Eficacia jurídica de las declaraciones de voluntad contenidas en los documentos de instrucciones previas sanitarias

Resumo

The advance health care directive document arose when the principle of autonomy was acknowledged. This document allows the patient to indicate how he or she wants to be treated when is no longer capable of manifest choices on which treatments or cares to receive at the end of his/her life, so as to avoid therapeutic cruelty. The advance health care directive document appeared for the first time in the USA, and it started to apply in Europe owing to the Oviedo Convention. Concerning Spain, the aforesaid document was regulated first by the different Autonomous Communities and then by state rules, specifically by Article 11 of Act 41/2002 on the patient's autonomy and the rights and duties in terms of clinical information and documentation of 14th November. This Article contemplates the creation of a National Registry of Previous Instructions, which makes these legal papers effective throughout the national territory. On the other hand, in the Region of Murcia are provided under Act 3/2009 on the Healthcare System users' rights and duties in the Region of Murcia and the Decree 80/2005 which approved the Regulation for Previous Instructions and its Registry in Murcia. In this research report, the advance health care directive document will be fully analyzed, starting with its specific formal and subjective requirements. Formal requirements oblige to express the previous instructions always in writing. The various procedures to formalize the document are also contemplated; these are before a notary, three witnesses or before a civil servant responsible for the Registry of Previous Instructions. As for the subjective requirements, the grantor must be of legal age, capable and free, although in certain cases it may be also granted by minors or persons with disabilities. Furthermore, the declaration of intentions that can be contained in the previous instructions will be discussed, such as those concerning health care and treatment, the disposition of the body or organs and the appointment of a representative to speak to practitioners. Act 41/2002 does not allow collecting any type of content from the grantor; there are some limitations due to instructions against the legal system, the lex artis or those instructions that are different from the ones contemplated by the patient when manifesting his/her will. Nevertheless, in addition to these limitations, the conscientious objection of health professionals is also taken into account. The intentions declared by the grantor in the advance directive document may change in one direction or another over time. Thus, provision is made for revocation, modification, or replacement of the former declaration of will. Practical application of these documents and consequences of non-compliance will be elaborated as well. In other words, the content of the advance directive document will be evaluated to figure out its real application, as well as the criminal, civil, financial, administrative, or deontological liabilities that may be incurred by healthcare professionals who fail to comply with them. The performance guarantee of the previous instructions document is essential to make it effective and to grant the necessary legal certainty to the patient, in order to exercise his/her recognized principle of autonomy. This legal form is not only necessary and desirable to respect the willingness of each patient, but also to facilitate the decisions related to practitioners or relatives.