CYIL vol. 11 (2020)

CYIL 11 (2020) PREVIOUSLY EXPRESSED WISHES IN THE CZECH REPUBLIC … Furthermore, legal sanctions for letting a patient die – if the PEW would be subsequently found invalid – would have been much harsher than sanctions for ignoring the PEW 13 . For these reasons, many physicians considered respecting PEWs too risky while others respected them in formally chaotic and somewhat covert ways. 14 This problematic situation remained for more than a decade. PEWs were not specifically regulated by Czech law until 2012 when Act No. 372/2011 Coll., on Health Services and Conditions of their Provision (hereinafter “Act on Health Services”) came into effect. PEWs have been – for the first time – regulated in its Section 36. 15 The patient may provide her or his consent or disagreement in advance for the case that she or he becomes unable to consent or disagree with the provision of health services and the manner of their provision. The provider of health services is obliged to take into account the previously expressed wish of the patient under several material and formal conditions. Logically, the PEW must be available to the provider at the time of decision-making. Health professionals are not obliged to actively seek PEWs that are not available to them either from the patient, her or his relatives, or medical records 16 . At the same time, a foreseeable situation must have occurred to which the previously expressed wish relates, and the patient must be in a health condition that makes her or him unable to express a new consent or disagreement. The previously expressed wish must be made on the basis of a written instruction provided to the patient concerning the consequences of her or his decision by a general practitioner with whom the patient is registered or by another attending physician who is specialised in the field the PEW is related to. This instruction needs to encompass a brief explanation of the actual content of the information provided to the patient 17 . The PEW must be made in a written form and provided with the patient’s notarised signature. The written physician’s instruction needs to be included in the PEW. Apart from the above-described general form of PEW, there also exists a special PEW for health services provided by a particular provider. This option covers the situations when the patient finds herself or himself in a hospital, unable to fulfil the formal criteria necessary to make a valid general PEW. For this reason, the specific PEW only needs to be recorded in the patient’s medical records with the signature of the patient, a healthcare professional, and a witness. It can be made anytime during the hospitalisation. However, if the patient is transferred to a facility operated by another provider, the PEW is not valid anymore. Resuscitate v teorii a praxi [Previously Expressed Wishes and Do Not Resuscitate in Theory and Practice]. Univerzita Karlova, Právnická fakulta, Praha 2010, pp. 62-63. Legal uncertainty regarding PEWs could even have criminal ramifications for health professionals, see CÍSAŘOVÁ, Dagmar. Neposkytnutí pomoci a další trestněprávní dopady respektování pokynů DNR [The Failure to Provide Assistance and Other Criminal Law Implications of Respecting DNR Orders]. In ibid., pp. 7-10. 13 See ŠUSTEK, Petr. Pokyny DNR a ochrana osobnosti [DNR Orders and the Protection of Person]. In ibid., pp. 35-36. 14 See MARX, David. Problémy s DNR v klinické praxi [Problems with DNR in Clinical Practice]. In ibid., pp. 18-22. 15 See Constitutional Court of the Czech Republic, no. Pl. ÚS 1/12, decision of 27 November 2012, para. 360. 16 See MACH, Jan, BURIÁNEK, Aleš, ZÁLESKÁ, Dagmar, MÁCA, Miloš, VRÁBLOVÁ, Barbora. Zákon o zdravotních službách a podmínkách jejich poskytování. Zákon o specifických zdravotních službách. Praktický komentář [Act on Health Services and Conditions of their Provision. Act on Specific Health Services. Practical Commentary]. Wolters Kluwer, Praha 2018, p. 156. 17 See ibid., p. 157.

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