Advance health care directive (or living will)
Legal situation in Austria
Since 1 June 2006, the prerequisites for and the effectiveness of advance health care directives (living wills) have been regulated by the Patientenverfügungs-Gesetz (the Living Will Act).
Advance health care directives (living wills) are oral or written statements by which the affected persons may for the future refuse certain kinds of medical treatments in the event of accident or illness. Thus such a person’s will is documented also if they should no longer be able to express their opinion, state their will or make decisions.
Advance health care directives (living wills) can only be drawn up by the affected persons themselves and not, for instance, by a custodian. When drawing up the deed, the persons affected must also be capable of reasonable and rational judgement and able to communicate.
There are two types of advance health care directives (living wills), namely the non-binding advance health care directive and the binding advance health care directive.
The non-binding advance health care directive (beachtliche Patientenverfügung) serves as guidance for doctors treating the person affected. It can be drawn up worldwide by the affected persons themselves. Doctors are, however, not strictly obliged to observe the content but have some room for interpretation as regards the treatment, provided in the context of the interpretation of the presumed will of the patient there is concrete and reasonable evidence that he/she might have wished for some other approach to be taken than is set out in writing in the advance health care directive. Persons who have drawn up such an advance health care directive are recommended to carry the deed with them.
The binding advance health care directive (verbindliche Patientenverfügung) must be observed by the doctors treating the patient. The establishment of such a deed is therefore governed by strict formal requirements. This provides the affected persons with the highest level of assurance that the provisions they have made in their advance health care directive will actually be observed. Thus it is only possible to establish the binding advance health care directive in writing and following prior medical consultation and counselling with a notary, lawyer or patients’ ombudsperson). This type of advance health care directive remains binding for five years unless the person affected defines a shorter period of time in the deed. It will only remain in effect for the respective longer period of time if it has been amended or renewed or in the event that or as long as the person affected has lost his/her ability to make a reasonable and rational judgement and to communicate.
"Patientenverfügungsregister" (Advance Health Care Directive Registers)
Advance health care directives may be registered against payment of a fee in the Advance Health care Directives Register (Patientenverfügungsregister, PatVR) operated by the Austrian Chamber of Civil-Law Notaries and in the Advance Health Care Directives Register operated by the Austrian Chamber of Lawyers. Registration is not mandatory and can also be performed by other notaries or lawyers. Currently, however, 24/7 access to the PatVR – by way of the 24 hours telephone hotline operated by the Austrian Red Cross – is only possible for Austrian hospitals or doctors in Austria. On-line queries may also be submitted to the Advance Health Care Directives Register operated by the Austrian Chamber of Lawyers.
The PatVR facilitates finding the respective advance health care directive if a health care event occurs. The directive’s content, however, is not shown in the register nor is any health care data stored in this register. It only shows the existence of a valid advance health care directive for the relevant person. Upon request, it is possible to scan in and save the directive in the deeds’ archive operated by the Austrian Chamber of Civil-Law Notaries so that it may – if required – be printed out by the Austrian Red Cross (Österreichisches Rotes Kreuz, ÖRK) and sent to the physician treating the person affected. The Advance Health Care Directives Register operated by the Austrian Chamber of Lawyers also enables the scanned-in picture of the directive to be saved.
In cases of emergency, doctors may lose valuable time when having to check whether a valid advance health care directive exists for the person they are treating. Should emergency medical treatment be necessary doctors are thus not obliged to check for the existence of an advance health care directive.
Information for Austrians abroad
Subject to the information being provided by a registered physician, the medical consultation and counselling meeting with a physician can also be held abroad. It is, however, recommended that the meeting records be translated. However, the consultation and counselling meeting regarding the legal consequences of a binding advance health care directive must be held with a notary, lawyer or patients’ ombudsperson licenced in Austria. Note: If the records of the medical consultation and counselling meeting are not written in the German language, it should be ensured that a translation be provided as otherwise the notary, lawyer or patients’ ombudsperson will – for liability reasons – not admit such records for further use. Furthermore, it might lead to problems if the health care event occurs and the physician treating the affected person is not able to read the foreign-language document. Whether the translation has to be certified or not is a matter of discretion and in case of doubt needs to be clarified with the notary, lawyer or patients’ ombudsperson involved.
The two “Patientenverfügungsregister” (Advance Health Care Directive Registers) explained below are not limited to principal residence addresses in Austria but explicitly enable foreign addresses. Thus these registers are also open to Austrians abroad and other persons residing abroad.