LIVING WILLS AND THE RIGHT TO A DIGNIFIED DEATH

On 25 June 2021, the new law 3/2021 of 24 March regulating euthanasia in Spain comes into force in Spain. This law is a very important milestone in our country since from its entry into force, in certain circumstances and under conditions set out in the law (medical supervision and health professionals), one can voluntarily end one’s own life (active euthanasia).

Leaving aside any ethical or moral issues, the legal question that arises in the face of this new law is whether it has legalised suicide in Spain. The answer must be no, especially if we take into account the conditions imposed on an individual who is seeking medical assistance to end their life.

Generally speaking, the law does not allow suicide, nor inducement to or cooperation in it: it could not be otherwise. The law is simply limited to regulating situations where a person of legal age and sound mind, i.e. having full use of their mental faculties and with unrestricted capacity to act, decides when and how to end their life either due to a serious, chronic and incapacitating illness or a serious and incurable illness that causes intolerable physical or mental suffering.

The law classifies active euthanasia as “help to die” and it is included in the range of services provided by our national Health Service. It can also be provided in private facilities and even at home.

Let’s see, then, what conditions must be met by someone suffering a serious, incurable and intolerable illness in order to apply for this assistance:

Generally speaking, the procedure comprises the submission of two applications, voluntarily and in writing or in any other form that allows the unequivocal will of the applicant to be established, the whole application being signed in the presence of a health professional who will countersign it.

Once the application has been received, there are four phases: the first comprises a deliberative process between the attending doctor and patient; the second is obtaining a decision from the attending doctor as to whether the application should be continued with or abandoned; the third phase, if the application is approved, involves an examination by both the attending doctor and a consultant; finally, the attending doctor will report to a Guarantee and Evaluation Commission, which will review legal compliance and then issue its final decision.

This would be the procedure followed by someone conscious and of sound mind, with unrestricted capacity to act. In short, consent to receive this type of service must be freely and duly authorized by health professionals.

What happens, however, if the chronically ill person is incapacitated, unable to communicate or has been left in an persistent vegetative state? The law makes two provisions for these circumstances:

If the applicant is capable, but the attending doctor considers that an imminent loss of capacity to give informed consent exists, the period between the two requests may be reduced (less than the 15 days provided for by law), and this must be recorded in the patient’s medical record.

Alternatively, if the person is already in a de facto situation of incapacity, i.e. in those cases in which the attending doctor certifies that the patient is not of sound mind, nor able to give free, voluntary and conscious consent, they must have previously signed a document of prior instructions, a Living Will, or some other document of advance instructions or legally recognised equivalent, in which case euthanasia can be carried out in accordance with the provisions of this document, to which the law now grants equal full validity. Moreover, together with this document, the request for help to die must be presented by another person of legal age and sound mind or, if there is no such person, by the attending doctor personally. As a result, and although the law on euthanasia has been passed, each case must be scrupulously analysed, as the penal response may range from impunity to cases of coercion, facilitation, aiding suicide or even manslaughter or murder.

As can be seen, the Living Will or document of prior instructions has become a very useful legal mechanism to anticipate the wishes of a patient in a situation of intolerable suffering and profound incapacity. The drafting of such a document is essential and cannot leave any room for doubt in the minds of doctors or health professionals responsible for the provision of palliative care to the patient or make the corresponding decision if necessary.

Author: J. Escobedo

I am a member of the Tenerife Law Society since 1989 with a dedicated team for anyone who needs an immediate answer or long term solution to any practical or legal issues appertaining to any property or business investment in Spain. If you have decided to move to Spain to start a new life, whether that´s buying a property or a business, then you will definitely need the services of a good Spanish Lawyer who is fully conversant with Spanish protocol and who has a good command of the English language. I am based in the south of Tenerife and I am specialist in Property Law, Inheritance issues and taxes as well as Tenerife and Canarian law and a great deal more. ABOUT MY STAFF All my friendly and professional staff are fluent in English. We have been working for foreign clientes for over 30 years in Tenerife, providing legal advice and litigation services to all our clients investing throughout the whole of Spain and we pride ourselves on providing a high quality service to our clients in the form of clearer communication and advice.

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