Legal and Forensic Medicine || Advance Directives for Medical Decisions

  • Published on

  • View

  • Download


  • Advance Directives for Medical Decisions 71Fabiana Rego and Mara Cristina de Sousa Freitas


    This chapter provides an introduction to advance directives. It addresses the

    questions: What is an advance directive? What problems does it create? What is

    the current discussion about them?

    It will consider the different opinions of the authors: should they be binding or

    merely indicative? Why?

    Once we live in a democratic and plural society, the right to self-

    determination and autonomy should be respected, and that is why the authors

    agree with their binding effect, if preceded by the fulfillment of some require-

    ments which assure certainty and seriousness of intent:

    Areas of concern what legal and ethical problems do binding advance

    directives raise?

    Response there are many theses regarding this, and there is no direct or

    unique answer. There will be a collision of rights, with each one being analyzed

    in depth. In many cases, the right to life and autonomy will be in conflict,

    and it is not taken for granted that the right to life will always prevail.

    Summary After introducing the concept of the advance directives, ethical

    and legal issues will be raised, and the different points of view are analyzed,

    concluding in favor of its binding force, in the name of personal autonomy

    and human dignity.

    F. Rego (*)Trainee Lawyer, Law Degree and Master Degree in Civil Law thesis on Advance Directives and

    Personality Rights, University of Coimbra, Portugal


    M. Cristina de Sousa Freitas

    Lisboa, Portugal


    R.G. Beran (ed.), Legal and Forensic Medicine,DOI 10.1007/978-3-642-32338-6_113,# Springer-Verlag Berlin Heidelberg 2013


  • Introduction

    On 18 March 2005, the North American Courts finally allowed the withdrawal of

    the artificial life-prolonging medical procedures that kept Terri Schiavo alive but in

    a vegetative state. That only happened after years of inserting and removing feeding

    tubes and various court decisions and appeals, since 1998.

    On 9 February 2009, the Italian Court finally allowed the removal of the feeding

    tubes from Eluana Englaro, after 17 years in a vegetative state.

    These cases could have been prevented if advance directives were regulated.

    Should such directives be binding? Advance directives deal with human dignity

    and prospective autonomy of the patient, and the doctrine is not consensual: there

    are those who want them to have binding force highlighting the principle of the

    autonomy, and those who do not defending the right to life.

    The USA, pioneers on this subject, had already discussed, decided, and regulated

    the legal force of advance directives, promoting legal certainty in American society.

    In the authors opinion, the most important step is to regulate advance directives,

    being merely indicative or having binding force, since medical ethics already

    establishes that health-care professionals should always respect the patients will.

    Advance Directives

    Medical law is a recent legal field, originating after World War II, when the

    atrocities practiced by Nazi doctors became known. Since then, the regulation of

    medical practices and experimentation on people had been promoted, as has the

    protection of human life and human dignity.

    Since 1970, the right to autonomy of the patient, on the process of deciding

    whether, or not, to give certain treatment had been highlighted, and people have

    started to reject medical paternalism that once was welcomed. Medical and tech-

    nological advances have contributed to promote a longer life, perhaps much longer

    than what patients want, especially if such treatment leads to a life without quality.

    Thus, people have started to feel the need of having advance directives

    instructions given by a capable person, concerning the health care that he/she

    wishes to receive, or not, in a future situation of incapacity that makes him/her

    unable to express his/her will or take decisions independently. These instructions

    may be declared through a written document the living will or the appoint-

    ment of a health-care proxy, who will make health-care decisions on behalf of the

    person when he/she is no longer capable of expressing his/her will. In the first case,

    decisions are expressed by the patient him/herself; in the latter, decisions are

    provided by a third person, who was instructed by the patient to do so, with the

    patient either choosing to give him/her wider powers or more restricted powers. In

    both cases, self-determination is preferred to paternalist decisions.

    The first person referring to advance directives was an American lawyer, Luis

    Kutner (vide [1]), in the late 1960s. The USA was the first country protecting thepatients autonomy through Natural Death Act, 1976, when California recognized

    1218 F. Rego and M. Cristina de Sousa Freitas

  • the right to refuse the treatment for terminally ill patients. This happened after the

    legal battle that Karen Ann Quinlans parents who asked for the suspension of the

    artificial treatments, which kept their daughter in a persistent vegetative state

    alive had with the court. Later, in 1991, the Patient Self-Determination Actbecame a law. It informed patients about advance directives and encouraged them

    to have same.

    Their formal aspects and validity depend on the law of each state. There is a trend

    followed by the majority of the countries which agree that advance directives are only

    binding in the case of refusal of medical treatment; they should be made by an adult,

    over 18 years old; the expressed will should be autonomous and free of any coercive

    power; and there should be an informed consent. They should be written in a clear,

    never ambiguous, way otherwise the health-care professional will not be able to

    follow the instruction(s). There tends to be a defined period of validity, and it can be

    revoked at any time by any means. There is an additional note: if the content of the

    advance directive is against the law, public order, or leges artes, if science andmedicine have developed in a way that affects the content of the advance directive, or

    if there is concrete and strong proof that the patient, in the meanwhile, changed his/her

    will, then the advanced directive will lose its binding force.

    Living Wills

    Patients can write on their living wills that they allow the administration of

    treatment(s) and they also can choose them. In this case, the majority of the countries

    tend to consider them as merely indicative, because medicine and technology evolve

    day by day, and, at the time of its application, the chosen treatment could be not

    recommended or outdated. In this case, patients should be spared from unnecessary

    risks and suffering. Health-care professionals have the duty not to prescribe futile

    treatments to patients, contrary to their aim of promoting well-being. When there is

    no cure, treatment should be directed to assist healing and to celebrate life with

    happiness, hope, dignity, and respect for everyone, without discrimination (right to

    life), without inhuman treatment (right to personal integrity), and with the same

    social dignity and equality (principle of equality) that leads to the right to health

    protection and the duty to defend and promote health (right to health) ([2]). If the

    treatment is the recommended option, then, it will be applied. There will not be any

    obstacle to its administration, because this will not only respect the will of the

    patient but also the binding principle of beneficence/non-maleficence.

    Patients can also write on their living wills that they refuse the administration of

    general or concrete treatments. This can happen for several reasons: because the

    patient does not want invasive treatments (such as chemotherapy or skin perfusion),

    or he/she does not want to be kept alive by artificial means (such as artificial feeding

    or hydration), or he/she does not accept a blood transfusion for religious reasons

    (as with Jehovahs Witnesses).

    The greatest ethical and doctrinal problems relate to this refusal living will, on

    the grounds that granting these wishes could lead to the patients death.

    71 Advance Directives for Medical Decisions 1219

  • Health-Care Proxy

    The patient chooses the health-care proxy when he/she still has the capacity to decide

    for him/herself, to allow that person to represent him/her when he/she no longer is able

    to express his/her will, thus allowing that person to decide and choose on his/her behalf.

    This nomination has to be written and has to use clear language. The health-care

    proxy has to be a capable adult, and his/her decisions will only be considered when

    the patient is incapable to decide. This proxy document can be revoked at any time

    by any means by the patient when he/she is still capable. The proxy, nominated

    individual(s), can also refuse the nomination at any time.

    The patient can give wide powers to the health-care proxy, or he/she can restrict

    them. The first option, in some cases, may lead to a court intervention, if there are

    doubts on the meaning of the proxy. In case of uncertainty or contradiction, living

    wills will always prevail over health-care proxy decisions. The attorney may have

    a complementary role on the enlightenment of patients expressed wishes. That is

    why clear and specific proxies are the best option.

    To assure that his/her will is respected, when he/she no longer has capacity to

    decide for him/herself, the patient can always have both a written living will and

    a health-care proxy. As there are advantages and disadvantages to one and the other,

    this can be seen as the best option. Living wills are stagnant and do not follow the

    development of a sickness and the medicine science, while health-care proxy will

    allow a casuistic and more flexible decision. To seek the presumed will of the patient,

    the health-care proxy would be the person who could help the most, since he/she was

    chosen by the patient as the person who could understand and express his/her will the

    best. Living wills are written by the patient him/herself; it is not a third persons

    decision. For this reason, court intervention is less likely. Health-care proxy tend to

    have a merely indicative legal force, while living wills tend to be binding.

    Health-care proxy was regulated for the first time in the Uniform Probate Code(UPC) as enduring power of attorney, in 1969. It intended to follow the principle ofthe least restrictive alternative, since health-care proxies were one of those alterna-tives. Nowadays, it is regulated in the 50 North American states laws and several

    countries around the world. In the USA, there are two types of powers of attorney: thedurable power of attorney (DPOA) and the springing durable power of attorney(Springing DPOA). In the first, the attorney has legal powers to act from the moment

    the proxy is signed, even if the patient is still capable to make his own choices and

    decisions, and after he/she is no longer capable; in the second case, he/she will only

    have powers to decide after the incapacitation of the patient (this kind of proxy was

    specifically created for this purpose, since in the American legal system, proxies will

    only produce their effects while the principal is capable). In health matters, the latter

    seems to be the more suitable, because it does not seem justifiable that a third person

    makes such an important decision, related to fundamental rights such as life or

    individual autonomy, instead of the patient, when he/she is still capable of make

    his/hers own options according to his/her conscience, ideas, and values.

    Health-care proxy is also regulated in several international Acts. The ninth

    principle of the Recommendation of the Council of Europe no. R (99) 4,

    1220 F. Rego and M. Cristina de Sousa Freitas

  • on Principles Concerning the Legal Protection of Incapable Adults states that thechoice of any person to represent or to assist [the patient] should be taken intoaccount and, as far as possible, given due respect.

    Advance directives are a reliableway to assure the respect for the patients will when

    he/she is no longer capableof expressing it him/herself.Theycanbeneeded, for instance,

    in a case of a patient with several brain diseases or dementia, when the patient is

    incapable to decide about the treatments available. There will be a difficult question to

    answer: who decides? the physician or the family? Is it appropriate to ask the family to

    pass through such a hard process of decision about the death or life of a relative?What if

    there are different opinions of the familymembers?What if the doctors opinion and the

    familys opinion are different?Who should beheard?Whoknowswhat is the best for the

    patient?All these problemscanbe avoided if thepatient has an advancedirective, since it

    is the patient him/herself who expresses his/her will. It is the most direct source of his

    presumed will, avoiding third parties intervention. Several courts have arrived at the

    same conclusion: theKempten case law,Germany, 1993 (Anold ladyhad a strokewhichcaused irreversible brain damage. Her physician and son asked the nurses to stop

    artificial nutrition. They refused and accused them of attempted murder. The physician

    and son had to produce several witnesses who confirmed that the lady had previously

    said that shewould not havewanted to live in those conditions. It was proven, but on the

    verdict, the judge stressed out that itwould have been easier if the patient had an advance

    directive.) and Re T (Adult Refusal of Treatment [1993] Fam 95 (related to the bloodtransfusion to a young lady whose mother was a Jehovahs Witness: the father and the

    boyfriendasked the court to permit transfusion.Since therewasnoadvancedirective, the

    court ordered the transfusion. The judge called attention to the fact that any adult could

    refuse a treatment, even if it was in advance) (vide [3]).

    Common Cases

    People can have advance directives for several reasons (refusal or acceptance of

    treatments, nonresuscitation orders, organ donation, refusal to be informed), but there

    are some that are more common such as situations of persistent vegetative state and

    patients who follow the religion of Jehovahs Witnesses. These are sensitive subjects

    and evoke conflict between the right to life and the autonomy of the patient. Should one

    accept that a patient in a persistent vegetative state refuses treatments which would

    allow him/her to stay alive for several years (albeit in that condition)? Should one

    accept that a Jehovahs Witness refuses a blood transfusion that can save his/her life?

    Persistent Vegetative State (PVS)

    In countries where advance directives are already regulated, it is common to find

    living wills refusing artificial nutrition and hydration in case of PVS. Many patients

    express preferring to die, preserving their dignity, even in the last moments of their

    lives, than staying for an undefined period in those conditions.

    71 Advance Directives for Medical Decisions 1221

  • A PVS occurs when, after a coma, a patient still performs certain involuntary

    actions on his/her own such as breathing but he/she loses his/her cognitive

    capacity (vide [4]). The Multi-Society Task Force on Persistent Vegetative Statedefined it as a condition of complete unawareness of the self and the environmentaccompanied by sleep-wake cycles with either complete or partial preservation ofbrain stem and hypothalamic autonomic, functions. It is a state of wakefulnesswithout awareness (vide [5]). This statement was approved by the AmericanAcademy of Neurological Surgeons and American Academy of Pediatrics in

    1994 and is still the definition commonly adopted. It is explained as being

    a pathological process that has produced widespread damage to cerebral cor-tical neurons, thalamic neurons, or the white matter connections between thecortex and thalamus, but that largely spares brain stem and hypothalamic neu-rons (vide [6]).

    A patient in PVS is still technically alive. Thus, there are people who defend the

    sacred value of life, seen as Gods gift, and who do not understand, or accept, any

    justification to stop the administration of treatments that keep the person alive.

    There is a doctrine that prefers to recognize the value of a life with quality.

    Otherwise, one would condone futile and useless therapy, which is not a cure and

    which offend human dignity.

    There is jurisprudence supporting this second position since 1975. In the

    USA, the court allowed the withdrawal of artificial breathing support for

    Karen Ann Quinlan, who was 20 years old. These decisions only started to

    be more common after the Cruzan law case, in 1990, when the court decidedthat the previous will, expressed by the patient in a living will, should be taken

    into account and should be respected and the feeding tubes should be with-

    drawn. The United Kingdom agreed with these decisions, following them and

    promoting the patients best interests as per the Bland case, in 1993. There wasa similar case in The Netherlands, in 1990: 26 years after a medical malprac-

    tice caused Ineke Stinissen to be in a PVS, 5 years after her husband appealed

    to public expressing his and her will to stop life support, and 3 years after

    having asked for same in the court, the court allowed the withdrawal of life

    supports. After 1990s, many courts decided to respect the patient previously

    expressed will.

    If treatment is futile, not achieving either benefit for the patient nor its goal, good

    medical practice should order its suspension. This depends on a casuistic appreci-

    ation, and such decision should be taken only when physicians have the maximum

    certainty about the prognosis. Medical experience says that if after a year the patient

    does not recover any capacity of conscious expression, it is very hard that he/she

    will recover from the PVS.

    It does not mean that the patient is left by him/herself, without any health care.

    Palliative care should be administrated, to reduce the pain and suffering provoked

    by the illness and to try to provide the best well-being as is possible. Palliative care

    does not treat the illness, rather the person (vide [7]). World Health Organizationdefines Palliative Care as an approach that improves the quality of life of patientsand their families facing the problem associated with life-threatening illness,

    1222 F. Rego and M. Cristina de Sousa Freitas

  • through the prevention and relief of suffering by means of early identification andimpeccable assessment and treatment of pain and other problems, physical,psychosocial and spiritual (vide ).

    There is another problem concerning palliative care: is it treatment and therefore

    is it considered within a refusal advance directive?

    There are people who think this is so, because someone who is in a PVS already

    has a fatal pathology and such treatment, designed to overcome organ failure, can

    be seen as extraordinary means, and hence withdrawal would be acceptable.

    Precisely because PVS has no cure, there are people who defend the contrary,

    saying that they constitute basic care rather than treatment and cannot be refused to

    anyone. Dying of starvation and thirst can never be considered natural (vide [8]).There is another situation to be considered: sometimes, the administration of

    palliative care to relieve pain, in cases of terminal illness, also accelerates death, as

    a side effect (doctrine of double effect). It may be accepted, if the nature of the act is

    itself good (relieving suffering), if its intent is for good, not bad (aiming to relieve

    suffering rather than the death of the patient), and if the good effect outweighs the

    bad one with measures taken to minimize the harm.

    Good medical practice repudiates futile treatment. It is a deontological duty not

    to administer them and to respect human dignity. Patients should not need to

    express in their advance directives that they do not want the administration of

    such treatment, since it is already condemned by the medicine itself.

    Jehovahs Witnesses

    Jehovahs Witness is a religion which has more than six million believers around

    the world (vide They believe in Godand in the Holy Bible in which they find the doctrinal principle that teaches them to

    refuse blood transfusions in Genesis, 9, 4: But you shall not eat flesh with its life,that is, its blood; in Deuteronomy, 12, 2223: Only be sure that you do not eat theblood, for the blood is the life, and you shall not eat the life with the flesh; inLeviticus, 17, 10: If any one of the house of Israel or of the strangers who sojournamong them eats any blood, I will set my face against that person who eats blood andwill cut him off from among his people; and in Acts of the Apostles, 15, 20: . . .butshould write to them to abstain from the things polluted by idols, and from sexualimmorality, and from what has been strangled, and from blood. They refuse anytherapy which implies the direct introduction of blood or blood products into their

    circulatory system, even when they are facing a life-threatening emergency. The

    biblical law on blood was formally assumed on the 1 July 1945 by the WatchtowerSociety, and it stated that those who did not respect that law would be expelled. ManyJehovahsWitnesses found that law offensive of their freedom of choice, and in 2000,

    these rules were mitigated such that the transfusion of secondary blood products

    (albumin, globulin, interleukins) was allowed. Punishment was also revoked, but it

    was considered that if a Witness broke the law on blood, it would mean that he/she

    would be auto-excluding him/herself from the Watchtower Society.

    71 Advance Directives for Medical Decisions 1223

  • This touches upon freedom of religion and freedom of choice, and autonomy of

    the human person. If a Jehovahs Witness wants to follow his/her faith and the

    principles inherent to it, they should have the right to do it. They exercise their

    autonomy on the basis of their religious freedom. If they want to ensure that their

    wishes and their beliefs are respected, when they will be incapable of expressing

    them, they have the right to previously express their wishes in an advance directive,

    refusing any blood transfusion, which should be respected by the health-care


    This is not a right to die but rather a right to assert a freedom of conscience and of

    religion, confirming autonomy. Jehovahs Witnesses believe in a religion where the

    following of certain doctrinal rules and acting according to their faith is more

    important than their own life. For them, the spiritual and moral religious values

    that rule their lives are superior to their physical body and the body should succumb

    before those values. Using the words of Pereira, Andre ([9]) even if for many peoplein the society and for many doctors or lawyers, basing a therapeutic decision ona particular interpretation of the Bible seems absurd, outdated or irrational, ademocratic exercise of (medical) power must accept this possibility.

    For these reasons, health-care professionals should respect the patients deci-

    sion, since he/she was previously informed about his/her clinical situation and

    about the consequences of his/her refusal of treatment by a doctor, who should

    also ensure that the patient is informed about the changes adopted in 2000 by the

    Watchtower Society.There are alternative treatments that allow Jehovahs Witnesses to survive

    without a blood transfusion with some opinions stressing arguments of

    a utilitarian and economic nature. These alternative treatments are very expensive,

    and it is not fair that all the taxpayers should pay for them. This equates to an issue

    of true human rights and principles: the right to health (which, according to the

    World Health Organization, is a state of complete physical, mental, and social well-

    being and not merely the absence of disease or infirmity vide Preamble to theConstitution of theWorldHealthOrganization, 1948), to the freedom of conscienceand of religion, the autonomy, and the human dignity. It is justified to apply here the

    principle of the positive discrimination, based on religion, and society should help

    respect those values. It is true that resources are scarce and that the health-care

    system faces a situation of financial and economic unsustainability which is why the

    use of those treatments should consider the limits of human, technological, and

    financial resources in the public health system.

    Another very sensitive issue, concerning the refusal of blood transfusions for

    therapeutic proposes by Jehovahs Witnesses, is when they are younger than

    16 years old. Legally, since they are not adults, their decisions should be made by

    their parents, who may refuse blood transfusion, putting the live of their son/

    daughter at risk in which may constitute a death sentence. This represents

    a decision by a third person deciding in accordance with his/her/their own beliefs

    and not necessarily according to the will of the patient.

    In most jurisdictions, the patient, under 16 years old, may not have legal capacity

    to act or to consent may not have developed his/her religious personality nor the

    1224 F. Rego and M. Cristina de Sousa Freitas

  • maturity to make a decision that expresses his/her personal identity, and it cannot be

    defined or decided based on the religious beliefs of the parents of the child. The

    decision should be taken according to the childs best interests and not according to

    personal ideals or interests of the parents. If the parents keep their decision on the

    refusal of blood transfusing and when such decision causes the death of the child,

    the health-care professionals should appeal to the court. If the treatment is urgent,

    the physician can act, saving the life of the patient, according to the principle of


    When the patient is older than 16 but younger than 18, if the patient shows

    evidences of having a well-defined personal identity and psychological maturity to

    take decisions, based on his/her free and conscientious autonomy, his/her will

    should be taken into account.

    The Doctrine: Binding or Not Binding?

    Opinions differ in what concerns the binding force of advance directives.

    There is one main question to discuss: according to Pereira, Andre (videAdvance Directives. . ., op.cit.), the pillars of consent and refusal of treatmentdepend traditionally on the following dogmatic structural elements: (1) capacity toconsent (or competence), (2) freedom from any pressure, (3) information, and (4)updated declaration of the will.

    Consent, or refusal, may not be recent or updated, and there may be

    a considerable time gap between the moment when the advance directive (the

    refusal) was enacted and the real time of the situation and the time of the treatment.

    Those who refuse the binding force of advance directives state that consent, at

    the time of appliance, may not be up to date. The patient may have declared a will in

    the past that is no longer his/hers. In case of doubt, the principle of beneficence

    or the favor vitae must prevail. The question arises whether the patient wouldmaintain his/her will if he/she was aware and capable of expressing it. The options

    taken, when someone is in good health, may be different from those taken when

    people face the real situation. The patient who wrote his/her advance directive,

    when he/she was in a different physical and emotional condition, not having yet the

    experience of the illness, may be at odds with any decision made once experiencing

    the condition which can be crucial for his/her decision.

    There may also emerge that situation in that health-care professionals could be

    induced into a wrong presumption, in case of, for instance, the patient who has

    forgotten to repeal the advance directive or if there was a medical development that

    could significantly change the circumstances originally planned (such as new treat-

    ments could have been developed, allowing the cure of fatal pathologies). That is

    why some authors defend the principle in dubio pro vita, since death would mean theirreversible loss of the human autonomy. If the physician chooses to preserve life,

    then, if the conflict persists, the patient will be able to decide according to his/her

    current will (vide [10]). That is why advance directives should only have indicativevalue. This idea was expressed by Rehnquist judge, in Cruzan case law

    71 Advance Directives for Medical Decisions 1225

  • (where parents of a woman in PVS asked to withdraw the artificial life support):

    the rule in Missouri State prohibited the withdraw of the artificial life support with

    the intent to protect the patients, because in spite of admitting that there could be

    a patient who did not want to live and was kept alive, it prevented mistakes in the

    opposite direction, which means, it allowed to keep alive, people who really

    wanted to live. An error in the latter would be much more serious than in the

    former, since if the patient died, the mistake could not be rectified, while in

    the first case it could. Ronald Dworkin calls the attention for the interpretation

    of the best interests of the patient. The judge assumed that there would not be any

    serious damage if the physician kept the person alive against the will that he/she

    previous expressed but if he had assumed that keeping that person alive against

    his/her will would be extremely offensive to human dignity, his argument would

    fail (vide [11]).The arguments of authors who defend the indicative value of advance directives

    can easily be discarded, for several reasons. The change of circumstances may be

    foreseen by the law, and they would have to be taken in account (most part of the

    laws that are in force and those which are being discussed in the national parlia-

    ments preview that situation. An example of this is Article 25, paragraph (4) Anadvance decision is not applicable to the treatment in question if (c) there arereasonable grounds for believing that circumstances exist which Patient did notanticipate at the time of the advance decision and which would have affected hisdecision had he anticipated them Mental Capacity Act, 2005; or article 14,paragraph (1) The physician should not respect the Advance Directive when it isclearly outdated according to therapeutic and medical progresses and it is clearlypresumable that the patient would not wish to maintain that directive Draft-Lawof Portuguese Socialist Party, no. 413/XI/2.a) In this exceptional case, they mightallow a treatment contrary to the one specified in the advance directives.

    Then, it could be changed or repealed at any time.

    If there is no evidence that demonstrates that the patient had changed his/her

    mind or that there was a change of factual circumstances, no one should presume

    that his/her will could have changed. Joining Andre Dias Pereira in his opinion, the

    health-care professional should not believe that the state of unconsciousness of the

    patient builds a presumption toward the withdrawal of the previously expressed will

    (vide ANDRE DIAS PEREIRA, Advance Directives. . ., op. cit., 168). It is mostthe opposite: to determinate the presumed will of the patient, we must rely on the

    statements he/she said before his/her state of incapacity, as they are the most direct

    source of his/her will, and not presume precisely the opposite that his/her will is

    contrary to what he/she had written. This way, following the previous instructions

    of the patient, the activity of the health-care professional will not be illegal, once it

    is based on presumed consent (e.g., art. 39 of the Portuguese Criminal Code).

    Strictly speaking, the consent to medical interventions will never be updated,

    because the expression of the patients consent will always be prior to the exact

    moment when the scalpel starts to cut. So when should we consider that the consent

    is updated? When expressed 2 years ago? 1 h ago? 5 min? The consent must be up

    to date, but recentness should be understood as a logical concept and not as

    1226 F. Rego and M. Cristina de Sousa Freitas

  • a simple chronological (time-connected) on (vide Comitato Nacionale Per LaBioetica, Opinion of 18 December 2003 apud ANDRE DIAS PEREIRA, AdvanceDirectives. . ., op.cit., 169).

    Also the Article 156 paragraph (2) of the Portuguese Criminal Code criminal-izes the medical interventions that disrespect the previous will expressed by the

    patient. If the doctor knows that the patients will was to refuse that specific

    treatment, it cannot be administrated, in the name of the principle of freedom of

    will and autonomy of the patient.

    The period of incapacity is still a period of life of the person, and one cannot

    understand why someone other than the patient would be allowed to decide how

    he/she wants to live it.

    Authors also claim the fundamental right to life to justify refusal of the binding

    force of advance directives. This right is written down in several national and

    international rules, deserving an absolute protection. It means the right not to be

    killed, supporting the prohibition of homicide and death penalty and the principle indubio pro vita or the principle of beneficence.

    Should there be an obligation to live? The answer is not.

    The Portuguese Constitution (as well as constitutions worldwide) recognizes, in

    the Article 1, the value of human dignity and does not set up any hierarchy among

    the right to life (Art. 24), the right to personal integrity (Art. 25), or other personal

    rights (Art. 26). The Convention on Human Rights and Biomedicine clearly estab-lishes the primacy of the dignity of the human being and the principle of autonomy

    (Article 1 and Chapter II), as well as the Universal Declaration on Bioethics andHuman Rights (2005)which sets up the principles of the human dignity and humanrights 1. Human dignity, human rights and fundamental freedoms are to be fullyrespected. 2. The interests and welfare of the individual should have priority overthe sole interest of science or society (Art. 3) and autonomy and individualresponsibility The autonomy of persons to make decisions, while taking respon-sibility for those decisions and respecting the autonomy of others, is to be respected.For persons who are not capable of exercising autonomy, special measures are tobe taken to protect their rights and interests (Art. 5).

    There are other fundamental rights, and once there is not any hierarchy, the right

    to life should not prevail always above freedom and self-determination. There has

    to be a harmonization or a practical balance between them (vide [12]).

    Some Ethical Considerations

    Citing the words of the fathers of the principles of medical ethics, Beachamp and

    Childress ([13]), medical ethics enjoyed a remarkable degree of continuity from thedays of Hippocrates until the middle of the twentieth century.

    The specific changes about the autonomy and the development in the biological and

    health sciences led to an essential reflection about the conceptions of the moral obliga-

    tions of health-care professionals and society, in order to prevent disease and injury and,

    at the same time, get together the needs of the vulnerable and injured people.

    71 Advance Directives for Medical Decisions 1227

  • These authors, to solve the latent conflict between different ethical theories

    (utilitarianism, deontology) idealized a set of principles that, in their opinion,

    would be the structural pillar of health-care ethics.

    Those principles respect for autonomy, beneficence and non-maleficence,

    justice, and vulnerability do not have a particular hierarchical order ([14]); they

    must be interpreted case by case and according to the specific situation of the


    All of these principles involve a conversation about the needs and desires of thepatient or, in the case of justice, members of society and community. The principles

    are intended to be a guide in health-care practice.

    In the case of autonomy, one is required to determine the wishes of the patient in

    order to protect his or her autonomy. This principle was born in the doctrine of

    human dignity and fundamental human rights. It represents the exercise of personal

    freedom. The word autonomy, derived the Greek autos (self) and nomos (rule,governance, or law), originally referred to the self-rule or self-governance of

    independent city-states. Autonomy has since extend to individual has acquiredmeanings as diverse as self-governance, liberty, rights, privacy, individual choice,freedom of will, causing ones own behavior, and being ones own person (videBEACHAMP, Tom and CHILDRESS, James Principles of Biomedical Ethics,op. cit.).

    In the case of beneficence and non-maleficence, one must determine the patients

    views of what does and, does not, count as good to be pursued or harm to be


    In the case of justice, one must follow due process in order to determine fair

    limits on health care that will be generally accepted (fair distribution of resources in

    society distributive justice). Justice is not simply a matter of assuring the

    greatest happiness of the greatest number of people, as though the needs of

    the majority are paramount. A just and equitable policy must also be sensitive to

    the needs of minority and marginalized groups who lack the social power to lobby

    for their share of health resources and capacity to get access to them.

    Respect for the autonomy of patients changed their position within the clinical

    relationship, from a complete dependence to an active participation patient

    empowerment. In these terms, the transition from medical paternalism to autonomy

    has brought a new responsibility for health professionals the duty to share

    information and discuss alternatives with the patient who must make the final

    decision regarding treatment.

    Respect for human dignity means to promote the ability to think, decide, and act.

    Advance directives arise as a means of promoting patient autonomy when he/she is

    no longer able to express it themself and to protect the individual from the situation

    that he/she does not wish for his/her life, or the end of it.

    How can the advance directive binding or not binding be used as a tool for

    dealing with future situations involving illness, in a way that still protects and

    guarantee human autonomy and dignity?

    The intention is not to suggest that autonomous decisions and self-determination

    in medical and nursing contexts are only possible with an advance directive, but it is

    1228 F. Rego and M. Cristina de Sousa Freitas

  • important that the option of an advance directive should be available (such as easy

    access, help in the process, simple language, correct information about the eventual

    situations) for everyone, because it can be very helpful for the participation in the

    decision-making process of the health-care professionals in situations of life limit

    (respecting the will of the patient and so, contributing to the so-called dignity at the

    end of life).

    One of the important topics to consider for this reflection is the ethical basis for

    the advance directive: one should consider, not only the patients right to refuse

    medical and possibly also nursing interventions, but also the duties of beneficence

    toward the person concerned. Considering the bioethical principles, one must

    consider patient autonomy and beneficence. Accordingly, the advance directiveis primarily the expression of a right to refuse medical interventions that violatea persons (physical and psychological) integrity. This right, based on theuncontentious principle of patient autonomy, is to be recognized from an ethicalviewpoint. However, it does not absolve physicians, nurses, and other health-careprofessionals, or relatives or other intimates, from their duties of beneficencetoward the patient. Moreover, the right to refuse treatment is to be distinguishedfrom a right to request medical and nursing interventions.

    Continuing, the principle of beneficence is also applicable concerning anotherpoint of view; it means that the physician continues to have responsibility for thetreatment and to take care of patients who lack capacity. The advance directiveserves to weight the perspective from which the medical or nursing decision is tobe taken namely, primarily from the perspective of the patient, whose wishes havebeen formulated in advance.

    It is also important to discuss the requirements which must be met, so an advance

    directive can act as an instrument for the expression of wishes in advance. The

    fundamental requirements for an advance directive, according to the Swiss NationalAdvisory Commission on Biomedical Ethics is the continuity of the person, themental capacity/incapacity, and the power of anticipation. It is said that in ethicalterms, continuity of the person is a necessary condition for the validity of anadvance directive. In other words, the instructions contained in an advance direc-tive may only be carried out if the person affected by its implementation is the sameperson as the author of the directive. It is explained that this requirement mayappear to be trivial. However, with regard to dementia, doubts have been expressedas to whether such continuity is in fact occurring. Progressive dementia may beassociated with strong or radical changes in behavior: for example, people withdementia may be found to be more aggressive or gentle, more cheerful, or anxious.This way, for relatives, they seem to have become a different person.

    Capacity is also essential to the validity of an advance directive, so that one

    considers that only a person who has mental capacity can draw up a legally validadvance directive, and the directive is only to be used as a basis for decision-making in cases where the person has become incapacitated or cannot express anypreferences owing to loss of consciousness (. . .); incapacity is not to be deducedautomatically from a diagnosis, for example, of dementia. Incapacity always needsto be carefully assessed with reference to a specific situation. It should be written

    71 Advance Directives for Medical Decisions 1229

  • and filed who carried out the assessment and how it was carried out (i.e., whatcriteria and methods were used).

    Concerning the last requirement the power of anticipation it is said that

    to draw up an advance directive, people must be able to imagine future illnesses.Only then they will be able to formulate their wishes in advance. It can be assumedthat mental capacity includes the power of anticipation.

    In practice, health-care professionals, occasionally, put into question the valid-

    ity of an advance directive because of the following questions/concerns: Whenwriting the advance directive, did the patient actually envisage the clinicalsituation which has now arisen? Were they able to project themselves into andadequately imagine the condition they are now in? And would implementation oftheir prior instructions really reflect their wishes. Maybe we could say that thereis always a gap between the reality and what we imagine and even, what weexperience, so can we talk about a decision with full knowledge of the facts, evenif we are capable to decide? On the other hand, how can we decide abouta hypothetic situation and at the same time about a hypothetic decision that canchange our life to death?

    Another key point is the limits to the authority of advance directives. For theSwiss National Advisory Commission on Biomedical Ethics, the starting point forreflections on the limits to the authority of an advance directive is the fact thatconflicting ethical obligations arise in practice. Alongside the obligation to respectthe patients right to refuse interventions, there is an ethical obligation to satisfy thebasic needs of the person concerned. (. . .) With this perspective they intend to helpaddress the question of how, from an ethical point of view, can these two obliga-tions be weighed up against each other, or how far the patients right to refuseinterventions may legitimately be extended. The overarching goal remains thestrengthening of the autonomy of a person with dementia by ensuring that theinstructions in an advance directive are either followed or, conversely, corrected(vide [15]).


    The active application of the bioethical principles in a real situation is essential

    to the legal application of advance directives. There must be always a bridge

    between law, ethics/bioethics, and medicine.

    That is why one should protect, above all the principle of personal autonomy,

    the primacy of the human being. The European Court of Human Rights had

    defended that there cannot be any intervention in the private sphere of the person

    without his or her consent: the patient must not be manipulated and that his orher 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.

    It is fundamental to say that the informed consent the principle that

    underpins the sector of patients rights and bioethics is the expression of the

    individuals autonomy. For that reason, in end-of-life situations, as long as the

    patient can express his or her will, he or she must participate in the decisions that

    1230 F. Rego and M. Cristina de Sousa Freitas

  • determine his/her treatment or his/her nontreatment. The right to withdraw

    consent is the corollary to the principle of giving consent.

    Advance directives evoke the patients will and his/her autonomy, thus, his/

    her dignity, sense of life, way to die or not live, and that is why they should be

    accepted and regulated.

    Advance directives can help and contribute to humanization of the health-

    care system and humanization of the health-care practice and essentially, to

    help health-care professionals, family, or friends in the decision-making process,

    because sometimes it is not easy, in real situations, to make a decision that

    involves such a delicate situation with vulnerability of the individual (sometimes

    also that of the health-care professional) taking its nadir effect, and, for thesesituations, the law has no appointment, so one has to rely on the technical,

    scientific, and human competence of each health-care professional, ensuring the

    best health care and best interests previously expressed by the person.

    Ready Reckoner

    What is an advance directive? Instructions given by a capable person, concerning the

    health care that he/shewishes to receive, or not, in a future situation of incapacity that

    makes him/her unable to express his/her will or take decisions independently.

    What is the current discussion about them? Professionals from several fields are

    discussing if they should be binding or merely indicative.

    The meaning of the right to self-determination and autonomy in the health-care

    practice, concerning advance directives. Patients should be able to make their

    own decisions, preceded by an informed consent, which should be binding.


    Clinical Neuropsychology and the Assessment of CapacityLegal Aspects of End-of-Life Decisions in NeonatologyWills and Estates: Succession Law and Testamentary Capacity


    1. Maclean A. Advance directives and the rocky waters of anticipatory decision-making. Med-

    ical law review. 2008;16(1):122. Spring.

    2. Moniz H. Legislation on medical law. 1st ed. Coimbra Editora; 2008.

    3. English V. The UK experience of living wills and Koch HG. Advance directives in Germany.

    In: Autodeterminarsi nonostante. A cura di Roberta Dameno, Guerini e Associati; 2002.

    pp. 6870 and 106107.

    4. Hottois G, Missa JN. Nouvelle encyclopedie de bioethique. De Boeck Universite; 2001. p. 387.

    5. The multi-society task force on PVS. Medical aspects of persistent vegetative state. In: The

    New England Journal of Medicine. vol. 330, no. 21. 1994. p.1499.

    71 Advance Directives for Medical Decisions 1231

  • 6. James LB. The vegetative state: practical guidelines, medical decision making, and ethical

    dilemmas and ethical issues in the persistent vegetative state patient. In:

    7. Dantas E. Direito medico. GZ Editora; 2009. p. 214.

    8. Ascencao, Ramos JP, in Declaracao, p.1 apud Brito TQ,Mata, PS,Neves JC,Morao H. Direito

    penal parte especial: licoes, estudos e casos. Coimbra Editora; 2007. p. 124.

    9. Pereira AD. Advance directives: binding or merely indicative? Incoherence of the Portuguese

    national council of ethics for the life sciences and insufficiencies of newly proposed regula-

    tion., In: European journal of health law, vol. 16. 2009. p. 165171.

    10. AndradeMC.Consentimento emdireito penalmedico: o consentimento presumido. In: Estudos

    jurdicos de coimbra, coord. Luciano Nascimento Silva, ABDR, Jurua Ed.; 2007. p. 57.

    11. Dworkin R. Lifes dominion. Vintage Books, NY; 1994. p. 196197.

    12. Canotilho J. Direito constitucional e teoria da constituicao. Coimbra; 2003. p. 1225.

    13. Beachamp T, Childress J. Principles of biomedical ethics. 5th ed. Oxford University press;


    14. Serrao D, Nunes R. Etica em cuidados de saude. Porto Editora; 1998.

    15. Brauer S. Swiss national advisory commission on biomedical ethics NEK-CNE: Advance

    directives ethical considerations concerning the new adult protection law, with particular

    reference to dementia Opinion No. 17/2011. Bern; May 2011.

    Further Reading

    Andorno R. Pessoa substancia ou pessoa consciencia? Um risco para os direitos do homem.

    In: Direitos humanos teorias e praticas, org. Almedina: Paulo Ferreira da Cunha; 2003.

    Ascencao J O. Direito e bioetica. In: Revista da ordem dos advogados. Ano 51, Vol. II. Julho 1991.

    Beauford I. Patients in a persistent vegetative state: a Dutch perpective. In: New England journal

    of medicine. 9 June 2005. p. 23732375.

    Costa J F. O fim da vida e o direito penal. In liber discipulorum para jorge de figueiredo dias.

    Coimbra Editora; 2003. P. 759807.

    Cupis A. Diritti della personalita`. Dott. A. Giuffre` Editore. 1950.

    Fagerlin A, Schneider CE. Enough: the failure of the living will. In: Hastings center report. 2004;

    34 (2).

    Faria MPR. A lei do sangue: ou o conflito entre o respeito pela autonomia da pessoa e a defesa da

    vida e da integridade fsica. In: Direito e justica, vol. XII, tomo I. 1998.

    Garcia M GFPD. Liberdade de conscieia e liberdade religiosa. In: Direito e Justica, Vol. 11,

    Tomo 2. 1997. P. 7381

    Giammarinaro MG. La carta di autodeterminazione: un Aiuto allexerczio della Professione.

    In: Dameno R, editor. Autodeterminarsi nonostante. Guerini e Associati;2002. P. 4152.

    Green DST, Mackenzie CR. Nuances of informed consent: the paradigm of regional anesthesia.

    In: HSS J., 3(1). Feb 2007. P. 115118. Published online: 3 Jan 2007. http://www.ncbi.nlm.nih.


    Gouveia JB. A afirmacao dos direitos fundamentais no estado constitucional Contemporaneo.

    In: Direitos humanos: teorias e praticas, org. Almedina: Paulo Ferreira da Cunha; 2003.

    Hendriks A. Editorial: wrongful suits? Suing in the name of Terri Schiavo and Kelly Molenaar.

    In: European journal of health law. 12, n. 2, Junho; 2005.Loureiro J. Metafora do vegetal ou metafora do pessoal: consideracoes jurdicas em torno do

    estado vegetativo cronico. In: Cadernos de bioetica. 8. 1994. P. 2765.

    Loureiro J. Saude no fim da vida: entre o amor, o saber e o direito II Cuidados., In: Revista

    Portuguesa de bioetica, n. 4. 2008. P. 3783.Kolarik RC, Arnold RM, Fischer GS, Hanusa BH. Advance care planning: a comparative of values

    statements and treatment preferences. In: Journal of General Internal Medicine, 17. 2002.

    P. 618624.

    1232 F. Rego and M. Cristina de Sousa Freitas

  • Maclean A. Advance directives, future selves and decision-making. In: Medical Law Review, 14.

    Autumn 2006. p. 291320.

    Maclean A. Autonomy, consent and persuasion. In: European Journal of Health Law, 13, n. 4.Dec 2006. p. 321338.

    Martins JCAM. A autonomia do doente em contexto de urgencia/emergencia. In: Revista

    portuguesa de bioetica, n. 2. Setembro 2007.Nunes R. Artigo 4 obrigacoes profissionais e regras de conduta olhar o presente, projectar o

    futuro. In: Direitos do homem e biomedicina. Instituto de Bioetica, UCP, Universidade

    Catolica Editora; 2003. p. 5572.

    Nunes R. Humanizacao na doenca terminal. In: Comissoes de etica: das bases teoricas a` actividade

    quotidiana, coord. Maria do Ceu Patrao Neves, Centro de Estudos de Bioetica/Polo Acores;

    1996. p. 131145.

    Oliveira G. O fim da arte silenciosa. In: Temas de direito da medicina. Coimbra editora;1999.

    Oliveira G, Pereira AD. Consentimento informado., Coimbra: Centro de Direito Biomedico;2006.

    Orsi L. La difficulta` nella comprensione delle volonta`. In: Autodeterminarsi nonostante. a cura di

    Roberta Dameno, Guerini e Associati;2002. P. 5357.

    Palomero IG. Etica del final de la vida: asistencia al paciente terminal. In: Gomez H, Jose MGC,

    Carmen V, editors. Bioetica, perspectivas emergentes y nuevos problemas.Tecnos; 2005.

    Pereira AD. O consentimento informado na relacao medico-paciente, estudo de direito civil.

    Coimbra Editora;2004.

    Rodrigues ACG. Consentimento informado: pedra angular da responsabilidade criminal do

    medico. In: Direito da medicina, I. Coimbra Editora;2002.

    Rodrigues JV. O consentimento informado para o acto medico no ordenamento jurdico Portugues

    (elementos para o estudo da manifestacao da vontade do paciente). Coimbra Editora;2001.

    Santosuosso A. Il consenso informato: questioni di principio e regole specifiche. In: Il consenso

    informato, tra giustificazione per medico e diritto del paziente. A cura di Amadeo Santosuosso,

    Raffaello Cortina Editore;1996.

    Serrao D. Consentimento informado. In: Bioetica, coord. Lus Archer, Jorge Biscaia e Walter

    Osswald, Editorial Verbo; 1996.

    Serrao D. Relacoes entre os profissionais de saude e o paciente. In Comissoes de Etica: das bases

    teoricas a` actividade quotidiana, coord. Maria do Ceu Patrao Neves, Centro de Estudos de

    Bioetica/Polo Acores; 1996.

    71 Advance Directives for Medical Decisions 1233

    71 Advance Directives for Medical DecisionsIntroductionAdvance DirectivesLiving WillsHealth-Care Proxy

    Common CasesPersistent Vegetative State (PVS)Jehovahs Witnesses

    The Doctrine: Binding or Not Binding?Some Ethical Considerations

    Ready ReckonerCross-ReferencesReferencesFurther Reading


View more >