CYIL vol. 11 (2020)

CYIL 11 (2020) PREVIOUSLY EXPRESSED WISHES IN THE CZECH REPUBLIC … and, as a result, their wishes would not be respected. According to the Constitutional Court, this possibility made the disputed legal provision inconsistent with Article 9 of the Convention on Human Rights and Biomedicine. 22 The time limit to the validity of PEWs was, therefore, abolished by the Constitutional Court. As we have already mentioned, the provider might still decide not to respect the PEW in case of relevant medical developments. This option seems to enable the providers to assess the situation adequately. However, the problem might arise if there has been an essential change in the patient’s personal circumstances rather than in the provision of health care. We will proceed to this question in the next chapter. 3. PEWs on the crossroads of autonomy and best interests There might arise a situation when the patient has lost her or his decision-making capacity and the valid PEW obliges the health services providers to act in a way that is seemingly contrary to the patient’s current best interests. We may recall the discussion on the fate of “Margo”, a dementia patient who by all accounts seems to be very happy, but her PEW bans the doctors from providing life-saving treatment. Let’s assume that Margo contracts pneumonia that will lead to her death unless she is treated with antibiotics. Should her PEW be respected? While this case study is hypothetical, it is based on the observations of a real patient with Alzheimer’s who was reported by medical students to be one of the happiest people they have known 23 . Ronald Dworkin argues that while letting Margo die would harm her current “experiential interests”, disrespecting her PEW would lead to more serious harm to her considered values and life story. For this reason, Dworkin believes that antibiotics should not be provided to Margo. 24 On the other hand, some authors argue that the PEW needs to be overridden by the patient’s current happiness 25 . The belief in the inapplicability of PEWs in situations similar to the one we find Margo in is usually based on two basic arguments. First, it is sometimes claimed that nobody can foresee what life with incapacity will be like. Second, it might be argued that the person with incapacity is actually a different person from the one who made the PEW. It would be difficult to disprove the first argument’s premise: we cannot know how we would really feel in very different life circumstances we have never experienced. It is sometimes claimed that for this reason, it is not possible to make an informed decision about life with lost capacity 26 . We can try to presume the quality of life with a certain medical 22 See ibid., para. 362-364. 23 See FIRLIK, A. D. A Piece of My Mind. Margo’s Logo. JAMA. (1991, Vol. 265, No. 2), p. 201. As cited in BEAUCHAMP, Tom L., CHILDRESS, James F. Principles of Biomedical Ethics. 7 th ed. Oxford University Press, Oxford 2013, p. 229. 24 See DWORKIN, Ronald. Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. Knopf, New York 1993, pp. 221-229. As cited in BEAUCHAMP, Tom L., CHILDRESS, James F. Principles of Biomedical Ethics. 7 th ed. Oxford University Press, Oxford 2013, p. 229. 25 See President’s Council on Bioethics. Taking Care: Ethical Caregiving in Our Aging Society. Washington 2005, p. 84. As cited in BEAUCHAMP, Tom L., CHILDRESS, James F. Principles of Biomedical Ethics. 7 th ed. Oxford University Press, Oxford 2013, p. 229. 26 See GOOLD, Imogen, HERRING, Jonathan. Great Debates in Medical Law and Ethics. 2 nd ed. Palgrave, London 2018, p. 68.

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