Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 79
Octubre
Diciembre
2023
Recibido el 06/06/23 Aceptado el 15/08/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
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Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
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Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 79 (2023), 228-243
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Institution of Patient’s Advance
Directives in the Context of Ukraine’s
Aspirations for European Integration
DOI: https://doi.org/10.46398/cuestpol.4179.15
Galyna Myronova *
Olesia Batryn **
Vladyslav Teremetskyi ***
Alona Milevska ****
Liubov Meniv *****
Abstract
The development of legal science in Ukraine is connected with
the processes of reform of society oriented to European values
and standards of human rights. The most important among them
are life and human health, which are related to the realization of
patients’ rights in the health sector. In this context, the purpose
of the article was to analyze the status and prospects of the legal regulation
of the institution of patient advance directives, in terms of the methods
of medical intervention for the future. The research methods used were:
systems analysis, comparative and legal analysis, formal and logical
method, prognosis. In the conclusions, the authors have oered civil means,
which should create new opportunities for the exercise of subjective rights
of patients during the provision of medical care. Finally, suggestions have
been made for draft normative acts on improvement of legal regulation of
the health care sector of Ukraine in accordance with European legal norms.
Keywords: European legal norms; health care; patients’ rights; advance
directives; provision of health sector organization.
* Doctor in Law, Professor, leading research scientist of the Department of International Private Law and
Legal Problems of European Integration of academician F.H. Burchak Scientic Research Institute of
Private Law and Entrepreneurship of the National Academy of Law Sciences of Ukraine, Kyiv, Ukraine.
ORCID ID: https://orcid.org/0000-0002-9136-586X. Email: galamironova@meta.ua
** PhD., in Law, judge of the Pecherskyi District Court of Kyiv, Kyiv, Ukraine. ORCID ID: https://orcid.
org/0000-0001-9798-201X. Email: mysha-s@ukr.net
*** Doctor in Law, Professor, leading research scientist of the Department of International Private
and Comparative Law, Academician F.H. Burchak Scientic Research Institute of Private Law and
Entrepreneurship, National Academy of Legal Sciences of Ukraine, Kyiv, Ukraine. ORCID ID: https://
orcid.org/0000-0002-2667-5167. Email: vladvokat333@gmail.com
**** PhD in Law, associate professor, Associate Professor of the Department of Private Law Educational and
Scientic Institute of Law State Tax University, Irpin, Ukraine. ORCID ID: https://orcid.org/0000-
0003-1876-1636. Email: meniv17@gmail.com
***** PhD., in Law, associate professor, Associate Professor of the Department of Private Law Educational
and Scientic Institute of Law State Tax University, Irpin, Ukraine. ORCID ID: https://orcid.org/0000-
0003-4491-3218. Email: meniv17@gmail.com
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Vol. 41 Nº 79 (2023): 228-243
Institución de instrucciones anticipadas del paciente
en el contexto de las aspiraciones de Ucrania para la
integración europea
Resumen
El desarrollo de la ciencia jurídica en Ucrania está relacionado con los
procesos de reforma de la sociedad orientada a los valores y estándares
europeos de derechos humanos. Los más importantes entre ellos son la vida
y la salud humana, que están relacionados con la realización de los derechos
de los pacientes en el sector de la salud. En este contexto, el propósito
del artículo fue analizar el estado y las perspectivas de la regulación legal
de la institución de las voluntades anticipadas del paciente, en cuanto
a los métodos de intervención médica para el futuro. Los métodos de la
investigación usados fueron: el análisis de sistemas, análisis comparativo y
legal, método formal y lógico, pronóstico. En las conclusiones, los autores
han ofrecido medios civiles, que deberían crear nuevas oportunidades para
el ejercicio de los derechos subjetivos de los pacientes durante la prestación
de la atención médica. Finalmente, se han formulado sugerencias para
proyectos de actos normativos sobre la mejora de la regulación jurídica
del sector sanitario de Ucrania, de conformidad con las normas jurídicas
europeas.
Palabras clave: normas jurídicas europeas; asistencia sanitaria;
derechos de los pacientes; voluntades anticipadas;
prestación de la organización del sector sanitario.
Introduction
Ukraine has actually decided the direction of further movement after
signing the Association Agreement in 2014 between Ukraine, on the one
hand, and the European Union, the European Atomic Energy Community
and their Member States, on the other hand, by choosing the European
integration vector of development. It means the need for gradual integration
to European standards. We mean both the legal and the medical direction
of European integration. The availability of an eective model of medical
care for the population depends on their successful implementation. The
signicance of the legal component is to ensure the development and
implementation of regulatory acts aimed at building a patient-oriented
healthcare system.
Therefore, the legal direction of the European integration of Ukraine’s
development primarily involves the implementation of international
legal standards in the eld of ensuring the rights of patients, including by
230 Galyna Myronova, Olesia Batryn, Vladyslav Teremetskyi, Alona Milevska y Liubov Meniv
Institution of Patient’s Advance Directives in the Context of Ukraine’s Aspirations for European Integration
bringing domestic legislation in line with the provisions of international
treaties with the participation of Ukraine and joining the European legal
agreements on these issues.
The issue of ratication of the Convention on the protection of human
rights and dignity regarding the application of biology and medicine
(hereinafter referred to as the Oviedo Convention), signed by Ukraine in
2002, has been on the agenda for many years (Oviedo Convention, ETS
No. 164, 1997). The relevance of this event is conrmed by the Resolution
of the Verkhovna Rada of Ukraine (Resolution No. 1338-VІІІ, 2016), where
the Cabinet of Ministers of Ukraine was given a recommendation to prepare
suggestions for the ratication of the specied European agreement. The
Resolution of the Verkhovna Rada of Ukraine (Resolution No. 689-IX, 2020)
provides the adoption of the draft Law of Ukraine “On the ratication of the
Convention on the Protection of Human Rights and Dignity in the Use of
Biology and Medicine (Oviedo Convention, ETS No. 164, 1997)” in order for
Ukraine to fulll its international obligations. Taking into account the above,
the relevant direction of scientic research is the analysis of the normative
content of the text of the Oviedo Convention, the European experience of its
provisions’ application, carrying out doctrinal and normative correlations
with the domestic legislation and law-enforcement experience.
1. Methodology of the study
The research was conducted on the basis of the analysis of the provisions
of the Oviedo Convention, the legal positions of the European Court of
Human Rights, the domestic regulatory legal framework, literary sources,
description and generalization of the range of existing achievements and
problems. The method of ascent from the general to the specic has been
applied. Due to this method the basic principle of the autonomy and dignity
of the patient has been highlighted in the special aspect of taking into
account the previous orders.
The comparative and legal method made it possible to analyze the
norms of the Oviedo Convention, the legal positions of the European Court
of Human Rights and the norms of Ukrainian legislation. Due to the formal
and logical method, the denition of the main concepts of the institution
of advance directives adequate for the application in domestic acts of
legislation, has been oered. The forecasting method assisted to prove that
the oered civil means should create new opportunities for exercising the
subjective rights of patients during the provision of medical care.
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2. Analysis of recent research
The problem of introducing the institution of the patient’s advance
directives has not received due attention among Ukrainian scholars.
Legal research in the eld of patients’ rights is conducted in tangential
directions: ensuring the right to medical care (Teremetskyi et al., 2019);
specic features of the protection of human rights in the healthcare sector
by national courts (Teremetskyi and Muliar, 2019); informed voluntary
consent (Teremetskyi and Avramova, 2018); deprivation of life at the
request (euthanasia) (Bolidzhar, 2020).
Some scholars in their publications oer to eliminate the gaps in
Ukrainian legislation by ratifying the Oviedo Convention and establishing
in Ukraine the institution of previously expressed wishes (Puchkova and
Bogutska, 2021) or patient advance directives (Shchyrba, 2021). At the
same time, reasonable suggestions are expressed in regard to the regulation
of the institution of advance directives in Ukraine (Myronova, 2020).
We note that the problem of advance directives in the healthcare sector
is widely and thoroughly discussed in the European scientic community
in various aspects: regarding the implementation of patient’s autonomy
(Johnson et al., 2018); specics of observing the ethics of autonomy in
caring for the dying (Gómez-Vírseda et al., 2019); the signicance of
autonomy as the ability to make independent rational choices for patients
who receive palliative care (Houska and Loučka, 2019); special regime of
previous psychiatric directives (Tinland et al., 2019).
3. Results and Discussion
3.1. European legal standards regarding the regulation of
patient’s advance directives.
The institution of the patient’s advance directives is part of the European
concept of human rights and dignity as a participant in the relationship
for the medical care provision. The main constituent rules of consent as
conditions for the legality of any intervention in the eld of human health
in the European legal tradition are enshrined in the norms of the Oviedo
Convention. Chapter II “Consent” consists of 5 Articles that form the
doctrinal framework and normative basis for implementation into national
legal systems.
The Article 5 contains a general rule, according to which any intervention
in the eld of health can be carried out only after the voluntary and informed
consent of the person concerned. The Articles 6 and 7 enshrine principles
for the protection of persons who are incapable of consenting to medical
232 Galyna Myronova, Olesia Batryn, Vladyslav Teremetskyi, Alona Milevska y Liubov Meniv
Institution of Patient’s Advance Directives in the Context of Ukraine’s Aspirations for European Integration
intervention. In particular, special rules for granting consent are applied in
the provision of medical assistance to minor persons, adult incapacitated
individuals, including in the provision of psychiatric care. The Article 8
regulates the granting of consent in emergency situations.
The Article 9 (the Art. 9 “Previously expressed wishes”) enshrines a
special rule of regulation of the legal institution of the patient’s previously
expressed wishes for the rst time at the level of an international agreement:
“The previously expressed wishes relating to a medical intervention by a
patient who is not, at the time of the intervention , in a state to express his
or her wishes shall be taken into account”. In this way, the patient’s advance
directives are a component of the rule of consent to medical intervention in
the European legal tradition.
The absolute values recognized by the European community (dignity,
autonomy, integrity, inviolability) have gradually acquired their concretization
due to legal opportunities for a person to independently use and dispose of own
body, individual organs, allow or limit access to them. The provisions of the
Art. 9 of the Oviedo Convention seek to create a binding legal framework for
the legitimacy of advance health care documents, whereby a person will have
the opportunity to record own choice of treatment and care methods for the
future in advance in a legally binding document. Due to special transactions,
the fundamental principle of human autonomy extends to situations where the
patient is unable to give or express own consent.
Progressive processes in medicine and biomedical sciences became the
catalyst for the initiation of a special norm regarding the implementation of a
patient’s advance directives. Such new transactions of patients have become
relevant due to the spread of the latest medical technologies aimed at prolonging
or articially maintaining life processes, which did not always have favorable
clinical results of resuscitation measures.
Those measures immediately showed unexpected eectiveness, when closed
cardiopulmonary resuscitation was rst used to save patients with cardiac
arrest in the middle of the XX century. Thus, 118 cardiopulmonary resuscitation
procedures were successfully performed in 1961 just at Johns Hopkins Hospital
for patients with circulatory arrest (Berger et al., 2016). According to their data,
cardiac activity was restored in 79% of cases, but only 60% of the patients who
were saved returned to the state of activity of the central nervous system and the
heart, which was before the circulatory arrest.
The routine application of cardiopulmonary resuscitation to all hospital
patients who needed it led to new problems in the following years until 1963.
Prolonged suering and a prolonged dying process have in many cases resulted
from successful cardiac resuscitation, especially in terminally ill patients.
However, there was no legal document until 1976 that would regulate the
patient’s right to request refusal of resuscitation.
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In the light of modern ethical requirements of respect for the patient’s
autonomy, dignity and individuality, advance directives made in case of
their inability to make their own decisions or to report them, have acquired
the legal status and are one of the legal means of clinical decision-making.
The Article 9 of the Oviedo Convention is applicable to at least 3 types of
dierent legal situations: a) emergency cases, when a patient does not have
the ability to express own opinion; b) situations, when a person in a state
of progressive illness or dementia refuses in advance certain methods of
articial life support; c) situations, when a person consciously (for religious
or ethical reasons) refuses certain dened methods of medical intervention
and certies own wishes for the future, when he / she may become unable
to express own will.
The position of the drafters of the Oviedo Convention that doctors
cannot act completely arbitrarily in case of a patient’s incapacity to express
his / her will has become apparent increasingly over time. That is, they must
have good reasons to disregard a patient’s legitimate wishes expressed in
advance directives.
Although the text of the Art. 9 of the Oviedo Convention refers only to
unilateral transactions – advance directives regarding methods of medical
intervention for the future, the practice of applying this norm in certain
countries shows that advance directives are made in two legal forms:
unilateral directives and instructions to another person, which is based on
the contract.
Unilateral directives are made in the form of a personal statement-
order of a patient regarding treatment, care, life-saving procedures or
prolongation of life in case it is impossible to notice his / her choice. A
mandate is a form of procuracy based on a contract that appoints a person
empowered to make medical decisions instead of a patient. A mandate
provides benets in providing clarication of a patient’s preferences, if
they have been expressed in vague, ambiguous terms in personal directives
and for providing medical care in unexpected situations that have not been
specically addressed by a patient.
Special principles regarding the status and legal mechanisms of the
institution for advance planning of treatment and care are laid down in
a number of legal acts of the Council of the European Union, which have
the nature of recommendations. In particular, the Recommendation of
the Committee of Ministers to member states on principles concerning
continuing powers of attorney and advance directives for incapacity
(Recommendation CM/Rec, 2009: 11) states that states should promote
early self-determination of capable adults (in the event of their incapacity
in the future) by means of appropriate orders and preliminary orders.
234 Galyna Myronova, Olesia Batryn, Vladyslav Teremetskyi, Alona Milevska y Liubov Meniv
Institution of Patient’s Advance Directives in the Context of Ukraine’s Aspirations for European Integration
The issue of the priority of those methods over others must be considered
in the context of the principles of patient self-determination and the
subsidiarity of protection measures. Recommendation CM/Rec (2009: 11)
provides model denitions of key terms. A “continuing power of attorney”
is a mandate given by a capable adult with the purpose that it shall remain
in force, or enter into force, in the event of the grantor’s incapacity. The
“granter” is the person giving the continuing power of attorney. The person
mandated to act on behalf of the granter is referred to as the “attorney”
.“Advance directives” are instructions given or wishes made by a capable
adult concerning issues that may arise in the event of his or her incapacity.
The “granter” is the person giving the continuing power of attorney.
The Committee of Ministers of the Council of Europe recommends that
states should: develop provisions and mechanisms that may be necessary
to ensure the authenticity of documents; regulate the procedure for the
validity of the power of attorney; standardize the procedures and criteria
for determining the legal capacity of patients; decide the extent of advance
directives are to be binding; consider the circumstances when a durable
power of attorney becomes invalid and what protective measures are to
be taken in such circumstances; regulate issues about situations that arise
in the event of a signicant change in circumstances. Advance directives,
which are not binding, should be considered statements of wishes that must
be given due respect.
A movement to implement mechanisms for taking into account
documents from patients’ advance directives into national legal systems has
been also started since 2009 in the Parliamentary Assembly of the Council
of Europe (PACE). Hearings on the topic “Living wills and the protection of
health and human rights” were held in the period from May to December
2011, the result of which was the adoption of important documents –
Resolution 1859 (2012) and Recommendation 1993 (2012) under the joint title
“Protecting human rights and dignity by taking into account previously expressed
wishes of patients”.
In particular, Resolution 1859 (2012) of the Parliamentary Assembly of the
Council of Europe recommended that member States: sign, ratify and fully
implement the Oviedo Convention, if they have not already done so (clause 6.1);
apply Committee of Ministers Recommendation CM/Rec (2009: 11) (clause 6.2);
review, if need be, their relevant legislation with a view to possibly improving it
(clause 6.3); for countries with no specic legislation on the matter – by putting
into place a “road map” towards such legislation promoting advance directives,
living wills and/or continuing powers of attorney, on the basis of the Oviedo
Convention and Recommendation CM/Rec (2009: 11), involving consultation of
all stakeholders before the adoption of legislation in parliament, and foreseeing an
information and awareness-raising campaign for the general public, as well as for
the medical and legal professionals after its adoption (clause 6.3.1); to encourage
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self-determination of capable adults in the event of their future incapacity, by
means of advance directives, living wills and/or continuing powers of attorney,
should be promoted and given priority over other measures of protection (clause
7.1); advance directives, living wills and/or continuing powers of attorney should
be accessible to all; complicated forms or expensive formalities should thus be
avoided (clause 7.5) (Resolution PACE 1859, 2012).
The fact that these norms were included into the Principles, Denitions
and Model Rules of European Private Law Draft Common Frame of Reference
(DCFR, 2009) testies to the importance of the legal mechanism of advance
directives regarding future treatment. Chapter 8 “Medical services” stipulates
the requirement of mandatory consideration of prior orders regarding medical
intervention. Thus, the Article IV.C.-8:108 “Obligation not to treat without
consent” contains the following rules: in so far as the patient is incapable of
giving consent, the treatment provider must not carry out treatment without
considering, so far as possible, the opinion of the incapable patient with regard
to the treatment and any such opinion expressed by the patient before becoming
incapable.
3.2. Legal positions of the European Court of Human Rights
regarding patient’s advance directives
The norms of the Oviedo Convention are not directly subject matter
to interpretation by the European Court of Human Rights (hereinafter
– ECHR). However, there is a fundamental anity between the Oviedo
Convention and the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter – CPHRFF) (ECHR, 1950), which
guarantee the protection of human rights both at the conceptual and
normative levels.
Both agreements are based on the same approach, the same ethical
principles and legal concepts that are developed and specied in the Oviedo
Convention for the purpose of protecting human dignity in the eld of
biology and medicine. That is the reason why the legal positions of the
ECHR in medical cases are of particular interest, which provide guidelines
on how the ECHR considers and qualies violations of human rights in
the eld of medical care. Due to this analysis we have the opportunity to
foresee the necessary regulatory safeguards for human rights violations in
the formation of national legislation in this area.
It is still unusual for most European countries to make clinical decisions
on the basis of a patient’s advance wishes, however, some generalizations
can be currently made about the ECHR’s legal position in regard to
advance directives. Considering comprehensive moral and legal aspects
of taking into account a patient’s advance directives, the ECHR Lambert
against France decision (Application No. 46043/14, 2015) formulated the
236 Galyna Myronova, Olesia Batryn, Vladyslav Teremetskyi, Alona Milevska y Liubov Meniv
Institution of Patient’s Advance Directives in the Context of Ukraine’s Aspirations for European Integration
basic principles that must be taken into account while forming national
legislation. First of all, the ECHR noted the conceptual legal dierence
between euthanasia (assisted suicide), on the one hand, and withholding
life-sustaining treatment, on the other. This statement made an important
substantive distinction between the institutions of euthanasia and advance
declaration of will regarding future treatment.
Secondly, the ECHR rearmed its position regarding the mechanism
of medical decision-making in a new context, if a patient cannot (or can
no longer) participate in this procedure. In this case, the decision is made
by a third party in accordance with the procedures set out in national law.
However, a patient still should be involved in the decision-making process
through any previously expressed wishes.
The wishes of a patient in the medical decision-making process are of
paramount importance, regardless of how they are expressed. Thirdly, the
ECHR noted that medical factors (in particular, a patient’s current condition,
changes in that condition, degree of suering, clinical prognosis) and non-
medical factors, including a patient’s wishes should be taken into account
while assessing whether treatment meets the criteria of unreasonable
obstinacy, no matter how they were expressed, how a physician should have
paid special importance, as well as the views of a trusted person, family or
relatives.
Thus, there is a principled position of the ECHR regarding the paramount
importance of a patient’s wishes in the decision-making process, regardless
of how the wishes are expressed. When two Conventional rights are pitted
against each other: the right to life with the corresponding duty of the state
to protect life under the Art. 2, on the one hand, and the right to personal
autonomy, which falls within the protection of the Art. 8. “Respect for
human dignity and human freedom” may prevail in such a contest. If there
are no prior orders, the dignity of a person is interpreted in terms of the
predominance of the value of life.
Another legal position was formulated by the ECHR in the case Berke
against the United Kingdom (Decision as to Admissibility Application
No 19807/06, 2006). The decision concerned the right of a competent
patient to request the treatment dened in the earlier orders. The applicant
was concerned that the current professional medical guidelines in the
United Kingdom in his opinion would allow treatment to be withdrawn
in circumstances that would result in his suering, death, starvation and
dehydration. The applicant wished to be fed and adequately hydrated until
he would naturally die.
Applying for protection to the ECHR, the applicant complained
under the Art. 8 of the European Convention that he was deprived of
the protection of an important aspect of his personal autonomy within
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the national jurisdiction because he could not make advance directives
regarding the treatment he wished to receive at a time when he was not able
to communicate. He considered the presumption of priority of his wishes in
favor of life-prolonging treatment insucient.
The ECHR in its decision expressed the legal position that an applicant
cannot predetermine the application of a particular treatment in future
unknown circumstances. Neither a competent nor an incompetent patient
can demand treatment from a physician that the doctor considers to be
clinically unjustied.
Therefore, in the context of the Art. 8 of the Convention for the Protection
of Human Rights and the Art. 9 of the Oviedo Convention, as well as in the
light of the legal evaluations of the ECHR, the principle of a patient’s personal
autonomy extends to the situation of the loss of part of his competence and
even the loss of consciousness. Physicians in such clinical settings have
an obligation to retrospectively consider a patient’s expression of will and
personal preferences regarding the methods of medical intervention. This
approach legally obliges the governments of countries that have joined
these agreements to introduce new institutions into legislation, and this has
already been done in some countries of Western Europe.
Dierent jurisdictions choose dierent ways to introduce legal means
that ensure a patient’s autonomy in choosing future medical interventions.
Some have adopted special legislation regulating patient rights, others
have incorporated special norms into general civil legislation. For example,
separate norms related to a patient’s autonomy and advance directives are
included into the Mental Capacity Act in the jurisdiction of England and
Wales (Mental Capacity Act, 2005).
The law regulates the spectrum of legal relations arising in connection
with a person’s loss of competence, which relate to nancial issues, personal
well-being and the provision of medical assistance. Issues regarding a
patient’s autonomy and advance directives are regulated in Austria by a
separate special Federal law “Bundesgesetz über Patientenverfügungen”
(Bundesgesetz über Patientenverfügungen, 2006).
3.3. Patient’s advance directives in Ukrainian law
With the beginning of the reform of the health care system in Ukraine
in 2017, certain elements of the institution of advance directives were
fragmented and legitimized at the level of orders of the Ministry of Health
of Ukraine. Thus, the Order of the Ministry of Health of Ukraine “On the
approval and implementation of medical and technological documents on
the standardization of emergency medical care (Order MoH No 1269, 2019)
approved a new clinical protocol “Emergency medical care: pre-hospital
stage”, which is a translation of the corresponding protocol acting in the
238 Galyna Myronova, Olesia Batryn, Vladyslav Teremetskyi, Alona Milevska y Liubov Meniv
Institution of Patient’s Advance Directives in the Context of Ukraine’s Aspirations for European Integration
USA and regulating patient’s advance directives among other things, in
particular, transactions “Do Not Resuscitate”.
Advance directives are dened in the protocol as “a document describing
the procedures allowed for the specied medical conditions, including all or
only in part from the following: actions in case of cardiac arrest, whether
articial nutrition is allowed, whether or not to be a donor, dialysis and
other parameters”. Paragraph 4.4 of this protocol requires emergency
medical providers to recognize and support the various ways, when patients
can express their wishes regarding cardiopulmonary resuscitation or end-
of-life decisions.
This medical and technological document is somewhat inconsistent
with the legislation regulating relations in the eld of medical care in
Ukraine. In particular, the Order of the Ministry of Health of Ukraine
No 1269 contradicts the Art. 52 of the Law of Ukraine “Fundamentals of
Ukrainian legislation on health care” (Law of Ukraine No. 2801-XII, 1992),
which provides: “medical employees are obliged to provide full medical
care to a patient who is in an emergency condition. Active measures to
support a patient’s life are stopped, if a person’s condition is determined
to be irreversible”. Other orders of the Ministry of Health of Ukraine also
partially regulate the institution of “a patient’s proxy for notication in case
of a patient’s emergency” (Order MoH No. 503, 2018; Order MoH No. 2755,
2020). However, there is still no special regulation of the specied relations
in the legislation.
The norms of the Art. 6 of the Civil Code of Ukraine (Law of Ukraine
No. 435-IV, 2003) provide the possibility of recognizing a contract and
unilateral transaction as a source of civil law in cases of gaps in the law
regarding relationships not regulated by civil legislation acts. That is,
individuals (persons) in Ukraine can theoretically make advance directives.
However, such documents in practice are not considered legally binding.
Since there is no special legislation on advance directives, there are no
dened legal grounds regarding the degree of obligation, scope and validity
of such documents. Given the peculiarities of the domestic legal culture and
mentality, the practical meaning of authorizing a proxy in matters of health
care is almost lost, because if a patient becomes incompetent, decisions
about treatment and care are made by physicians or relatives, guardians,
even if they do not agree with patient’s personal preferences.
Taking into account the above, and the European integration direction
for the development declared by Ukraine, the observance of a patient’s
recognized rights and the development of adequate ways of implementing
the institution of advance directives, taking into account the peculiarities of
the legal system and the legal culture of the population, become of urgent
importance. The introduction of special norms into the legislation of
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 228-243
Ukraine, which regulate relations of contractual representation of a patient
and advance directive, will contribute to the promotion of a patient’s
autonomy in Ukraine.
We supplement the Art. 3 of the Law of Ukraine “Fundamentals of
Ukrainian legislation on health care” (Law of Ukraine No. 2801-XII, 1992)
with the following terms and denitions: “Patient’s advance directives” – a
legal document drawn up in accordance with the requirements of the law
by an individual with full civil legal capacity, which records his / her will
regarding the methods of medical intervention for the future.
“Power of attorney for decision-making in the eld of health care” is a
legal document drawn up in accordance with the requirements of the law by
an individual with full civil capacity for the purpose that it remains in force
or enters into force in case of the grantor’s incapacity. “Patient’s proxy” is
an individual authorized to make decisions regarding medical intervention
and to obtain medical information by a person with full civil legal capacity
on the basis of a power of attorney agreement.
Paragraph 1 of the Art. 52 of the Law of Ukraine “Fundamentals of
Ukrainian legislation on health care” (Law of Ukraine No. 2801-XII, 1992)
we oer to be worded as follows:
Medical employees are obliged to provide medical care to a patient who is in
an emergency, on the grounds and to the extent determined by legislation, on the
basis of clinical protocols and standards for the provision of urgent and emergency
medical care, which are approved by the central body of executive power, which
ensures the formation and implementation of state policy in the healthcare
sector, and taking into account of a patient’s advance directives. Active measures
to support a patient’s life, authorized by the patient, his representative, are
terminated in case if the person’s condition is determined to be irreversible death.
Besides, the legal mechanism of advance directives must be enshrined
in the special Law “On Patient’s Advance Directives”.
Conclusions
The patient’s advance directives are a component of the rule of consent
to medical intervention in the European legal traditions. Due to special
transactions, the fundamental principle of human autonomy extends to
those situations, when a patient is unable to give or express his consent.
According to the ECHR’s legal position, a patient’s wishes in the decision-
making process, including advance directives, are of paramount importance.
There is no special regulation of relations on the contractual
representation of a patient and a patient’s advance directives in Ukrainian
legislation. Therefore, the relevant amendments to the legislation, taking
240 Galyna Myronova, Olesia Batryn, Vladyslav Teremetskyi, Alona Milevska y Liubov Meniv
Institution of Patient’s Advance Directives in the Context of Ukraine’s Aspirations for European Integration
into account the norms of the Art. 9 of the Oviedo Convention in the context
of the renewal of civil legislation, which is ongoing in Ukraine, have been
oered. New civil legal means will create new opportunities for individuals
in exercising their subjective rights by extending the principle of consent to
those situations, where a patient’s will be not taken into account for various
reasons.
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