Hotel, Penang • Underlying rationale/philosophy
13-15 June 2008 • Selected case law
• Which way forward for Malaysia?
Professor Norchaya Talib
Faculty of Law
University of Malaya
15 June 2008
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Definition Definition/Form

• A written, legal document, completed and

signed by a person above 18, explaining • It may include wishes to start or stop life-
his wishes for medical care, should he be sustaining treatment.
unable to make treatment decisions at a
future time.

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Forms of Advance Directives Rationale/philosophy

• Written (living will)

• Oral
• By proxy – granting a Power of Attorney
Autonomy
to someone else

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 (Modified) Rationale/philosophy
• Responsibility (self-accountability)
• For easy medical decision-making
• Utilitarian (?)
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Selected case law (cont)
• patient's condition further deteriorated. Prognosis - death within 36
hours without a blood transfusion.
• The patient's father applied for the court to intervene, to permit a
transfusion, on the grounds that had she been conscious the patient
would have consented herself in light of above facts and her
engagement to be married to Muslim fiance.
• Patient stopped attending Jehovah Witness congregation after
engagement.
• Held – treatment including blood transfusion, would be
lawful
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Selected case law (cont)
• At a time when he was plainly very ill, a conclusive diagnosis of
motor neurone disease had not yet been made, and he suffered a
respiratory arrest. An emergency invasive procedure was carried out
and a tracheostomy tube inserted. He was kept breathing by
artificial ventilation. He has remained on the ventilator ever since.
• That happened something like 2 years ago. This kind of invasive
treatment is not generally practised in this country upon patients
with motor neurone disease, the condition being irreversible. It
happened in AK's case because at that stage it was not known for
sure that his condition was motor neurone disease and was
irreversible. It is clear that if he were not on the ventilator natural
failure of breathing would have caused him to die some time ago
now, at the latest about a year ago, and probably much earlier than
that.
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Selected case law
• HE v A Hospital Trust [2003]
Patient 24 years old, born and brought up a Muslim. Upon parents’
separation she and her mother became Jehovah's Witnesses.
Congenital heart problem.
In February 2001, signed AD refusing blood and primary blood
components. Revocation to be in writing. In 2002, she saw a doctor
and surgery was planned without the use of blood products. In
2003, patient was seriously ill. As she was leaving home in an
ambulance she had said to her brother and aunt 'I don't want to die‘
Septic shock secondary to bacterial endocarditis. Required
debridement .She was sedated and thereafter remained
unconscious.
Selected case law (cont)
• Re AK [2001]
AK is 19 1/2 years old. Motor neurone disease since 17 yrs old. Lost
all limb movements, unable to speak for about 2 years. He cannot
swallow and has for a long time been fed through a tube.
For a while, some minimal movement in one great toe. That enabled
him to operate a computer and to communicate. Then that
movement was also lost. Thereafter he was able to communicate by
means of a device known as an 'E transboard' which involved the
painstaking spelling out of words letter by letter by a process linked
to the line of sight.
For past 3 months communication was via one eyelid movement, 1
mm. In weeks, to lose that and be ‘locked in’.
Selected case law (cont)
• By means of eyelid movement AK communicated that he would wish
his ventilation to be discontinued 2 weeks after communication had
ceased. His breathing would stop and he would die.
Held – AK is competent to make his own decision. There is
no issue of the court deciding for a patient, in the best
interests of that patient.
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 Selected case law (cont)
• Burke v GMC [2005]
Mr Burke, 45 years old. Congenital degenerative brain condition -
spino-cerebellar ataxia.There will come a time when the claimant
will be entirely dependent on others for his care and for his very
survival. He will lose the ability to swallow and will require ANH.
He sought a declaration that doctors would not remove ANH from
him.
Held - Autonomy and the right of self-determination do not
entitle the patient to insist on receiving a particular medical
treatment regardless of the nature of the treatment.
where a competent patient indicates his wish to be kept
alive via ANH a doctor must comply with request.
Other factors to consider
• Two limits to patient autonomy.
First, a patient cannot compel a doctor to provide treatment against
his clinical judgment or which the doctor considers not to be in the
patient's best interests.
Second, where the patient is motivated by a desire to commit
suicide, he cannot make the doctors complicit in that objective by
determining the course of treatment provided. (Burke)
• (Would AK’s situation be likened to suicide? )

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Other factors to consider Advance directives in Malaysia?

• What is it? (right/privilege)
• Capacity issues – ongoing process.
• What if patient makes a ‘sinful’ refusal?
• Why? (transplant/manifestation of
• AD is about right to choose how to live. individual right)
• Readiness of system – healthcare
• Informed consent is part of law. personnel, society, state, courts
Is AD the inevitable follow-up?
• In the right spirit – best interest of the
patient

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