Law, ethics and uncertainty: previously expressed wishes in healthcare

A prior expressed wish is a medico-legal and ethical institution that allows a person to express his or her wishes in advance in case he or she is in a future state of health that does not allow him or her to consent or, on the contrary, to the provision of health services. This is one of the instruments which, in medical law, enables the patient to exercise the right to protection of personality through this possibility of deciding on a certain course of action by the provider of health services in a foreseeable situation.

A frequent case of a previously expressed wish is a negative opinion on the further course of life-sustaining treatment, most often in the so-called "do not resuscitate" method. This is the patient's wish to refuse cardiopulmonary resuscitation in the event of cardiac arrest.

What is the legal anchor?

The previously expressed wish is anchored in Act No. 372/2011 Coll., on Health Services and Conditions of their Provision (Health Services Act), specifically in Article 36, and in Act No. 89/2012 Coll., Civil Code, both of which are linked to the Convention on Human Rights and Biomedicine. The Convention was the first to anchor the notion of "previously expressed wishes" in its Article 9, which specified that "The patient's previously expressed wishes regarding a medical procedure shall be taken into account if the patient is not in a condition to express his or her wishes at the time of the procedure."

What about previously expressed wishes in practice?

The Health Services Act sets out a number of conditions for what such a previously expressed wish must look like in order to be respected by a doctor. Such a wish must also include an instruction on the consequences of the decision, either by the GP with whom the patient is registered or by another treating doctor in the field to which the previously expressed wish relates. Alternatively, the patient may express a wish immediately on admission to the care of the health care provider or at any time during the hospitalisation. In such a case, a record of such a wish shall be made in the patient's medical record, which shall be signed by the patient, the healthcare professional and a witness. The requirement for a certified signature is therefore waived.

Generally speaking, a wish can only be exercised in the case of a patient who has reached the age of majority and is fully competent. Thus, a previously expressed wish cannot be respected if it is given, for example, by a legal representative for a child or by a person with limited legal capacity to make decisions about the provision of health services.

The law sets out other situations in which a previously expressed wish may not be respected by a doctor. These are cases where the wish would encourage procedures that would result in the active causing of death. Furthermore, cases where the fulfilment of such a wish would endanger other persons, and finally, cases where medical procedures have been initiated before the previously expressed wish was expressed, the interruption of which would result in the active causing of death.

In practice, what is particularly problematic is the access to such a previously expressed wish, or how does a physician access such a potentially previously expressed wish (if we are talking about a form of previously expressed wish that is not directly on file with the health care provider)? Today, there is no record where such wishes are kept. At the same time, there is no obligation for the doctor to establish in detail that the patient has previously expressed such a wish, unless the patient has communicated such a wish to the doctor or the emergency services or has subsequently expressed it during the hospitalisation.

Very often, it may happen that the patient has written down a previously expressed wish, with all the legal requirements, but it has not come into the doctor's possession and the doctor must therefore proceed as if no previously expressed wish had been made. A patient who has made a previously expressed wish may therefore be advised either to place such a previously expressed wish in a prominent place in their home (notice board, fridge, etc.), to inform their relatives and ideally to ensure that they have a copy of such a previously expressed wish to document.

Ruling of the Constitutional Court, Case No I. ÚS 1594/22

An interesting recent Constitutional Court ruling from July 2023 dealt with the refusal of an attending physician to resuscitate a 67-year-old patient after she had suffered a cardiac arrest. The patient was suffering from cancer, had undergone chemotherapy, had diabetes and kidney and lung disease. The physician did not initiate cardiopulmonary resuscitation in view of the underlying diagnosis and other multiple associated illnesses. Following the patient's death, the survivors sought non-pecuniary damages against the hospital for causing the death of a loved one.

Although this award did not directly address the patient's (dis)respect for her previously expressed wishes, it was particularly crucial in terms of doctors' communication with patients and their families, which is often a problematic part of doctors' "duties" in practice.

In the present case, the Constitutional Court ruled that compensation for the death of a loved one could not serve to compensate for the breach of the duty to communicate the "do not resuscitate" decision to the patient or her family. The failure to resuscitate in this case did not constitute a "non lege artis" procedure that was the direct cause of her death. The failure to prolong dying at the end of a long-term patient's life, whether for a few minutes or a few months longer, cannot be reconciled with direct killing.

In particular, the decision for medical practice resulted in a clarification of the procedure whereby a doctor should discuss such decisions within the team of healthcare professionals caring for the patient. In particular, this should be done in the context of abandoning intensive treatment and switching to palliative treatment, which the doctor should inform the patient himself. By properly informing the patient or the patient's family, similar situations can be prevented, particularly in cases where the patient has not previously indicated a wish to refuse resuscitation.

In conclusion:

In conclusion, it is evident that the previously expressed wishes represent an important tool in the field of medico-legal ethics, allowing the individual to express his/her will for the provision of health services in case he/she finds himself/herself in a situation of inability to express his/her consent or disagreement. Despite the legal framework, the debate on previously expressed wishes remains lively and requires careful examination in order to optimally reconcile respect for personal freedom with the need to protect life and ensure ethical standards in medicine.