CYIL vol. 11 (2020)

CYIL 11 (2020) PREVIOUSLY EXPRESSED WISHES IN THE CZECH REPUBLIC … The worthiness of the person who has lost the capacity of understanding and appreciating her or his own previous wishes, together with the inability to foresee the quality of life with limited capacity, can arguably be understood as a moral justification of saving the patient’s life against her or his PEW in certain cases. Nevertheless, it is questionable whether such arguments might have legal relevance under Czech regulation of PEWs. The relevant provision of Act on Health Services seems to be rather strict in protecting the person’s previous wishes. We might argue that the content of PEWs should always be interpreted rather restrictively and, therefore, a Czech patient in Margo’s position should be given the antibiotics unless this specific treatment was explicitly prohibited in the PEW. However, such an argument might not necessarily be successful and, more importantly, it only circumvents the strictness of the law. The importance of the patient’s best interests in hard cases similar to Margo’s one would need to be examined by the courts, further analysed by the doctrine, and perhaps reflected by the lawmakers. Assuming the best interests were found to be relevant in the decision-making, it might often be necessary to assess the patient’s situation in the broader context of her or his life. In this way, the seriousness and importance of the PEW to the patient’s life story could be better understood and balanced against her or his current interests. Some authors consider contextual interpretation of PEWs crucial in all cases (not only those similar to the case study about Margo). Jaromír Matějek even argues that the literal interpretation of PEWs means ignoring the patient’s authenticity. He believes that PEWs need to be understood in the broad context of the patient’s life circumstances and motivations. 35 More generally, there must be taken into account the three basic contexts of an individual’s existence: her or his corporeality, relationships, and transcendence 36 . Nevertheless, Matějek rightly acknowledges that the contextual understanding of PEWs is very hardly controllable and that its control is impossible in a repressive atmosphere 37 . We would like to stress that the law inevitably creates such a potentially repressive ambience. The requirement of legal certainty makes the broad interpretation of PEWs very complicated, to say the least. Furthermore, PEWs will very often be read and “interpreted” by health professionals who have never met the patient before 38 . Therefore, it is not possible to completely exclude the “literalist” application of PEWs. Nevertheless, when time and the patient’s condition allow it, it might be necessary to take into account the above-mentioned contexts of the patient’s life story to find her or his best interests. 4. Can PEW lead to the termination of treatment? We have shown that PEWs leading to practices that would actively cause death can never be respected under Czech law. The question is, however, what exactly is considered an active cause of death. It needs to be acknowledged that the Explanatory Report to Act on Health Services explicitly mentions turning off medical devices, alongside the administration of a lethal dose of a drug, as examples of an active cause of death 39 . That is, however, controversial. A part of literature claims that active cause of death cannot consist in the 35 See MATĚJEK, Jaromír. Dříve projevená přání. Výhody a rizika [Previously Expressed Wishes. Benefits and Risks]. Galén, Praha 2012, p. 27. 36 See ibid. pp. 31-32. 37 See ibid., p. 71. 38 See ibid., pp. 62-64. 39 Explanatory Report to Act on Health Services, Special Part, to Section 36.

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