Edited by Lawyer Cristiana Fanele
Explanation of the right to therapeutic self-determination, constitutionally provided by Article 31, paragraph 2, of the Constitution, in conjunction with Articles 2 and 13 of the Constitution, is undoubtedly outlined in Law No. 219 of December 22, 2017, titled “Provisions on Informed Consent and Advance Directives in Treatment.” After a long period of gestation, this law fills a legislative gap by providing an appropriate tool to give substance to the right of a person to self-determine, even in a therapeutic context: the Advance Directives in Treatment (DAT).
The subject is introduced by Article 4, paragraph 1, of Law 219/2017, which expressly states: “Every adult who is capable of understanding and willing, in anticipation of a potential future incapacity to self-determine and after having acquired adequate medical information about the consequences of their choices, may, through DAT, express their wishes regarding healthcare treatments, as well as give consent or refuse diagnostic assessments, therapeutic choices, and individual treatments. They may also designate a trusted person, hereinafter referred to as the ‘proxy,’ who shall act on their behalf and represent them in relations with healthcare professionals and facilities.”
As is evident, this is a true inter vivos act, qualifying as a legal transaction that consists of an expression of the will of a fully capable person, subject to the occurrence of a condition (loss of the ability to self-determine), and aimed at producing legal effects such as the consent to or refusal of certain therapeutic treatments that may become necessary during the declarant’s life.
The required form, as specified in paragraph 6 of the aforementioned article, is that of a public deed or an authenticated private document, or a private document personally delivered by the declarant to the civil registry office of the declarant’s municipality of residence, which will record it in a specific register if established, or to healthcare facilities, if they have appropriate telematic data management systems. If the patient’s physical condition does not allow it, DAT can be expressed through video recordings or devices that enable a person with disabilities to communicate; in the same forms, DAT can be revoked, modified, and renewed.
Another fundamental point of Article 4 of Law 219/2017 is the optional appointment of the proxy, who must act on behalf of and represent the declarant in relations with the doctor and healthcare facilities. The proxy can disregard the declarant’s wishes only if they are absolutely incongruent with the declarant’s clinical condition or if there are innovative therapies not foreseeable at the time of signing. This undoubtedly provides a significant degree of discretion but, in the writer’s opinion, is necessary, especially considering that the subject matter of these declarations is the essential right to life.
Therefore, it is necessary, albeit risky, to abandon an ideological approach in favor of a more pragmatic method because excessive bureaucratization could, in fact, deny the right.
