BIOETYKA / WPROWADZENIE

BIOETYKA / WPROWADZENIE - Przeglądy aktów prawnych

Protecting human rights and dignity by taking into account previously expressed wishes of patients – Rada Europy rezolucja 1859 (2012)

1. There is a general consensus based on Article 8 of the European Convention on Human Rights (ETS No. 5) on the right to privacy that there can be no intervention affecting a person without his or her consent. From this human right flow the principles of personal autonomy and the principle of consent. These principles hold that a capable adult patient must not be manipulated and that his or her will, when clearly expressed, must prevail even if it signifies refusal of treatment: no-one can be compelled to undergo a medical treatment against his or her will.

7. The Assembly, recalling its Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and the dying, recommends that national parliaments, when legislating in this field, respect the following principles, in addition to those enshrined in the Oviedo Convention and Committee of Ministers Recommendation CM/Rec(2009)11:

7.1. self-determination for capable adults in the event of their future incapacity, by means of advance directives, living wills and/or continuing powers of attorney, should be promoted and given priority over other measures of protection;

7.2. advance directives, living wills and/or continuing powers of attorney should, in principle, be made in writing and be fully taken into account when properly validated and registered (ideally in state registries);

7.3. there should be an option to divide the function of representing the person between an attorney for property, and a separate person for health and welfare; provisions for the possibility of a public appointment should also be made in cases where the individual has made no appointment him or herself, where this is in the best interest of the individual;

7.4. prior instructions contained in advance directives and/or living wills which are against the law, or good practice, or those which do not correspond to the actual situation that the interested party anticipated at the time of signing the document, should not be applied;

7.5. advance directives, living wills and/or continuing powers of attorney should be accessible to all; thus, complicated forms or expensive formalities should be avoided;

7.6. capable adults should be encouraged to review at regular intervals (for example, once a year) the advance directives, living wills and/or continuing powers of attorney they have made, and should be able to revoke and/or change them at any time;

7.7. a system of supervision to fight abuse should be established under which a competent authority is empowered to investigate, and, if necessary, intervene, in particular in cases in which an attorney is not acting in accordance with the continuing power of attorney or in the interests of the granter;

7.8.surrogate decisions that rely on general value judgements present in society should not be admissible and, in case of doubt, the decision must always be pro-life and the prolongation of life.