A Quick Look at the Laws Regulating Advance Directives in Nigeria

INTRODUCTION

Health is vital and indispensable in every nation. Therefore, the importance and existence of a legal framework to govern a nation’s health sector cannot be overemphasized. Every legal document serves a purpose, as it reflects the needs, desires, and wishes of the maker of the document.

Advance Directives are sets of orders made by a person on treatment preference in the event of the maker being incapable of making sane and sound medical decisions. It explains how medical decisions should be made on behalf of the creator of the directives[1]; it is a legal document signed by a competent person stating his desires if he/she cannot make sound decisions [2]. It is a document that must be honoured on behalf of the maker.

Advance directives generally fall into three categories: the Living Will, Power of Attorney, and Health Care Proxy[3].

A LIVING WILL is a legal document that specifies the type of medical treatment that is desired. It can be specific or general in nature. It makes provision for the occurrence of an ailment which deprives the maker, of the sanity needed to make preferred decisions. This document is mostly used at the end of life of a person who is terminally ill or permanently unconscious, stipulating whether a death-delaying procedure should be used and also describing the conditions in which an attempt to prolong life should be enforced, and it is majorly applied to terminal conditions.

THE HEALTH CARE PROXY is a legal document in which an individual assigns another to make health care decisions for eventualities of the makers’ inability to make informed and better decisions.

WHERE THE POWER OF ATTORNEY is concerned, legal rights and power are delegated, providing the delegated individual powers to make bank transactions, legal and moral decisions, during the pendency of the Power of Attorney. Before the medical Power of Attorney can be used, it must be certified that the maker of the instrument is unable to make their own medical decisions[4].

REGULATORY FRAMEWORK

The health profession is regulated by various laws, regulations, statutes, and codes, and they are well -formulated to ensure that conducts towards the health of the citizens are well safeguarded and provided for. These practices are governed by the provisions of the National Health Act [5], the Medical and Dental Practitioners Act[6], the Code of Medical Ethics in Nigeria[7], the Constitution of the Federal Republic of Nigeria (as amended)[8], the Nursing and Midwifery Act [9], the Compulsory Treatment and Care of Patients with Gunshot Wounds[10]. These Laws, Regulations, and Codes are primarily concerned with the relationship between care professionals and the patients. They regulate medical laws which deal with life issues like respect for one’s body, respect for dignity of humans, donation, and transplant of human tissues and fluids, right to life and right to die, care of dying patients, and so much more[11]. Although no specific Law has been promulgated to cover the entire scheme, purpose, and intent of advance directives in Nigeria, some extant laws have readily given the legal backing needed to carry on advance directives.

In the Nigerian Constitution, provisions are made for every citizen’s right to life[12]and the right to dignity of human persons[13]. These laws are all-encompassing as they cover all areas concerning humans. The National Health Act has provided that all information concerning a user, which includes his or her health status, treatment, or stay in a health establishment should be confidential;[14] otherwise, the User consents to the disclosure in writing [15] and in the case of a person who is unable to grant consent, the request can be granted by a guardian or a representative.[16]

The above provision, as culled from the Act, gives legal rights to a Health Care Proxy or a Donee of a Power of Attorney, wherein the patient cannot grant consent on his/her behalf, given the representative powers and right to dispense with the duties and actions that a patient would naturally enforce where possible.

Advance directives can be made to regulate a person’s health choices, describing under what conditions an attempt to prolong life should be stopped. This applies to treatments including, dialysis, tube feeding, life supports, donation of organs or other body tissues[17]. The National Health Act provides that a person shall not remove tissue, blood, or blood product from the body of another living person for any purpose except[18] where the informed consent of the person from whom the tissue, blood, or blood product is removed is being granted in the prescribed manner[19].

A Power of Attorney for health care, best known as a medical power of attorney, as a legal document, grants the maker the power to name a person to make all health care decisions if he/she becomes unable to do so. This must be done after it is certified that one is unable to make sound and sane medical decisions.

A person who is competent to make a Will may, in the Will, donate his or her body or any specified tissue thereof to be used after his or her death[20], and he/she can mention the treatments desired, though not legally binding. The treatments mentioned must be considered if it is relevant to their medical condition. Advance directives stipulate in advance how the care users would like to be treated by health care providers when they are incapacitated. The law should intend to provide opportunities for adults to express their desires/wishes about medical treatment in advance and to educate them on the relevance of advance directives[21]. It is worthy of note to state that advance directives are not enforceable if it specifies an illegal act, which may lead to death, as that goes beyond the bounds of the Law[22].

CONCLUSION

Advance Directives play a vital role in medical decision making, and as such, institutional policies should be developed regarding the implementation of these directives through Health Insurance schemes[23]. The promulgation of laws for advance directives in our judicial system would put an end to non-consensual health practices, especially in the line of accident victims and patients with varying religious beliefs. Where a living Will, Power of Attorney, or a Health Care proxy is appointed, the healthcare giver would be bound by the instruction of the Will, or the instruction of the representatives (where there is a Power of Attorney or a Health Care proxy). This will further exonerate healthcare givers from liabilities, as their actions would only be a representation of the wishes of the patients, in line with the Oath of the Healthcare givers.

FOOTNOTES:

[1]https://www.cancer.org/treatment/treatments-and-side-effects/planning-managing/advance-directives/what-is-an-advance-health-care-directive.html

[2] https://www.merriam-webster.com/dictionary/advance%20directive

[3] https://www.medicinenet.com/advance_directives/definition.htm

[4]https://www.cancer.org/treatment/treatments-and-side-effects/planning-managing/advance-directives/types-of-advance-health-care-directives.html

[5] The National Health Act 2014, No. 8

[6] The Medical and Dental Practitioners Act Cap M8 Laws of the Federation 2004

[7] The Code of Medical Ethics in Nigeria (pursuant to section 1(2)(c) of CAP M8)

[8] The Constitution of the Federal Republic of Nigeria 1999 (as amended)

[9] The Nursing and Midwifery (Registration, etc.) Act 1979

[10] The Compulsory Treatment and care for victims of Gunshot Act 2007

[11]https://thefirmaadvisory.com/new-blog/2020/3/16/the-legal-and-regulatory-framework-governing-the-health-profession-in-nigeria-and-the-united-kingdom-a-synopsis