CYIL vol. 11 (2020)

JOSEF SALAČ CYIL 11 (2020) There are exceptions from the obligation to respect the valid PEW. It does not have to be respected if since the time of making it, there occurred such medical developments that it is possible to reasonably expect that the patient would express her or his consent to their provision. In this case, it is up to the health services provider to decide whether to respect the PEW or not. The decision to disregard the patient’s PEW and the reasons which led to it shall be recorded in the patient’s medical records. In several cases, the provider is explicitly prohibited from respecting the PEW. The previously expressed wish cannot be respected if it requires such practices the result of which is an active cause of death, or if such medical procedures were initiated at the time when the provider had not have available the previously expressed wish, the interruption of which would lead to an active cause of death. It also cannot be respected if it could endanger other persons. Furthermore, minors or persons with limited legal capacity are generally excluded from making a valid PEW, no matter its content. Similar to the vague obligation set by the Convention on Human Rights and Biomedicine is Section 98 (2) of Act No. 89/2012 Coll., Civil Code (hereinafter “Civil Code”) that states: “In an intervention as well as when granting consent, account is taken of previously expressed wishes of the individual whose integrity is to be interfered with.” Nevertheless, the general term “take into account” can hardly provide a sufficient guidance in real-life decision making. According to the doctrine, this provision does not establish an obligation to respect the PEW in all cases (for example, it does not have to be respected if relevant circumstances changed in a way that was not foreseen by the person at the time of expressing her or his wishes) 18 . Nevertheless, in the context of health services, there will be applied the more detailed and specific regulation in Act on Health Services 19 . 2. Can there be a time limit to the validity of PEW? In its original version, Section 36 of Act on Health Services imposed a five-year limit to the validity of PEW. After this period, any PEW would have to be made again. This provision was subjected to a constitutional complaint based on the claim that the time limit is incompatible with the aim of the very concept of PEWs 20 . The Ministry of Health, on the other hand, stressed that the limit protected the patients since their circumstances might undergo important changes with time that are not known to the provider. There might also arise relevant developments in medical science. Furthermore, the decision making of young people might be affected by the undue influence of others as well as the lack of life experiences so their PEWs should not be valid for the rest of their lives. 21 The Constitutional Court of the Czech Republic in its decision no. Pl. ÚS 1/12 of 27 November 2012 stated that the requirement of repeated confirmation of PEW might guarantee that the wish was made seriously and with the full understanding of its consequences. However, the law did not protect the wishes of patients who would lose their decision-making capacity in the meantime. Such patients would not be able to make their PEWs repeatedly 18 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. 374. 19 See ibid., p. 375. 20 See Constitutional Court of the Czech Republic, no. Pl. ÚS 1/12, decision of 27 November 2012, para. 54. 21 See ibid., para. 134.

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