Introduction

In 2017, Ms. Qiong Yao, a writer from Taiwan, sent an open letter to her son in advance of his wish to “die with dignity” on an online platform.Recently, the news that a woman in Shanghai decided to go to Switzerland for euthanasia  due to an illness that had not been controlled  triggered public concern and deep thoughts.

Behind these behaviors lies a very heavy but compelling issue of death, leaving family members and the earth on which we depend for survival, which concerns the public's perception and understanding of the concepts and values of life.. When we are suffering from illness, do we have the right to control our own life and return home? Especially when the disease is in an irreversible state, cannot be relieved after exhausting appropriate treatment, and even has lost autonomy, should we choose external forces to maintain our vital characteristics, or respect the law of nature and die decently?

The system of "living wills" has helped people out of this dilemma in many countries and regions. In China, the "living will" is also slowly coming, landing and gradually improving, safeguarding our autonomy and dignity of life from the legal level. In this article, we will make a preliminary discussion of the relevant legal issues of living wills.

I The Conceptual Sector of  Living Wills

Living will, also known as "Advanced Medical Directives" or "Advance Directives", was first proposed by an Illinois lawyer named Louis Kuttner in a law journal in 1969. It refers to the provision of US property law that allows an individual to make advance arrangements for his/her property affairs after his/her death, and proposes an individual to make advance arrangements for the medical care he/she wants to receive when he/she is unable to make decisions on his/her own.

Living will is still a relatively new concept in our country, and there is no clear definition in our legislation at present. But through practice, living will can be understood as a written instruction made in advance by an individual when he/she has full capacity for civil conduct, which indicates the way and measures of medical care to be used when he/she may be at the end of an incurable illness or death or unable to make medical decisions independently. Because this kind of instruction is used when the individual is alive but unable to make autonomous decisions, it is called a living will.

Through the above-mentioned concept, living will is clearly different from will, voluntary guardianship and euthanasia, and the specific differences are as follows:

II  Practical Exploration and Legislative Survey of Living Wills

(i) Basis of entitlement to  advance directive

Currently, there is no specific provision on living will in PRC legislation. However,Constitution of the People's Republic of China，Civil Code of the People's Republic of China and other legislations provide sufficient legislative groundwork for the establishment of the living will system.

On the one hand, PRC legislation establishes the principle that the dignity of a natural person's life is inviolable. Paragraph 2, Article 33 of the PRC Constitution stipulates that "The state respects and protects human rights."Paragraph 1, Article 110 of the PRC Civil Code stipulates that "A natural person enjoys the right to life, physical right, right to health, right to a name, right to portrait, right to reputation, right to honor, right to privacy, marry by choice, and other rights."Article 130 of the Civil Code stipulates that "A civil subject shall exercise his/her civil rights according to his/her own will without interference." Article 1002 stipulates that "A natural person enjoys the right to life. The safety and dignity of a natural person's life are protected by law. No organization or individual may infringe upon a person's right to life. "Paragraph 1, Article 33 of the PRC Law on Basic Medical Care and Health Promotion stipulates that "Citizens shall be respected when receiving medical and health services. Medical and health institutions and medical and health personnel shall care for and treat patients equally, respect patients' personal dignity and protect patients' privacy. "It not only means that PRC legislation to a great extent respects and protects the dignity of natural persons' life to a great extent, but also means that a person's right to make his/her own decision about his/her own life, including whether to receive treatment and what treatment measures to receive when he/she is critically ill, will be gradually protected by law.

On the other hand, PRC laws and regulations stipulate the patients' "right to be informed and to consent" in different aspects and angles. For example, Paragraph 1, Article 1219 of the Civil Code, Article 25 of the Law of the People's Republic of China on Medical Practitioners and Article 32 of the Regulations on the Administration of Medical Institutions all stipulate that medical professionals shall inform patients of their conditions and the treatment measures to be taken during diagnosis and treatment. If a patient needs to undergo surgery, a special examination or a special treatment, the medical professional shall promptly explain to the patient in detail risks of such treatment and alternative treatments and shall obtain his/her express consent. If it is impossible or inappropriate to explain to the patient, the medical professional shall explain to the patient's close relatives and obtain their express consent. Thus it can be seen that a patient has the right of informed consent for treatment and the right to make his/her own decision about his/her own life according to law. In medical activities, it is a principle that the patient himself/herself decides the medical treatment and an exception that it is the patient's close relatives or doctor who decides to adopt relevant medical treatment. This is the legal basis of living wills and should be protected by law. Therefore, according to the aforesaid provisions, when the patient reaches the end of his/her life, he/she has the right to refuse painful, meaningless and unconventional treatment, and the right to choose a decent and dignified treatment plan to protect the patient's autonomy.

(II) Innovative Practice of Local Legislation

The aforesaid provisions aim to protect the life safety and dignity of natural persons, but are only limited to principles, and do not specify how to protect the life and dignity of natural persons. Article 78 of the Regulations of Shenzhen Special Economic Zone on Medical Treatment, which was revised, adopted and promulgated at the 10th session of the Standing Committee of the Seventh Shenzhen Municipal People's Congress on June 23, 2022, includes a patient's "right to make decisions at the end of life" in a local regulation in the form of living wills for the first time, which has become an innovative move in China's local medical legislation (see the table below for details).

Article 78 of the Regulations of Shenzhen Special Economic Zone on Medical Treatment

At the end of or near the end of an incurable disease or injury, a medical institution shall respect the patient's expression of will after receiving a living will from a patient or his/her close relatives and satisfying any of the following conditions:

(I) A clear expression of intent to adopt or not to adopt traumatic rescue measures such as intubation and cardiopulmonary resuscitation, to use or not to use life support systems, to conduct or not to conduct continuous treatment of the primary disease;

(II) It has been notarized or witnessed by two or more witnesses, provided that the witnesses are not the medical and health personnel involved in treating and treating the patient; and

(III) In case of adopting written form or audio-visual method, except for those that have been notarized, if the written form is adopted, it shall be signed by the person who makes the advices and the witness, with the time indicated thereon; if the audio-visual method is adopted, the name or portrait of the person who makes the advices and the witness, as well as the time thereof, shall be recorded.

In addition, when interpreting the Regulations of Shenzhen Special Economic Zone on Medical Treatment, the vice director of the Legislative Affairs Commission of the Standing Committee of the Shenzhen Municipal People's Congress emphasized the following three points with respect to Article 78: First, living wills must be concluded at the end of or near the end of an incurable disease or injury and must be based on the medical judgment of the medical institution, instead of the patient's own or another person's opinion. Second, living wills shall be restricted on the medical measures to be taken, specifically in traumatic rescue measures such as intubation and cardiopulmonary resuscitation, using or not using life support systems, and conducting or not conducting continuous treatment of the primary disease, instead of not taking any medical measures. Third, medical institutions should respect the living wills of patients, but respect does not mean implementation of such wills. For example, if the patient regrets on his/her living wills and withdraws his/her original decision, the medical institution shall also respect the intent of the patient. The above interpretation makes the specific application of living wills more rigorous and accurate. The application of living wills and the true intent of the advising party shall be strictly controlled, and the boundaries of autonomy of intent of living wills shall be clarified. The special legislation adopted in Shenzhen also conveys and clarifies a key legislative message and legislative guidance, i.e., the life safety and dignity of natural persons shall be protected by law, and this has great significance and positive influence on the promotion of legislating for living wills in other regions and even at the national level.

III  Practical Value of Living Wills

(I) Not bound by traditional morality and valuing the subjective feelings of the patient

In practice, there exist the following circumstances: a patient in the final stage of disease is fully dependent on a ventilator for breathing and his body is full of tubes, and the family members, out of kinship, ethics and morality, expend human and material resources to maintain the lives of their loved ones, while the patient has been tormented and wishes to end his or her life as soon as possible. There also exist the following circumstances: a patient in the final stage of incurable disease, loses consciousness, relies on a ventilator for life, and his or her family members require the removal of the ventilator due to the unbearable heavy medical expenses. The promotion and application of living wills has started a difficult dialogue among families, enabling family members to pay attention to the subjective feelings of patients, free themselves from the dilemma of making a choice, and return the choice to patients themselves, and alleviating the huge psychological pressure and financial burden on patients' family members to some extent.

(II) Recognizing the right to choose and respecting the law of life development

Living wills are not to end life prematurely, but to follow the law of the natural development of life, correctly face the problems of disease and life and death, and decide to use or not to use some specific medical measures. The implementation of living wills can fully respect the wishes of patients. In the process of hospital treatment, the will of the person who entrusts is dominant. If the person concerned has not entered into a living will, the hospital should do its best to carry out rescue; if the person concerned has made a living will, hoping that at the end of life, he or she can control the last of life by himself or herself and choose to reduce the suffering of disease. An effective living will can support his or her own will, make him or her able to view death rationally and scientifically, and reduce unnecessary disease and pain.

(III) Avoiding Contradictions between Doctors and Patients and Reducing Medical Disputes

In the context of an aging society, many people have to face the torture of old age and disease, and now the relationship between doctors and patients in many places is tense and sharp, this is mainly focused on the patients in the final stage of incurable disease and the hospitals. When the hospitals have done all the rescue but still fail to rescue them, and the family members cannot face the death of their loved ones, they will convert the pain into contradictions with the hospitals. The implementation of living wills can effectively alleviate such contradictions and reduce medical disputes. If national legislation further confers legal effect to living wills, issues such as the conflict between the patient's right to the self-determination of life and his/her family member's will, treatment duties of medical institutions, and professional ethics of medical personnel have been properly solved legally, and doctors make choices within the framework of law, then medical institutions and doctors will no longer be faced with the risk of civil tort claims or administrative punishment by competent departments, and may no longer have to worry about all these obstacles.

Living wills highlight the respect for human rights and the right to life, reflect the development and changes of social culture, ethics, and people's ideas of rights and duties, and also reflect the great demand for living wills in the aging society. Although living wills in our country is still at the initial stage, except for the local legislation of Shenzhen, there is no legislation at the national level or in other regions, nor are there more relevant medical rules to cooperate with living wills. But it can be predicted that with the wide attention of the society and the active practice and exploration of local legislation, it can provide experience for the future national legislation. When the conditions are ripe, to make corresponding provisions on living wills in national legislation will also promote the progress of the rule of law in China.

Conclusion

Atul Gawande said in The Best Farewell: "When life is near its end, people want to share memories, pass on wisdom, and mementos... they want to end their story on their own terms."When people are at the end of an incurable illness or dying state, who should decide whether and what medical measures to take? The answer should be the patient himself or herself.