CYIL vol. 11 (2020)

CYIL 11 (2020)

PREVIOUSLY EXPRESSED WISHES IN THE CZECH REPUBLIC …

Conclusion Previously expressed wishes were introduced to Czech law with the ratification of the Convention on Human Rights and Biomedicine in 2001. It was not a coincidence: the Convention on Human Rights and Biomedicine importantly accelerated the change of Czech health law towards the autonomy-based paradigm. Nevertheless, the Convention’s regulation of PEWs is very vague. The resulting legal uncertainty burdened the applicability of PEWs for more than a decade. Since 2012, the relatively detailed conditions for PEWs are regulated by the Act on Health Services. The formal criteria for the validity of PEWs are set rather strictly. This seems to compensate for the legal uncertainty of the past period – the lawmakers tried to make sure that the clinicians will relatively easily assess the validity of PEWs. When the formal criteria are fulfilled, the regulation in force gives the patient’s PEW strong protection. Except for a few exhaustively listed cases, the provider of health services is obliged to respect PEW even if it led to the patient’s demise. The five-year time limit to the validity of PEWwas abolished by the Constitutional Court. The provider is, nevertheless, not obliged to respect PEW if there occurred such medical developments that it is possible to reasonably expect that the patient would express her or his consent to their provision. On the other hand, the developments of the patient’s personal situation are not mentioned in the legal text. There might arise hard cases, for example, when the patient who has lost decision-making capacity is apparently happy but her or his own PEW from the past prevents life-saving treatment she or he needs. A legal solution to similar cases is not entirely clear. We argue that it might be sometimes justifiable to carefully assess the patient’s current best interests even if it resulted in overriding her or his PEW. Another area where legal uncertainty persists is the termination of treatment. According to the law, PEWs cannot be respected if they led to an active cause of death. However, it has not been clarified whether termination of treatment is considered an active cause of death or not. Agreeing with a relevant part of the doctrine, we believe that termination of treatment is not an activity but rather a cessation of active intervention to a human organism (even if it required physical movements of health professionals). However, until the case law or the legislator confirms this understanding, the providers of health services need to be careful in this regard. We can conclude that the regulation of PEWs in Act on Health Services appropriately fulfils Czech Republic’s international obligation, secures legal certainty, and sufficiently protects the patients’ right to autonomy even after the loss of their decision-making capacity 45 . However, there persist several important unresolved questions. In order to further strengthen legal certainty, these issues should be clarified by the courts and, if necessary, by the lawmakers. are not Able to Express their Will]. accessed 16 July 2020. See also MACH, Jan, BURIÁNEK, Aleš, ZÁLESKÁ, Dagmar, MÁCA, Miloš, VRÁBLOVÁ, Barbora. Zákon o zdravotních službách a podmínkách jejich poskytování. Zákon o specifických zdravotních službách. Praktický komentář [Act on Health Services and Conditions of their Provision. Act on Specific Health Services. Practical Commentary]. Wolters Kluwer, Praha 2018, p. 160. 45 See also SALAČ, Josef. Dříve vyslovené přání – úvaha [Previously Expressed Wish – Thoughts on Matter]. In DVOŘÁK, Jan, MACKOVÁ, Alena (eds.). Pocta Aleně Winterové k 80. narozeninám [Tribute to Alena Winterová on the occasion of her 80th birthday]. Spolek českých právníků Všehrd, Praha 2018, p. 374.

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