CYIL vol. 11 (2020)

JOSEF SALAČ CYIL 11 (2020) condition based on our previous experiences, values, etc. However, we may not be able to foresee all possible situations. Furthermore, a part of the literature suggests that people tend to overestimate the suffering they would go through in case of misfortune. 27 It may be argued that our long-held values that form our life stories should take precedence over the less complex feelings of our incompetent future selves. In the literature, there can be found an opinion that therapeutic privilege (withholding certain information from the patient for the sake of their safety under strict condition) is justifiable from the perspective of autonomy because it protects the patient’s authentic life plan from her or his own strong emotional or other reactions that could otherwise prevail at the moment 28 . It would be controversial to claim that the same principle applies to PEWs. On the one hand, the feelings of a person who have lost her or his legal capacity can be in opposition to the life project the very same person used to live by and for. On the other hand, unlike therapeutic privilege, letting the patient die is a final and irreversible decision that might prevent her or him from enjoying the rest of life. Similar reasoning is taken even further in the second of the above-mentioned arguments against respecting Margo’s PEW. It is sometimes argued that when someone loses capacity, she or he becomes a new person in the moral sense. The values and life plans of the old person are not relevant for this new person who does not even understand them. Therefore, it would be unjust to treat the new person – let alone let her die – based on the wishes expressed by the old and now extinct person. The validity of this argument, of course, depends on the theory of self we choose to use. 29 However, we might not need to go as far as claiming that the person who made her or his PEW no longer exists to admit that the patient’s best interests might be taken into account when deciding on whether to respect or not the previous wishes 30 . Such an approach would require careful balancing various rights and interests of the patient (including the right to life, the right to the inviolability of the person, etc. 31 ) as well as the benefits and risks of particular medical interventions. It is true that the best interests of the incompetent patient are usually understood as a standard for making clinical decisions when there is no relevant PEW 32 . However, according to some authors, the best interests might sometimes validly override PEWs. Beauchamp and Childress illustrate this possibility by Margo’s hypothetical case, 33 noting that “[c]hallenges to reliance on advance directives often stress the formerly autonomous person’s failure to anticipate the state or condition that actually emerged”. 34 27 See ibid., p. 68. 28 See ŠOLC, Martin. Therapeutic Privilege as the Last Bastion of Paternalism? Responsabilità medica: Diritto e pratica clinica. (2019, No. 3), p. 401. 29 See GOOLD, Imogen, HERRING, Jonathan. Great Debates in Medical Law and Ethics. 2 nd ed. Palgrave, London 2018, pp. 67-68. 30 For a very brief outline of similar approaches, see ibid., pp. 68-69. 31 See ŠUSTEK, Petr. Pokyny DNR a ochrana osobnosti [DNR Orders and the Protection of Person]. 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. 32. 32 See for example BEAUCHAMP, Tom L., CHILDRESS, James F. Principles of Biomedical Ethics. 7 th ed. Oxford University Press, Oxford 2013, p. 229. 33 See ibid., pp. 228-229. 34 Ibid., p. 228.

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