Living Will And Informed Medical Consent In Nigeria

• Published date: 09 January 2024
• Law Firm: S.P.A. Ajibade & Co.
• Author: Olukolade O. Ehinmosan

1. BACKGROUND

It is common knowledge that Wills are testamentary and come into operation only after the death of the testator. Thus, Wills allow the testator to give binding instructions despite the supreme finality of death in terms of the testator's autonomy. Meanwhile, death is barely the only factor that could deprive an individual of autonomy. Highly incapacitating and terminal illnesses, and being in a medical vegetative state may also deprive several persons of autonomy. This contrast becomes more legally interesting considering that such incapacitated persons, unlike deceased ones, are still alive and seised of their fundamental human right to liberty and self-determination.¹

In such dire situations, the close relatives and/or friends of such persons usually take decisions on choice of medical treatments and procedures. Unfortunately, however, unlike the case of a valid Will, there is no certainty that the decisions of such close relatives or friends would genuinely and completely reflect the patient's wishes. Could there be innovative ways to take advantage of existing Nigerian laws to achieve certainty on this subject?

This is where the concept of a "Living Will" comes in. This article examines the concept of Living Wills in light of extant Nigerian laws and recommends the execution of Living Wills as a crucial part of estate planning, management, and succession.

THE CONCEPT OF A LIVING WILL

The United States of America, England and Wales account for jurisdictions where Living Wills are valid, binding, and enforceable.² The term Living Will is an oxymoron which describes a "Will" that comes into operation before the death of the "testator".

The drastic improvements in medical science and technology that characterized the 19th Century also had strapped to its back, a conflict between two important sides to a medical treatment transaction. Doctors developed the ability to now keep the body alive without regard to a functioning brain. In fact, the traditional definition of death was further obfuscated.

Whilst families of patients (on one side) may desire their loved one who is brain dead to be allowed to pass on with dignity as there is no realistic chance that they would ever regain consciousness naturally, healthcare providers (the other side) believe it was their moral and professional obligation to keep patients alive as much as possible, whether by natural or artificial means.

The popular United States' case of Karen Ann Quinlan³ proves historically important to this conflict. Twenty-two-year-old Karen Quinlan went comatose, reportedly from the influence of alcohol and certain drugs, and was...