La autonomía del paciente expresada en los documentos de voluntades anticipadasun análisis desde el bioderecho

Abstract

The autonomy of will as a principle is considered nowadays an essential right of the patient where patients’ dignity, part of the Human Rights theory, refers to the duty of physicians to offer patients timely attention, respect of their privacy and complete information so that they can exercise their freedom of choice. The Principle of Autonomy as a right implies abandonment in the doctor-patient relationship, which has been traditionally characterized by a paternalistic sense, to reach a space where an effective exercise of patients' rights is attained. In this new sense, the patient exerts a proactive role in the attention of the health-disease processes in which it is going to be inserted in, and in this way, based on the information provided, gives authorization to be or not to be given a certain medical treatment. Thus, the exercise of the patient's right to autonomy is promoted, assisting him to base his decision regarding the medical procedures to which he wishes or not to undergo, creating a framework of greater legal certainty in the health care process. For his part, the doctor who will intervene in medical care is obliged to respect the decisions taken freely and voluntarily by the patient. Therefore, this thesis is based on an analysis from the Bio-Law of Autonomy as a bioethical principle and as a right for patients, but at the same time it observes the duties and the rights of medical professionals, providing an integral approach to the theme of advance directive documents. An advance directive document is configured, in a form of prior consent, as a way to ensure medical care based on the ethics of maxims through the prospective exercise of autonomy. For this reason, the legal study of the documents of anticipated will as an expression of the Autonomy presupposes an important element of this thesis, since the legal regime must guarantee all the elements of form and content so that patients are guaranteed their right and also that physicians have legal certainty for the proper exercise of their profession. Finally, and as a fundamental part of the integral analysis of the legal institution of advance directive documents, it can be concluded that these documents have claimed the position of the patient as a free and autonomous subject that it must have always had and which was denied due to paternalistic medicine. Advance directives do not constitute an absolute right or an arbitrary principle as they have legal limits and ethical boundaries. Therefore, they have not turned the scale in decision making or in the medical relationship in favor of the patient but instead allow an appropriate balance humanizing the patient - physician relationship. Objectives Analyze the relationship between patient autonomy and advance directives from a historical and ethical-legal context. Examine the structure, form and content, as well as the legal development and organizational disposition of the advance directive documents. Discuss the development of advance directive documents and its influence within the patient - physician relationship as well as the interaction between different rights and principles involved in this correlation from the perspective of the Bio-Law. Methodology The methodology for legal research complies to the object of study, which in this case is Autonomy expressed in advance directive documents as a legal institution. Hence, all the processes, instruments and resources of methodology for legal research will be applied for the collection and treatment of information that legal science can provide on the legal regulation of the advance directive documents. Legal research as a methodology obliges us to primarily take the formal and material sources of legal science, in order to legitimize and persuade the arguments, allowing to support the current debates on legal issues that the proposal intends to solve. The traditional comparative method of study based on regulations and jurisprudential cases that lead to the recognition of the human and fundamental rights that must be included in the analysis made from the Bio-Law on the advance directive documents, and the study of the constructions and debates that exist of the ethical-legal doctrine, so that this reinforces the main argument that will support the debate on the conflict between rights and the conflict between bioethical principles applied to the scope of the advance directive documents.