Headnotes:
In general, it can be stated that the unilateral issuance of a DNR order by doctors without informing or involving the patient, or his/her relatives, in the decision-making process may violate the patient's right to participation, and thus the right to inviolability of the person under Article 7(1) of the Charter of Fundamental Rights and Freedoms and respect for family and private life according to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the specific situation of the patient and his/her relatives must always be taken into account. The right to life guaranteed by Article 6 of the Charter and the right to the protection of the health guaranteed by Article 31 of the Charter do not imply an unconditional obligation for doctors to perform cardiopulmonary resuscitation, whatever the condition of the individual patient is, even though it might delay the moment of physical death for a certain period of time.
Summary:
I. The plaintiffs are the children of the deceased patient, who was before her death hospitalized in the hospital, where she suffered a cardiac arrest and died at the age of sixty-seven. The key issue in the case became whether the hospital was liable for the death of a long-term patient at the end of her life whose doctors unilaterally issued a "Do Not Resuscitate" ("DNR") order without informing her or her relatives. In the proceedings before the ordinary courts, the applicants, as her survivors, sought payment of CZK 720 000 against the hospital as compensation for the harm caused by the death. The Court of First Instance upheld the action and ordered the hospital to pay CZK 240 000 to each of the plaintiffs, since, in its view, the hospital had breached its legal duty by failing to inform the patient of the DNR's order despite her being able to perceive. The Court of Appeal reversed the decision of the court of the first instance and dismissed the plaintiffs' action. It concluded that although the hospital had breached its legal duty, the causal link between the consequence (the patient's death) and the wrongful act (the issuance of the DNR order without informed consent and the subsequent failure to resuscitate) had not been established. The Supreme Court dismissed the plaintiffs' appeal. It concluded that a health care provider is not obliged to pay survivors a one-off compensation for non-pecuniary damage caused by the loss of close persons if doctors did not perform cardiopulmonary resuscitation during a cardiac arrest of a patient whose condition was so serious that resuscitation would not have led to the restoration of cardiac function or would have restored vital functions only for a very short period of time while the dying person was suffering for a prolonged period of time. In constitutional complaint, the applicants argued that the hospital had violated the patient's right to life, thereby directly interfering with the private and family life of the applicants as patient´s survivors.
II. The Constitutional Court addressed the previously expressed wishes of patients in general and the DNR's order in the plaintiff's case. As a matter of principle, a medical procedure against a competent and sentient person capable of deciding his or her own fate may be performed only with his or her free and informed consent, even if the refusal of the procedure leads to his or her death. In general, patient may benefit from the institution of a previously expressed wish (which may also consist of a DNR order), but it must be approached consistently to avoid similar situations of subsequent litigation or survivors confusion about the instruction.
Patients should be informed of the possibility of consenting in advance to treatments that are not useful, unnecessary and temporarily prolong the moment of physical death at a time when they are still able to perceive the consequences of such a decision and to give truly free and informed consent. Patients must be in a state where they can still perceive the weight of their own decision. Also, the persons close to the patient should be clearly and comprehensibly informed by the doctors about the possibility of DNR. In a situation where the person is unable to perceive the consequences of giving or refusing treatment and is therefore unable to give consent, the decision to refuse further treatment is primarily up to the doctors. However, the decision of the doctors should also be made, as far as possible, after a broader medical consultation, in a transparent manner and, above all, respecting the participation rights of the patients and persons close to them. Doctors must communicate sufficiently with patients and persons close to them about the various options. If doctors fail to do so, they may infringe the natural rights of the close persons. According to the Constitutional Court, a DNR order must be a decision that balances the ethical, religious, medical and constitutional aspects of a patient's passing from life as sensitively as possible.
The Constitutional Court concluded that if the patient is not in a position to give informed (non)consent at the time of the need for resuscitation, the patient's previously expressed DNR order, which he or she made through the institution of previously expressed wishes, must be taken into account. In general, the decision to perform end-of-life cardiopulmonary resuscitation must be balanced between the right to life and health on the one hand, and the right of individuals to a dignified natural life on the other. The right to life and protection of health does not imply an unconditional obligation on doctors to perform cardiopulmonary resuscitation regardless of the condition of the individual patient, even though it might delay the moment of physical death for a certain period of time. Nevertheless, the unilateral issuance of a DNR order by doctors without informing or involving the patient or his/her relatives in the decision-making process may violate the patient's right to participation and, therefore, the right to inviolability of the person and respect for family and private life under Article 7(1) of the Charter and Article 8 of the Convention.
The general courts concluded that the doctors treating patient erred when they issued the DNR order unilaterally without consulting the patient or persons close to her. However, the plaintiffs' claim was for a lump sum compensation for the death of a person close to them, not for non-pecuniary damages caused by the violation of the patient's or their own rights of participation as close persons, which was the underlying reason for the dismissal of their claim. The courts proceeded on the basis of the different nature of the claims under section 444(3) of the Civil Code and the general claim for compensation for non-pecuniary damage within the meaning of section 13(2) of the Civil Code. Although it is clear from the evidence that the doctors did not include the patient or her family members in their assessment of whether resuscitation was a reasonable and appropriate treatment in her case in the future, this does not mean that they violated her right to life. Failure to prolong dying at the end of a long-term patient's life cannot be reconciled with outright killing. If the Court of Appeal properly instructed the applicants on the distinction between the claims under section 13(2) and section 444(3) of the Civil Code, there can be no breach of their fundamental rights in the dismissal of their action.
In view of the above, the Constitutional Court dismissed the constitutional complaint.
III. The judge reporting in the case was Jaromír Jirsa. No judge dissented.