The Constitutional Court decided the case of a breach of doctors ́ information duty. There is no consensus on who, when and by which measure can give the order „Do Not Resuscitate“. Medical intervention may only be performed when a patient has full legal capacity, is aware of their surroundings and is capable of making decisions regarding their own fate, only with the patient's informed and free consent. With due diligence towards the legal institute of the prior expressed wish it is necessary to prevent possible conflicts.
The background of the case
Mother of two children (complainants) had been hospitalised for approximately ten days, where she also died on 6th of July 2013. She was an elderly woman with a long lasting disease. Doctors unanimously issued the medical order „Do Not Resuscitate“ (DNR) for her.[1] Neither the complainant’s mother nor her family (her children) were informed that a DNR order had been issued in her case.
What had to be decided by the Constitutional Court
The Constitutional Court (CC) concluded that the case raised a legal question regarding whether a hospital could be held liable for the death of a patient with a long-term illness if the doctors issued a unanimous DNR order without informing either the patient or their family.
Decision of the District court
Claimants sought damages before the general courts for harm caused over manslaughter according to Art. 444 of the Civil Code of 1964 (Civil Code).
Pardubice District court (District court) complied with the lawsuit. District court found that the hospital breached its legal duty [2] by not informing the patient that the DNR was ordered in her case which led to her precocious death. The District Court therefore established the necessary causal link between the patient's death and the breach of the hospital's legal duty, which triggered liability under Article 420, paragraph 1 of the Civil Code.[3]
District court concluded that on 6th of July 2013 the patient was still capable of independent acting on her behalf. In other words, she was able to express her opinion clearly after the previous explanation.
Decision of the Appellate court
Regional court in Hradec Králové – branch office in Pardubice (Appellate court) had not complied with the District court's decision and dismissed the claimants ́ lawsuit. Appellate court agreed with the conclusion that the hospital breached its legal duty, but it had not found the alleged causal link between the DNR order and the patient's death.
Appellate court concluded that based on the audit opinion the patient´s resuscitation was going to be unsuccessful due to the state of the patient´s cardiorespiratory system. With information from the audit opinion, the Appellate court also found that even if the patient's resuscitation had been successful, it is likely that her survival would have only been possible through intensive medical care and organ support.
Regional court pointed out that on 6th of July 2013 the patient already suffered from a consciousness disorder. The court thus concluded that the patient fulfilled the criteria stated by the Recommendation of the board of directors of the Czech Medical Chamber No. 1/2010 regarding the procedure of decision making on the change of intensive medical care to palliative medical care in cases of patients in a terminal state, who cannot express their will.[4]
Decision of the Supreme court
The Supreme court (SC) partly dismissed the claimants´ appeal and rejected the remainder of it. The court emphasized that based on the audit opinion the patient would most probably stay alive only for a short period of time , and only with the support of medical devices.[5]
SC found that the medical intervention performed without the patient's consent constituted a breach of legal duty. SC concluded that the hospital had not fulfilled its information duty appropriately, however SC also concluded that the hospital is not obligated to provide damages for the loss of a relative. According to SC “damages over the loss there [by inappropriate fulfilment of the information duty] caused in autonomy of the patient and manifested through unwanted informational deficit” were not claimed by claimants.[6]
The legal institute of “previously expressed wish”
CC dismissed complainants´ constitutional complaint. CC declared that a medical intervention, if the patient has full legal capacity, is capable of perceiving their surroundings and is capable of making decisions about their life, shall be used only with the patient's free and informed consent.[7] This conclusion is relevant even if it leads to the patient's death.
According to CC, patients can use the institute of a previously expressed wish in the case of a DNR order. Yet, in this particular case, a written form is mandatory, and it must be included, along with the patient's reasoning for their decision in the patient ́s clinical documentation.
The legal institute of the previously expressed wish plays a key role in situations when the patient is not capable of expressing their informed and free consent. Then it is necessary to consider whether the patient had already expressed their will about some kind of medical intervention, hence preventing future conflicts and misunderstandings concerning the interpretation of the patient's lastly expressed will.
Informed consent in the end-of-life situation
According to CC it is doctors´ duty to inform the patient about the possibility of a non-providing meaningless, useless and merely the moment of death delaying health services. The patient shall be informed while they are still capable of giving a consent, in other words while the patient still can understand the outcomes of their decision. The consent must be free and informed. If the DNR is ordered, the patient´s kin shall be informed too.
Assuming that the patient is not capable of giving an informed and free consent, the decision shall be made after a broad consultation of doctors while the patient and their kin have a right to participate. This must be done to ensure that the best solution, in the best interest of the patient, is ultimately chosen. To avoid a violation of these fundamental rights, an appropriate level of communication between doctors, the patient and their kin is undeniably necessary. CC concluded that ordering the DNR is not only advisable but rather mandatory to communicate with the patient´s kin.[9]
Right to live, protection of health and a right to die with dignity
According to CC, the patient's right to life does not inherently imply an unconditional duty to perform resuscitation, at least not directly, even if such intervention might delay the patient's death. In a case where a death is inevitable „the aim of the doctor´s actions shall not be to prolong the life at any cost“.[10] Nonetheless, as mentioned above, „if the patient has full legal capacity, is aware of their surrounding and may formulate own decisions regarding their fate, medical intervention must only be performed with their informed consent“ although a death will be the result of this decision[11]
CC found no justification for the doctors ordering the DNR without informing the patient or her family. According to the Court, this action could not only be seen as a violation of the patient's right to participate in decisions regarding her treatment, but also as an infringement on her right to personal inviolability and the right to respect for her family and private life.[12]
Damages claimed by survivors
CC also paid attention to the difference between forms of damages according to Art. 13 para. 2 [13] and Art. 444 para. 3 [14] of the Civil Code. Whereas Art. 13 of the Civil Code provides regular non-pecuniary damages, provision Art. 444 para. 3 according to general courts provides survivors with the right to seek compensation for the unexpected death of a family member.[15] According to them, this particular provision does not grant a claim for compensation for the violation of the patient's and her family's right to participate.
According to the CC , the Appellate court had not violated survivors´ fundamental rights by dismissing their lawsuit if it informed them appropriately about the difference between these two claims.
It is rather surprising that claimants had not been awarded non-pecuniary damages over their emotional harm caused by their mother´s death according to Art. 13 of the Civil Code. It is all the more puzzling due to the fact that CC had not included this rebuke to its reasoning. The CC had stated (para 85) that it had previously addressed the legal question regarding the distinction between claims based on Article 13 and Article 444 of the Civil Code. It referred to its ruling on May 4, 2005 (case No. Pl. ÚS 16/04), in which it concluded that, in the context of Article 444, paragraph 3 it “is not excluded that aggrieved party, if one-off damages are not satisfactory over occurred harm to their personal rights, might seek additional satisfactory damages according to the provisions regarding the protection of personality rights“. However, CC had not reproached ordinary courts for not leading the claimants to this solution.[16]
Notes
[1] DNR (“Do Not Resuscitate”) order is a medical order that a patient should not receive a cardiopulmonary resuscitation if a respiratory arrest and cardiac arrest occurs. Some recent protocols together with CC prefer a term “Allow Natural Death“.
[2] District court particularly pointed at provisions Art. 28 para. 1 and Art. 31 para. 1 of the law NO. 372/2011 Coll., on health services and conditions of their providing, as amended.
[3] Art. 420 para. 1 of the Civil Code states, that “everyone is liable for harm which they caused by breaching their legal duty“.
[4] Art. 5 letter c) of the Recommendation of the board of directors of the Czech Medical Chamber No. 1/2010 states that “Initiation or continuing with any medical treatment which is not professionally reasoned, where is no reason to foresee its positive effect onto the course of a disease and if risk of complications, starving, sorrows and pain overweighs over real clinical benefits is contrary to principles of medicine and to Charter of the Rights of the Dying. There is a duty to begin with a pointless and unreasonable medical treatment or to continue with it if the current one is considered as complying with these criteria”.
[5] In this context SC pointed at principles “beneficie” (a principle of benefit) and “nonmaleficence” (a principle of avoiding of harm), i. e. to perform a medical procedure which is not in the patient's benefit is contrary to lege artis (para. 12 of the finding). The legal definition of the term “lege artis“ can be found partially in Art. 4 of the Convention on Human Rights and Biomedicine and in Art. 4 para. 5 and Art. 28 para. 2 of the Health services law. It is a procedure when a certain level of professionality is demanded together with due diligence paid to current medical protocols and modern medical procedures; the objective side of the case is also important, mainly individual conditions and options.
[6] SC also pointed at the necessity of distinguishing between a harm caused by a loss of a kin and a harm caused by non-delaying of the closing end of the kin´s life (para. 11 of the finding).
[7] Art. 5 of the Convention on Human Rights and Biomedicine states that: “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks“.
[8] For more information see the judgement of ECHR delivered on 10th of June 2010 in case of JEHOVAH'S WITNESSES OF MOSCOW AND OTHERS v. RUSSIA, Application no. 302/02: „Many established jurisdictions have examined the cases of Jehovah's Witnesses who had refused a blood transfusion and found that, although the public interest in preserving the life or health of a patient was undoubtedly legitimate and very strong, it had to yield to the patient's stronger interest in directing the course of his or her own life“ (para. 136).
[9] CC found that incapability to communicate about the closing end is a cause of conflicts and misunderstandings regarding prior expressed wishes.
[10] For aficionados see the Ethical Codex of the Czech Medical Chamber available from: https://www.lkcr.cz/stavovske-predpisy-clk.
[11] CC here works with three flagships of the human rights’ legal acts together. CC thus concludes that based upon the art. 7 para. 1 of the Charter of the Fundamental Rights and Freedoms (protection from any unauthorised intrusion into private and family life), Art. 8 Convention on Human Rights (respect for private and family life) and Art. 5 of the Convention on Human Rights and Biomedicine (General rule on a patient´s free and informed consent).
[12] Right to inviolability of the person and of their privacy is guaranteed by Art. 7 para. 1 of the Charter of the Fundamental Rights and Freedoms. Right to protection against any unauthorised intrusion to family and private life is guaranteed by Art. 10 para. 2 of the Charter of the Fundamental Rights and Freedoms and by Art. 8 para. 1 of the Convention on Human Rights.
[13] According to Art. 13 para. 2 of the Civil Code “If satisfaction according to para. 1 shows insufficient […] then a physical person can claim monetary non-pecuniary damages“.
[14] According to Art. 444 para. 3 of the Civil Code “Survivors deserve one time compensation over manslaughter […]“.
[15] On page 528 of a commentary to Art. 444 of the Civil Code written by an author’s collective lead by Milan Holub we can read that „Causality between an unlawful action based on fault and occurrence of damage to one's health must be surely proved; mere plausibility is not enough; yet it cannot be excluded only because the unlawful conduct of the wrongdoer finished already unfavourable state of the harmed“.
[16] SC made a relevant conclusion to this, which is that „a court during his decision making is not bonded by the legal opinion of the partitioner to the proceedings“, to which SC referred in his two resolutions; first was delivered on 19th of November 2013 f. n. 22 Cdo 2237/2013 and the second on 25th of January 2018 f. n. 22 Cdo 5561/2017 and also in his judgement delivered on 29th of November 2011 f. n.28 Cdo 3545/2010.
References
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Photo
Doctors unanimously gave the DNR order. Resuscitace za použití AED (02), autor: PrPom, 2nd of November 2017, source: Wikimedia Commons, CC BY-SA 4.0 DEED.
