CYIL vol. 11 (2020)

JOSEF SALAČ CYIL 11 (2020) arrest in the terminal stage of illness, the need for blood transfusion in case of a patient who is a Jehovah’s Witness, etc. 6 The concept of PEWs aims at extending personal autonomy to the time when the person is for some reason unable to express her or his wishes 7 . As such, it reflects the current autonomy- based paradigm of health care 8 . Nevertheless, there are still many questions that need to be answered regarding PEWs, especially under which conditions it is applicable and what are its possible limits. We will first outline the history of PEWs in the Czech Republic and its current legal regulation. Then, we will analyse several problems regarding the applicability of PEWs to assess whether and how suitably the Czech regulation fulfils the country’s international obligation to guarantee that PEWs are taken into account when making clinical decisions. 1. Legal regulation PEWs were first introduced to Czech law with the ratification of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (hereinafter “Convention on Human Rights and Biomedicine”) in 2001 9 . Its Article 9 states that “[t]he previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account” . Explanatory Report to the Convention on Human Rights and Biomedicine (hereinafter “Explanatory Report”) makes it clear that a previously expressed wish may consist either in assent or refusal 10 . The states, nevertheless, are not forced to grant a PEW under any circumstances. According to the Explanatory Report, “taking previously expressed wishes into account does not mean that they should necessarily be followed. For example, when the wishes were expressed a long time before the intervention and science has since progressed, there may be grounds for not heeding the patient’s opinion. The practitioner should thus, as far as possible, be satisfied that the wishes of the patient apply to the present situation and are still valid, taking account in particular of technical progress in medicine.”  11 Even though the Convention on Human Rights and Biomedicine is directly applicable in the Czech Republic, the vagueness of Article 9 initially led to significant legal uncertainty 12 . 6 See ŠUSTEK, Petr, HOLČAPEK, Tomáš. Commentary to Section 98. In ŠVESTKA, Jiří, DVOŘÁK, Jan, FIALA, Josef (eds.). Občanský zákoník. Komentář. Svazek I [The Civil Code. Commentary. Book I]. 2 nd ed. Wolters Kluwer, Praha 2020, p. 375. 7 See VÁCHA, Marek. Dříve vyslovená přání [Previously Expressed Wishes]. In CÍSAŘOVÁ, Dagmar (ed.). Dříve vyslovená přání a pokyny Do Not Resuscitate v teorii a praxi [Previously Expressed Wishes and Do Not Resuscitate in Theory and Practice]. Univerzita Karlova, Právnická fakulta, Praha 2010, p. 11. 8 The patient-physician relationship has changed from paternalism to cooperation of equal partners. See for example ŠUSTEK, Petr. Zdravotnické právo [Health Law]. In ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravotnické právo [Health Law]. Wolters Kluwer, Praha 2016, pp. 31-32. 9 The Convention on Human Rights and Biomedicine has proven to be very important for the development of Czech health care towards the respect to patient’s autonomy. See ŠUSTEK, Petr. Two Decades of the Convention on Biomedicine: Has It Been Any Good? In ŠTURMA, Pavel (ed.). Czech Yearbook of Public & Private International Law. Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 9. Česká společnost pro mezinárodní právo, Praha 2018, pp. 257-269. 10 See Explanatory Report to the Convention on Human Rights and Biomedicine, point 60. 11 See ibid., point 62. 12 See PETERKOVÁ, Helena. Mezinárodní komparatistika a úvahy de lege ferenda [International Comparison and Thoughts De Lege Ferenda]. In CÍSAŘOVÁ, Dagmar (ed.). Dříve vyslovená přání a pokyny Do Not

390