On Oct. 3, the Ministry of Health and Welfare unveiled the Patient Right to Autonomy Act Enforcement Rules, which are to take effect on Jan. 6. In the event of inconsistency between a declarant’s intent as expressed during the treatment process and their advance decision, the requirement for a modification of the advance decision “in writing” is flawed, and further amendments are therefore suggested.
As Article 8 of the rules states, in the event of inconsistency between a declarant’s intent as expressed in writing during treatment and the advance decision as registered on their National Health Insurance (NHI) IC card or saved as a scanned electronic file by a medical institution, the medical institution must follow declarants’ written intent before they withdraw or modify the advance decision.
However, if a declarant chooses to refuse life-sustaining treatment or artificial nutrition and hydration in writing, the physician must still follow the advance decision as registered on that person’s NHI card or as an e-file before the withdrawal or modification of the advance decision is completed.
In comparison, according to the German version of the Patient Right to Autonomy Act (病人自主權利法), a declarant’s intent as expressed during treatment is seen as the priority, followed by their intent as expressed in writing in the advance decision.
The next priority is their intent once expressed verbally or in writing based on their thoughts, moral or religious beliefs and related values, followed by the personal opinions given by their family members or trusted friends.
Finally, when the above are not available, doctors must make the medical decision that benefits the patient the most, based on their professional judgement.
This means that when a declarant contradicts their advance decision by expressing the willingness to take life-sustaining treatment or artificial nutrition and hydration during treatment, a medical institution must refer to Article 73 of the Medical Care Act (醫療法) and Article 7 of the Patient Right to Autonomy Act, which state that if the patient’s condition is critical, the institution must provide life-sustaining treatment or artificial nutrition and hydration immediately and may not wait until the modification of the advance decision is completed, to avoid the patient’s death during the wait.
We can use modern technology — such as tape recording and videotaping — and designation of witnesses to strengthen the long-winded process required for written modification of a declarant’s intent.
The Civil Code flexibly allows people to record their will, so why do the rules still adhere rigidly to written modification? This is a violation of a patient’s autonomous right to make changes.
The ministry should amend Article 8, Paragraph 1 of the rules by stating that if a declarant expresses verbally or in writing their intent to take life-sustaining treatment or artificial nutrition and hydration during treatment, even though the new decision contradicts the advance decision as registered on their NHI card or as an e-file, a hospital must still provide such treatment immediately before the patient withdraws or modifies the advance decision.
Also, Article 8, Paragraph 2 of the rules should be amended as follows: If a declarant chooses to refuse life-sustaining treatment or artificial nutrition and hydration during treatment, and the new decision contradicts the advance decision as registered on their NHI card or as an e-file, doctors must act according to their advance decision, and a medical institution may not terminate, withdraw or withhold life-sustaining treatment or artificial nutrition and hydration before the completion of withdrawal or modification of the advance decision.
Finally, Article 8, Paragraph 3 of the rules should be amended as follows: A medical institution or family members of a declarant must bear the “burden of proof” with regard to the facts about their verbally expressed intent.
In short, to bring the doctor-patient relationship into harmony, a cautious review of the rules is needed, so that a joint decision based on patient autonomy and the opinions of family members and the medical institution can be made.
Wang Gwo-jyh is an associate professor at Ming Chuan University’s department of criminal justice.
Translated by Eddy Chang
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