Diretivas antecipadas de vontade e atuação do médico: os limites bioéticos e jurídicos ao exercício da autonomia das partes

Abstract

This article addresses the use of the prior declaration of will, an instrument that guarantees the right to decide on the care of the terminally ill patient, especially those related to the end of life, taking into account the constitutionally protected fundamental principles and rights. The considerations on the theme, follows on the recognition of the individual freedom of the human being and the autonomy on his own body, his self-determination in relation to his own physical and mental health, autonomy in the context of the doctor-patient relationship, in short, on the human dignity. Although the Brazilian legal system does not have a specific law to regulate the living will, the interpretation of constitutional and infraconstitutional rules allows concluding to be valid to guarantee the autonomy and dignity of the patient because, in addition to guaranteeing the patient's will, it binds the doctors, without taking taking into account the position of family members. Furthermore, it is important to distinguish between euthanasia and orthothanasia, since only the latter is allowed in Brazil, it is the correct death that appreciates palliative care, respecting death in due time, a presupposition for autonomy. Finally, the doctor's decision and participation is highlighted, stressing that the violation of the living will, by the medical professional, gives rise to civil liability. The purpose of this article is to promote a reflection on medical practice in adequate compliance with the protection of the legal assets involved so that the patient's will prevails in processes related to the end of his existence.