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Resolution 1859 (2012) Final version
Protecting human rights and dignity by taking into account previously expressed wishes of patients
1. There is a general consensus based
on Article 8 of the European Convention on Human Rights (ETS No. 5)
on the right to privacy, that there can be no intervention affecting
a person without his or her consent. From this human right flow
the principles of personal autonomy and the principle of consent.
These principles hold that a capable adult patient must not be manipulated
and that his or her will, when clearly expressed, must prevail even
if it signifies refusal of treatment: no one can be compelled to
undergo a medical treatment against his or her will.
2. The Council of Europe has included this principle in the Convention
for the Protection of Human Rights and Dignity of the Human Being
with regard to the Application of Biology and Medicine: Convention
on Human Rights and Biomedicine(Oviedo
Convention, ETS No. 164), which legally binds the majority of member
States. The convention also covers the situation in which a patient
is no longer able to express his or her will, by stipulating that
the previously expressed wishes relating to a medical intervention
by a patient who is not, at the time of the intervention, in a state
to express his or her wishes “shall be taken into account”.
3. These wishes can be formalised through advance directives,
living wills or continuing powers of attorney. In Recommendation
CM/Rec(2009)11 on principles concerning continuing powers of attorney
and advance directives for incapacity, the Committee of Ministers
recommended that member States promote these practices, and laid
down a number of principles to guide member States in regulating
them.
4. However, in reality, the situation in Europe varies from state
to state, ranging from no legislation whatsoever on advance directives
to specific legislation which confers a binding effect on them.
Even where specific legislation does exist, it is not always fully
implemented. Thus, today, only a tiny minority of the Council of
Europe’s 800 million citizens actually have advance directives,
living wills and/or continuing powers of attorney, making it difficult,
if not impossible, to take their previously expressed wishes into
account, and thus effectively protect their human rights and dignity.
5. This resolution is not intended to deal with the issues of
euthanasia or assisted suicide. Euthanasia, in the sense of the
intentional killing by act or omission of a dependent human being
for his or her alleged benefit, must always be prohibited. This
resolution thus limits itself to the question of advance directives,
living wills and continuing powers of attorney.
6. The Parliamentary Assembly considers it essential that rapid
progress be made in this area by member States to ensure that people’s
human rights and dignity are guaranteed across the whole continent.
It thus recommends that member States:
6.1. sign, ratify and fully implement the Oviedo Convention,
if they have not already done so;
6.2. apply Committee of Ministers Recommendation CM/Rec(2009)11
on principles concerning continuing powers of attorney and advance
directives for incapacity;
6.3. review, if need be, their relevant legislation with a
view to possibly improving it:
6.3.1. for countries with
no specific legislation on the matter – by putting into place a
“road map” towards such legislation promoting advance directives,
living wills and/or continuing powers of attorney, on the basis
of the Oviedo Convention and Recommendation CM/Rec(2009)11, involving
consultation of all stakeholders before the adoption of legislation
in parliament, and foreseeing an information and awareness-raising
campaign for the general public, as well as for the medical and
legal professions after its adoption;
6.3.2. for countries with specific legislation on the matter
– by ensuring that the relevant Council of Europe standards are
met by this legislation, and that the general public, as well as the
medical and legal professions, are sufficiently aware of it and
implement it in practice.
7. The Assembly, recalling its Recommendation 1418 (1999) on the
protection of the human rights and dignity of the terminally ill
and the dying, recommends that national parliaments, when legislating
in this field, respect the following principles, in addition to
those enshrined in the Oviedo Convention and Committee of Ministers
Recommendation CM/Rec(2009)11:
7.1. self-determination
for capable adults in the event of their future incapacity, by means
of advance directives, living wills and/or continuing powers of
attorney, should be promoted and given priority over other measures
of protection;
7.2. advance directives, living wills and/or continuing powers
of attorney should, in principle, be made in writing and be fully
taken into account when properly validated and registered (ideally
in state registries);
7.3. there should be an option to divide the function of representing
the person between an attorney for property and a separate person
for health and welfare; provisions for the possibility of a public appointment
should also be made in cases where the individual has made no appointment
of his or her own, where this is in the best interest of the individual;
7.4. prior instructions contained in advance directives and/or
living wills which are against the law, or good practice, or those
which do not correspond to the actual situation that the interested
party anticipated at the time of signing the document, should not
be applied;
7.5. advance directives, living wills and/or continuing powers
of attorney should be accessible to all; complicated forms or expensive
formalities should thus be avoided;
7.6. capable adults should be encouraged to review at regular
intervals (for example, once a year) the advance directives, living
wills and/or continuing powers of attorney they have made, and should
be able to revoke and/or change them at any time;
7.7. a system of supervision to fight abuse should be established
under which a competent authority is empowered to investigate, and,
if necessary, intervene, in particular in cases in which an attorney
is not acting in accordance with the continuing power of attorney
or in the interests of the granter;
7.8. surrogate decisions that rely on general value judgments
present in society should not be admissible and, in case of doubt,
the decision must always be for life and the prolongation of life.