Commentary on Advance Directives Concerning Treatment

Author: Prof. Giuseppe Dalla Torre

Commentary on Advance Directives Concerning Treatment

Prof. Giuseppe Dalla Torre

Getting a handle on 'advance directives'

The opinion of the Italian National Bioethics Committee on Advance Directives concerning Treatment has now been published after lengthy preparatory work. It has at last clarified a problem that has been the subject of a far-reaching debate for years and whose scope has not always been clear.

In particular, the document provides clear indications not only to health-care workers, rightly concerned with their own professional responsibilities, but also to public opinion, split between the equally just anxiety to avoid on the one hand the dangerous aberration towards euthanasia and, on the other, aggressive medical treatment, while safeguarding the bioethical and juridical principle of informed consent to medical treatment.

This document treats a problem that can arise: whether a person should express in advance one's own wishes regarding unwanted treatment, in the case of no longer being able to express informed consent due to illness or injury.

This is an extremely sensitive problem. The National Bioethics Committee offers criteria for its interpretation and evaluation, as well as valuable, balanced and practical recommendations.

For an adequate assessment of opinion, two points must be considered.

The first concerns new features of the problem under examination, They justify and indeed require direct intervention in order to guide medical practice according to ethics and the law.

The new features stem primarily from the gradual adaptation of medical interventions to the model of "informed consent" regarding medical treatment.

This model expresses greater sensitivity to respect for the dignity of the person, who is actively involved in his or her own treatment. It has been confirmed in constitution
al, supranational and international measures, sanctioning the principle of therapeutic freedom.

The newness of the problem, however, also stems from the fact that medical progress, in treatment and in diagnosis, is giving rise to even broader medical options which have both positive and negative dimensions.

Consequently, a doctor cannot be left solely responsible for choosing treatment. In the face of a wide range of possible treatments for the same illness, for example, the decision might be not to choose the most expensive treatment which could reduce the patient's family to dire want, or a treatment that is contradictory to personal religious belief or which is most painful or invasive.

Purpose of advance directives

Among the innovations, the vast array of today's medical possibilities should also be recalled. These include, for example, in the realm of intensive care, the possibility of keeping an unconscious person alive for a long time, with the advantage of potential recovery but the risk of aggressive medical treatment.

The second consideration concerns the fact that, if properly understood, advance directives for treatment have nothing to do with euthanasia, whether active or even passive. Indeed, such directives aim at making possible a personal relationship between doctor and patient in an exceptional situation.

In short, in the dramatic situation of an individual incapable of making decisions, an advance directive attempts to guarantee the role normally carried out through informed dialogue between patient and physician, aiming to ensure that the patient's true interests, overall health and well-being prevail.

As the document of the Italian National Bioethics Committee clearly states, the purpose of advance directives is to overcome "the isolation of those who cannot express themselves and the loneliness of those who must decide".

Therefore, the National Bioethics Committee expresses the opinion that advance directives for treatment are legitimate when they comply with specific subjective and objective requirements that must exist concurrently.

First, from the subjective viewpoint, an inviolable condition is that such directives can only be drafted by persons who have come of age. They must be capable of understanding and desiring, must be informed and autonomous, and in general must not be subjected to any family, social or environmental pressure.

The importance of this requirement is quite clear since, as has been said, advance directives explain the wishes of the patient who is no longer capable of self-expression and who obviously cannot be replaced by anyone else.

The objective conditions are more numerous and varied.

First, advance directives must not have euthanasia as their goal, which is contrary to positive law, the rules of medical practice and deontology.

This fundamental explanation nonetheless clarifies that the directives in question are no more than a particular procedure, important in the case of a patient's inability for self-expression or demonstrating personal wishes concerning medical treatment — wishes which, as in every doctor-patient relationship, call for the doctor to respond responsibly in the perspective proper to the medical art, whose treatment is for human life and not its suppression.

Advance directives: clear, personal

There is then the requirement that declarations of previously expressed wishes be personalized and may not consist merely of the addition of a signature to a form or printed document: they must be written in such a way as to express a positive desire on the patient's part and not mere adherence.

Moreover, they must not encourage generic, ambivalent or incomplete directions which leave room for doubt concerning their application.

Finally, the declarations must indicate as clearly as possible the clinical conditions that will require them to be taken into consideration.

With regard to the subjective and objective conditions mentioned, the hope contained in the opinion is that the future patient, when making advance directives, may be aided by a doctor. This assistance could help ensure that the directives are expressed by an individual who is in full possession of mental faculties and will, and in particular could effectively help explain the individual's wishes with regard to clearly identified clinical situations, thus avoiding the risk of declarations that are general, equivocal or actually contrary to positive law, medical practice or deontology.

For this reason, the provision exists in advance directives that one or more trustees be named who must be involved by doctors in the decision-making process on behalf of patients who have become incapable of understanding or expressing their wishes: obviously, these trustees may not depart from the wishes of the declarant nor, even less, may they make decisions that he or she could not legitimately have taken.

However, the possibility of their presence, which in any case could not be legally binding but would give authoritative support to the will of the incapacitated, can be very useful, both to avoid any unlawful tendency to neglect the patient and, something that is more likely, the temptation to resort to aggressive medical treatment by health-care workers concerned to protect themselves from professional liability.

The presence of trustees, moreover, can help the doctor to understand the exact wishes of the patient should there be, in practice, a plurality of legitimate diagnostic or therapeutic opinions.

Responsibility of medical doctors

Regarding advance directives which, I repeat, are concerned with legitimately possible treatments and not with euthanasia, the doctor's position is key.

Indeed, the doctor is obliged to take into consideration the previously expressed wishes of the patient, just as he or she is bound in every case to consider the will of a patient who is sui compos and thus capable of self-expression.

As in every medical relationship, however, doctors cannot be bound by their patients' wishes, since they must make patients comply with whatever science and their consciences consider should be done.

In this perspective, the National Bioethics Committee's opinion contains a mechanism for guaranteeing these two different positions, those of the patient and the doctor, which seems to me valuable from both the bioethical and legal standpoints.

Basically, it requires that the doctor, who either complies with the advance directives expressed by the patient or does not do so because he considers them contrary to positive law, medical practice or deontology, must always and in every case "formally and adequately explain the reasons for his or her decision in a medical report".

The obligation on the doctor's part to express his or her motivations in writing guarantees in practice the possibility of checking in every case to ensure that the doctor's decision, one way or the other, was not arbitrary or inadequately considered but corresponds to effective de facto circumstances in relation to established practices in the exercise of the medical profession.

Feeding-tube problem

One point in all this delicate topic of advance directives is left open in the document of the Italian National Bioethics Committee: a document which, it is right to recall, is in the form of an opinion and reflects the various positions that exist in this body. I am referring to the problem of instructions that request the withdrawal of artificial nutrition and hydration.

In confronting the opinion of those who maintain that such instructions are legitimate, the
document also records the contrary opinion, that the patient's power to act can concern treatment that integrates forms of aggressive treatment because these can be disproportionate or even futile, but cannot refer to interventions of a non-extraordinary kind
aimed at life support, such as artificial nutrition or hydration.

There is no doubt that the latter is the ethically and deontologically correct position,
since although on the one hand artificial nutrition and hydration today can no longer be
considered extraordinary means, on the other hand, they prevent the terminally-ill patient from further and even worse suffering.

The point is not secondary or of little importance, because it is precisely on the topic of
instructions which suspend or do not suspend artificial nutrition and hydration that a pure
but subtle discrimination comes into play between declarations concerning therapeutic options and passive euthanasia.

It is quite obvious, in fact, that withdrawal of these life supports, which in itself would not seem to even enter into the medical and juridical concept of treatment, is objectively an act that in itself causes death.

However, it seems to me that the principles and guarantees postulated in the opinion, taken together and despite the fact that different positions on the above point are recorded in it, ought to lead to a reliable and sure end: that requests for withdrawing artificial nutrition and hydration are foreign to legitimate advance directives for treatment.

This is not only because, as has been said, these are activities that cannot properly be defined as therapeutic, but also and above all because this withdrawal would clearly contradict very precise ethical and juridical principles, such as those concerning solidarity and the inability to freely dispose of one's own body, which in Italian law are constitutionally recognized and guaranteed.

In conclusion, it is hoped that the legislature will explicitly intervene in this regard, following the authoritative instructions of the National Bioethics Committee contained in this latest proposal and also bearing in mind those contained in previous proposals that reinforce the frame of reference.

An intervention by the Italian legislature is needed, not only in order to bring certainty and tranquility to a subject that today, for various reasons, creates apprehension in public opinion and among health-care workers, but also to comply with precise commitments that were internationally assumed with the 1997 Oviedo Convention.

Taken from:
L'Osservatore Romano
Weekly Edition in English
24 November 2004, page 9

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