CYIL vol. 11 (2020)
JOSEF SALAČ CYIL 11 (2020) termination of treatment even if it was connected with certain activity (physical movements) of health professionals (such as turning off a medical device) 40 . It has been claimed that termination of treatment, even if it requires some physical movements, might represent a lesser influence on the patient’s organism that prolonged treatment. For this reason, treatment can be understood as a continuing interference with the patient’s integrity, and its termination can be simply considered a cessation of this interference. From this perspective, termination of treatment is not an active interference with physical integrity – as well as leaving the neighbour’s house is not an active interference with privacy. 41 We find this line of argument reasonable. Otherwise, a treatment that was once commenced would forever be understood as a part of the patient’s integrity even if it consisted in repeated interventions, administration of drugs, etc. Furthermore, there would arise unjustified differences between similar situations. For example, terminating cardiopulmonary resuscitation (CPR) would be permissible since it consists in stopping a specific physical activity. However, there are sometimes used automatic chest compression systems for maintaining CPR, for example, during the transfer to the hospital 42 . Turning such a machine off requires that a health professional makes a physical movement. If any physical activity were understood as an active cause of death, it would not be permissible to terminate CPR performed by a medical device. Similarly, discontinuing the medication that is administered by injections or pills would be permissible since the health professionals would simply abstain from injecting the patient or giving them the pills, but if the drug was administered by a machine, it would not be possible to stop the medication. These unreasonable distinctions seem to uncover the absurdity of the broad understanding of the active cause of death. For this reason, we believe that termination of treatment should not be considered an active cause of death. Nevertheless, the providers face a very low level of legal certainty in this context. It is not surprising that providers are often advised by the lawyers not to respect PEWs by terminating life-saving treatment without the court’s permission 43 . The situation is clearer in the case of an incompetent patient in the terminal stage of illness who is no longer medically indicated for curative treatment. Termination of such treatment and its replacement with palliative care will certainly not be considered an active cause of death. However, the legal cause of this termination is not the patient’s previous consent but the fact that such a course of action is in accordance with the professional standards. 44 40 See HOLČAPEK, Tomáš. Dříve vyslovená přání [Previously ExpressedWishes]. In ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravotnické právo [Health Law]. Wolters Kluwer, Praha 2016, p. 262. 41 See HOLČAPEK, Tomáš. Rozhodnutí soudu jako zdroj oprávnění zásahu do integrity [Judicial Decision as a Source of Right to Interfere with Integrity]. Časopis zdravotnického práva a bioetiky. (2018, Vol. 8, No. 3), pp. 5-6. 42 See for example WANG, P. L., BROOKS, S. C. Mechanical chest compression machines for cardiac arrest. Cochrane. (20 August 2018.)
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