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  • Prior Medical Instructions in Medical Law

    13. 06. 2017

    Prior medical instructions are an option for prudent patients who wish to make binding deci-sions about whether and in what manner medical aid will be administered to them in instances when they are not able to express their immediate wishes. Such a situation may include suf-fering a serious injury which leaves a patient unconscious or in cases of advanced degenera-tive diseases. A patient has the option of determining, for instance, that they do not wish to be repeatedly resuscitated or that they do not wish to be kept in a vegetative state with the help of medical equipment.

    The concept of prior medical instructions first appeared in the Czech law in 2011, when the Human Rights and Biomedicine Convention came into force. Its practical use, however, only became clear when the Health Services Act came was adopted. Subsequently, when the new Civil Code came into effect, prior medical instructions were subsumed under prior statements, as one of the options for a person to express their will in the case of expected legal incompetence.

    The Health Services Act says in its Section 36 that it is possible to express prior agreement or disagreement with the administration and manner of administration of medical service in case a patient becomes incapable of stating their wishes. Prior instructions will not be respected, however, if (i) they should cause active euthanasia, (ii) they should put another person in dan-ger, (iii) the health care provider did not have access to the patient´s prior instructions at the time of commencing treatment and following them would thus cause active euthanasia, (iv) there have been developments in medical care that would have rendered it probable that the patient would have decided differently when writing their prior instructions had the current medical options been available at the time.

    A prior statement may be made by any individual who is of age and legally competent and must be made in written a form, officially certified, and include a statement by a doctor ex-plaining the medical consequences of the decision. Section 38 of the Civil Code, in addition to allowing one to express prior agreement or disagreement with medical treatment methods in case of an individual´s inability to express their will, also allows for decisions to be made by another, particular, individual. In such a case, two witnesses with no interest in the matter must sign the statement. Such prior statements are binding for all healthcare providers. An-other possible way of expressing prior instructions is upon being admitted into hospital care and during hospitalization with the healthcare provider. In such cases, prior instructions are noted in the patient´s medical records and must be signed by the patient, a healthcare profes-sional and one witness. Such a prior statement is only binding for the healthcare provider with which it was written, however.

    Prior instructions are commonly used in the USA, for example, and are slowly becoming common in Europe as well. The practice is a current and much debated issue as evidenced by the fact that the European Court for Human Rights in Strasbourg reviewed the issue not long ago. In the Czech Republic, prior instructions are used rather rarely, but the legal provi-sions for how to properly prepare such statements are now rather clear.

    AK Felix a spol. provides legal services in medical law as well as other types of law and thus deals with issues concerning prior instructions. Stay tuned for more information on our web-site about an autumn cycle of breakfasts which will cover with this topic, among others.

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