The Inclusion of Advance Directives in the Proposed Amendment to the Civil Code
Advance directives are legal documents that allow individuals to express their wishes and preferences regarding medical care and treatments in advance, to be followed if the person becomes unable to make decisions in the future. This document is created while the person is mentally competent and serves to guide doctors, family members, and caregivers on how to proceed in situations where the patient cannot communicate their wishes directly.
These directives have several key components, including: instructions for medical care, specifying which types of treatments or medical interventions the person does or does not wish to receive (such as mechanical ventilation, artificial nutrition, blood transfusion, among others); the appointment of a healthcare proxy, which allows the person to designate a trusted representative to make medical decisions on their behalf if they are incapacitated; general wishes, which may include preferences about palliative care, comfort, and quality of life; and preferences regarding the location where the person would like to receive care, such as at home or in a healthcare facility.
The main objectives of this document are to ensure autonomy, by making sure the person’s preferences are respected even when they cannot express them directly; to reduce conflicts, by avoiding disputes between family members and healthcare professionals about what should be done regarding the patient's care; and to facilitate decisions, by providing clear guidance to doctors and caregivers about the patient’s wishes.
Currently, advance directives are recognized and regulated by Resolution No. 1.995/2012 of the Federal Council of Medicine. This resolution establishes that doctors must respect the instructions previously expressed by patients about treatments and healthcare, as long as these directives do not conflict with the Medical Ethics Code.
However, due to the lack of legal provisions, advance directives are often not implemented and respected by healthcare operators. For this reason, the committee of jurists responsible for drafting the proposed amendment to the Civil Code has approved changes to ensure that this right is now guaranteed by law, by adding paragraphs 1, 2, and 3 to Article 15. This amendment ensures that individuals can create advance directives, indicating the treatments they wish or do not wish to receive in a future state of incapacity.
The amendments also guarantee the designation of a representative for making decisions regarding the person's health, provided it is formalized in a medical record, public or private document, dated, signed, and effective for five years. The potential legal change does not exempt healthcare professionals from their responsibility to continue providing the best possible care to the patient, even in the case of a valid refusal of specific treatment by the patient.
Article 15-A stipulates that individuals who are fully informed by doctors about the risks of death and worsening of their health status, and who are legally capable of exercising existential acts of civil life, have the right to refuse therapeutic interventions. This means these individuals can choose not to undergo hospitalization, examinations, medical treatments, or surgical interventions, without being coerced into accepting such procedures.
Furthermore, the sole paragraph of this article reinforces that every person has the right to record their therapeutic refusal declarations in their birth certificate. This record is important to ensure that individuals' choices are respected and properly documented, ensuring that their wishes are known and followed, even in future situations where the individual cannot express them directly.
Advance directives aim to ensure that a person's wishes regarding their medical care are respected, even when they cannot express them, representing a significant advancement in promoting patient autonomy and freedom of choice in matters related to health and medical treatments, as well as in the humanization of medical care, based on personal convictions and received medical information