On The Institution Of Advance Directives And The Proposal Of Its Establishment In China

Once a patient loses his or her mental capacity, who shall make the medicaldecisions for the patient? Whose wish and what rule should be abided by? China’slaws haven’t given any answers to these questions, which results in the right to decideof a patient without mental capacity being given to his or her relatives or the doctorand being overwhelmed by paternalism. An advance directive is a legal tool by whichone can make decisions for his or her medical affairs during the time when one losesmental capacity. Through the institution of advance directives, one can still control hisor her medical affairs when being incompetent, which will greatly promotehealth-care autonomy.An advance directive can be an instruction directive or a proxy directive. Aninstruction directive expresses one’s medical wishes directly. A proxy directivederives from the durable power of attorney. Both an instruction directive and a proxydirective have merits as well as demerits, therefore, it is better to use both of them atthe same time. A living will is a type of instruction directive which includesend-of-life decisions as its main content, which manifests the legal theory of deathwith dignity. The theoretical basis of advance directives includes health-careautonomy and continuity of the person. Health-care autonomy involves informedconsent and two principles of medical ethics, namely permission principle and respect for autonomy principle. Two arguments, i.e. the “Black Box” and the “Stranger”,presume a radical discontinuity in the selfhood of patients, which should be criticized,and continuity of the person should be affirmed.The institution of advance directives originated from the United States and hasbecome a mature legal institution. Cruzan v. Director, Missouri Department of Healthmade the whole U.S. focus on advance directives and drove the Congress to enact thePatient Self-Determination Act. Given the fragmented, incomplete, and sometimesinconsistent set of rules included in different state legislations, National Conference ofCommissioners on Uniform State Laws passed Uniform Health-Care Decisions Act.The influence of advance directives has spread to European countries. The MentalCapacity Act of U.K. has clear regulations of advance directives. In recent years,German Civil Code, Austrian Civil Code, and Swiss Civil Code have clearlystipulated advance directives. Besides, in2010, Germany decided its first case thataffirmed the legal effect of advance directives.For China, to establish the institution of advance directives will be of greatsignificance for protecting health-care autonomy and dealing with the medical affairsof incompetent patients. All of the followings have provided practical conditions forthe establishment of advance directives in China: The law on the Protection of theRights of the Elderly (Revised on Dec.28,2012) and Mental Health Law (Enacted onOct.26,2012), the establishment of Beijing Living Will Promotion Association(BLPA), and the pilot projects of living wills run by such hospitals as BeijingGeriatric Hospital. The institution of advance directives should be established in suchaspects as making, the time to take effect, legal effect, revocation, keeping, andliability. These include the following content: the person who can be a maker of anadvance directive, the persons who can be witnesses, the form and content of anadvance directive; the time when an advance directive should take effect, the legaleffect of an advance directive on the doctor and the healthcare proxy; in whichsituations an advance directive can be revoked by the maker; the keeping of anadvance directive, especially the register of an advance directive; the tort liabilityconcerned.