Advance directives : the surrounding legal issues

Abstract

An Advance Directive upholds the patient's right to involvement in end-oflife medical decisions, which respects the principle of patient autonomy and in turn embodies in the requirement of informed consent for any medical intervention. While Advance Directives are legally accepted and widely recognized in the clinical practice of United States, in most European countries it is still unusual to base clinical decisions on patient's previously expressed wishes. This means that, from a legal point of view, the validity of Advance Directives is unclear in many European states, including Malta. Essentially, this legal document seeks to uphold the rights of the patient when he is no longer competent to give his informed consent to medical treatment proposed by his physician. As a fundamental principle, a patient may not refuse treatment which is authorised by law through an Advance Directive. More importantly, any instructions given by the patient have to be according to the law of the respective country. An Advance Directive helps circumvent situations in which the family members or the doctor himself are required to make end-of-life medical decisions on behalf of the patient, which decisions may be conflicting with the views or the beliefs of the patient. To the contrary, an Advance Directive assists the patient, the physician as well as family members when faced with increasingly complex health care decision-making. This also encourages a stronger communication process between the physician and his patient, and a wider exchange of information and knowledge towards more appropriate medical decision-making free from controlling influences. Following an examination of the legal issues surrounding Advance Directives, complemented with a critical analysis of several legal systems in which Advance Directives are applied, recommendations have been put 4 forward in favour of concrete actions towards achieving legal certainty, by legislating upon Advance Directives as part of the medical care plan of a patient. This would help foster a beneficial environment for the patient, his relatives or close friends, and his physician, where shared decisionmaking is based on respect for the dignity of the human person as well as the protection of his rights when he is not able to express his will freely.