Legal Issues In Palliative Care: A Case Study On The Absence Of A Clear Advance Directives

Abstract

This research article aims to analyze legal gaps in palliative care under Section 12 of the National Health Act B.E. 2550 (2007), particularly in cases where terminally ill patients lack decision-making capacity and have not executed a Living Will in advance. Such situations create uncertainty regarding decisions to withdraw or withhold life-sustaining treatment by family members and may expose healthcare professionals to potential legal liability.

The study finds that the current provisions of Section 12 contain significant limitations and do not provide sufficiently clear legal recognition of surrogate decision-making by legal representatives or close relatives. When physicians discontinue treatment based solely on the consent of a patient's representative or family member, they may face both criminal and civil liability. A comparative analysis of foreign legal frameworks, including those of the Netherlands, the United States, and Taiwan, reveals that these jurisdictions have established clear legal mechanisms for determining the hierarchy of family members or surrogate decision-makers authorized to make healthcare decisions on behalf of incapacitated patients.

The study recommends amendments to Section 12 of the National Health Act B.E. 2550 (2007) to expressly recognize the authority of legal representatives or close relatives, according to a legally defined order of priority, to make decisions on behalf of patients regarding the withdrawal of treatment intended solely to prolong the dying process and to choose palliative care measures. Such legal reform would be consistent with the principle of human dignity, reduce practical conflicts and legal uncertainty, and promote the effective delivery of palliative care for terminally ill patients in Thailand.