I. ÚS 1594/22

The First Panel of the Constitutional Court (Justice Rapporteur Jaromír Jirsa) rejected the complainants’ constitutional complaint against the judgment of the Supreme Court ref. No 25 Cdo 961/2021-724 of 28 February 2022 and the judgment of the Regional Court in Hradec Králové – Pardubice Branch ref. No 23 Co 350/2018-667 of 29 October 2020.

The complainants are the children of the deceased patient. Before her death, the patient was hospitalised in a hospital in the Pardubice Region, where she suffered a cardiac arrest and died on 6 July 2013. She was sixty-seven years old at the time. The key issue in the case was 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 close relatives. In the proceedings before the general courts, the complainants, as survivors, sought payment of CZK 720,000 from the hospital as compensation for the harm caused by the death. The Court of First Instance granted the action and ordered the hospital to pay CZK 240,000 to each applicant because, in its view, the hospital breached its legal duty by failing to inform the patient of the DNR order even though she was able to comprehend such information. The Court of Appeal reversed the decision of the Court of First Instance and dismissed the action. It concluded that although the hospital had breached a legal duty, the causal link between the consequence (the patient’s death) and the unlawful conduct (issuing the DNR order without informed consent and subsequently not performing resuscitation) had not been established. The Supreme Court dismissed the complainants’ appeal on points of law. It concluded that a health care provider is not obliged to pay survivors a one-off compensation for other than proprietary harm caused by the loss of a loved one if doctors did not perform cardiopulmonary resuscitation during a cardiac arrest of a patient whose condition was so serious that resuscitation would not have restored 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 their constitutional complaint, the complainants argued that the hospital had violated the patient’s right to life, thereby directly interfering with the private and family life of the complainants as survivors. The actions of the attending doctors, who issued the DNR order without informing the patient and her family, and subsequently did not resuscitate the patient, constituted unlawful conduct. The patient’s death occurred earlier than would have been the case if resuscitation had been performed. The resuscitation could theoretically have prolonged the patient’s life by minutes, hours, days or months, albeit a life of reduced quality. 

The Constitutional Court, after thoroughly learning the contents of the procedural file and all available supporting documents, including the statement of the Czech Medical Chamber and the opinion of the Department of Medical Ethics and Humanities of the Third Faculty of Medicine of Charles University, requested by the Court, rejected the constitutional complaint. In doing so, the Constitutional Court addressed both the previously expressed wishes of patients in general and the specific DNR order in the complainant’s case. Medical intervention against a person with the capacity to decide his or her own fate may in principle be carried out only with the free and informed consent of that person, even if the refusal of the intervention leads to his or her death. In general, patients may rely on the concept of a previously expressed wish (which may consist of a DNR order), but this must be approached with consistence to avoid similar situations of subsequent litigation or the survivors’ confusion about the order. 

Patients should be informed about the possibility to consent to not receiving treatments that would be useless, unnecessary and temporarily delay the moment of physical death, and they should receive such information while they are still able to comprehend the consequences of such a decision and to give truly free and informed consent. Such patients must be in a state where they still see the weight of their own decision. Also, their close relatives should be clearly and understandably informed by physicians about the possibility of a DNR order. In a situation where the person is unable to comprehend the consequences of receiving or refusing treatment and is therefore unable to give the relevant consent, the (by its nature final) decision to refuse further treatment is primarily in the hands of the doctors. However, the doctors’ decision should also be made, as far as possible, after a broader medical consultation, transparently and, above all, with respect for the participation rights of patients and their close relatives. The doctors must communicate sufficiently with patients and their loved ones about the options. Should they fail to do so, they may interfere with the natural rights of the relatives. According to the Constitutional Court, the DNR order must be a decision that balances the ethical, religious, medical, and constitutional aspects of the patient’s departure from life as sensitively as possible. Therefore, it is necessary discuss death as an integral part of every person’s life, not only with patients but also with their loved ones.

The Constitutional Court concluded that if the patient is fit to give (or withhold) informed consent at the time when resuscitation is required, the patient’s previously expressed DNR instruction, made under the concept of a previously expressed wish, must be taken into account. When deciding whether to perform cardiopulmonary resuscitation at the end of life, it is generally necessary to balance the right to life and the protection of health on the one hand and the right of individuals to dignity at the of their natural life on the other. The right to life and the protection of health does not imply an unconditional obligation for doctors to perform cardiopulmonary resuscitation regardless of the particular patient’s condition, even though such resuscitation might delay physical death for a certain period of time. Nevertheless, an unilateral DNR order by doctors without informing or involving the patient (or, in certain circumstances, his or her relatives) in the decision-making process may violate the patient’s (or the relatives’) right to participation and, therefore, the patient’s (or the relatives’) right to personal integrity and respect for family and private life under Article 7(1) of the Charter and Article 8 of the Convention.

The general courts themselves do not dispute the core of the complainants’ argument regarding the process of issuing a DNR order – quite the contrary. They concluded that the attending doctors erred when they issued the DNR order unilaterally without consulting the patient or her loved ones. However, the complainants’ claim was for a one-off compensation for the death of a loved one, not for other than proprietary harm caused by the violation of the patient’s or their own rights of participation (as loved ones), which was the main reason for the dismissal of their claim. The courts based their decision on the differing nature of the claims under Section 444(3) of the Civil Code and the general claim for compensation for other than proprietary harm within the meaning of Section 13(2) of the Civil Code. According to the general courts, the purpose of the aforementioned claim is to compensate the survivors for the unexpected death of a close person, where the consequence of the unlawful conduct is the direct and unexpected loss of life or the thwarting of the restoration of good health, not the violation of the autonomy and participation rights of the patient (or his or her relatives). Not prolonging the process of dying at the end of a long-term patient’s life for a short period of time cannot be linked with the act of killing within the meaning of Section 444(3) of the Civil Code. 

Although it is clear from the evidence that the doctors did not include the patient or her family in their assessment of whether a future resuscitation was a reasonable and appropriate treatment in her case, this does not mean that they violated her right to life. Not prolonging death at the end of a long-term patient’s life – whether by a few minutes or a few months – cannot be considered the same as outright killing the patient. If the Court of Appeal properly instructed the complainants on the distinction between the claims under Sections 13(2) and 444(3) of the Civil Code, the dismissal of their claims cannot constitute a violation of their fundamental rights.