CYIL vol. 13 (2022)

TOMÁŠ HOLČAPEK CYIL 13 ȍ2022Ȏ experimental therapy, or perhaps to sheer luck. But health professionals, who are supposed to assess the situation from a less emotional, more objective viewpoint, may want to refrain from further attempts to cure the patient, and rather prefer to offer comfort and support when the inevitable end approaches. Health professionals on the one hand and the patient and his or her family on the other hand may have different opinions and preferences. In this article we leave aside scenarios in which doctors want to treat the patient but the patient or his or her legal representative disagrees. We focus on the opposite situation, in which the health professionals want to terminate care which they no longer consider beneficial and in the patient’s interest. We will focus on minors who lack sufficient legal capacity to decide for themselves. Therefore, the outlined conflict may arise between the health professionals and the patient’s parents. 1 Almost any kind of disagreement between human beings can be transformed into a legal dispute if at least one of them wishes to frame it that way. Consequently, judicial mechanisms, in particular courts, may be called upon to resolve such controversy. A resolution of such dispute may be truly difficult and sensitive, for the treatment in question may be one which sustains the patient’s life 2 , albeit of a very problematic quality. In the following text we will use the notion of “futile” or “ineffective” care as a shorthand describing curative treatment which to the best knowledge of the relevant health professionals promises no material benefit to the patient, but rather constitutes an unnecessary burden and discomfort. We must bear in mind, however, that these designations are not meant to imply that “futility” of treatment is a precise quantity, which the doctors calculate objectively with no regard to the patient’s wishes. It is necessary to always take into account that what the patient (or the patient’s family) wants or refuses may not be governed solely by considerations of medical science, but also by individual life decisions, values and preferences. The discussion under which conditions a health care provider may end such ineffective curative treatment does not mean that the patient would then be left on his or her own. Quite the contrary: the patient would receive, or continue to receive, support and palliative care aimed at maximum reduction of pain, suffering and discomfort. This is an extremely important assumption on which we will rely without constant repetition. 1. Legal Background Life involves countless scenarios which may differ one from another in major aspects or mere details. For the purposes of this discussion, let us use a basic case in which due to incurable illness or injury a patient is in a very severe state of health and dependent on life sustaining treatment of some sort. In the opinion of the health professionals (or a relevant part of them) such treatment does not bring any material benefit to the patient and the prolongation of the patient’s life is connected with significant suffering or at least discomfort, which they are unable to completely redress. The quality of the patient’s life is much below what might be considered normal. Therefore, they come to the conclusion that there is no other reasonable alternative than to end curative (and/or life-sustaining) treatment and let 1 For reasons of simplicity, let us broadly assume that the child is legally represented by his or her parents, who are present and able to express their will to the health care provider and its personnel. 2 Such treatment may include e.g. artificial ventilation, pharmacological support of blood circulation or artificial hydration and nutrition.

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