Advance Directives: Binding or Merely Indicative? Incoherence of the Portuguese National Council of Ethics for the Life Sciences and Insufficiencies of Newly Proposed Regulation

Abstract:

The Portuguese National Council of Ethics for the Life Sciences issued in 2005 two important Opinions concerning persistent vegetative state (PVS) and refusal of blood transfusions. The first one advocated that advance directives should be respected; however, the second Opinion considered them “merely indicative.”

The different opinions of the National Council of Ethics reflect the difficulty of this matter.Portugal ratified the Convention on Human Rights and Biomedicine, which states that advance directives “should be taken into consideration” (Art. 9) and in order to regulate this generic rule, the Portuguese Association on Bioethics proposed to the Parliament a draft-law, which aims to legalize advance directives (including “living will” and “health-care proxy”) and establish a National Registry of Advance Directives. This proposal clearly states that advance directives should be binding.

However, some regulatory aspects, concerning the procedure that leads to the validity of a living will deserve further discussion. The Author argues in favour of a previous medical interview and a solemn formality in the case of binding advance directives, in order to assure the freedom and information of the refusal of treatment.