There is currently no specific legislation relating to advance directives at federal level in Switzerland. However, in a few cantons (e.g. Aargau, Appenzell, Ausserrhoden, Genf, Lucerne, Wallis and Zurich), advance directives are covered by health care legislation. For example, in the Health Law of 1996 of the canton of Vallais, article 20 states:

1. Everyone can make an advance directive concerning the type of care that they would or would not like to receive in specific situations when they are no longer able to express their wishes.
2. In the same way, everyone can designate a person who will be responsible for making decisions on their behalf concerning the choice of care to be provided in these same circumstances.

If such a law exists, then advance directives must be respected. Otherwise, there tends to be a lack of legal clarity although in “doctrine” and according to jurisprudence the general opinion is that they should be respected as long as they correspond to the current situation and there is no indication that the patient’s will has changed.

Advance directives are also governed by laws related to the protection of privacy and personal liberty (article 27 of the Swiss civil code and article 10 of the constitution). However, there are different legal organisations in each canton which are responsible for the enforcement of these laws.

In the foreseeable future, there will be a reform (at federal level) of the guardianship law which will be known as the “Erwachsenenschutzrecht”.

Article 370 of this law proposal allows for a competent adult to appoint in writing one or more people who in the event of his/her incapacity can consent to medical treatment on his/her behalf (i.e. a health care proxy).

The law proposal also deals with advance directives. Article 373 states that a person can write an advance directive covering the acceptance or refusal of medical treatment.

Conditions surrounding the writing, validity and registering of an advance directive

There is no time limit on the duration of advance directives. However, in the reform on guardianship, it is proposed that the appointment of a health care proxy should only be valid if the person who made the appointment loses capacity within 10 years. It is also planned in the reform that the appointment of a health care proxy should be publicly certified and the document deposited at an official organisation.

With regard to advance directives, it is specified in the law proposal that an advance directive must be sufficiently precise, correspond to the author’s presumed wishes and be an expression of the author’s free will.

It is not necessary to have witnesses or to involve officials when writing an advance directive. The document must however be in writing or print and must be signed. Several organisations (e.g. the Swiss Patients Organisation) have ready-made advance directives that people can use.

Capacity is presumed but in case of doubt, experts are called in to try to determine whether the author of the advance directive had the necessary capacity at the time the document was produced.

What an advance directive can cover

There are no conditions regarding the content of advance directives. They cannot, however, contain wishes or instructions that are against the law e.g. for active euthanasia. Consent or refusal of life-supporting and/or life-saving treatment is possible.

Obligation to comply with instructions contained in an advance directive

It is generally accepted that doctors should comply with instructions/wishes contained in an advance directive provided that the conditions for making a valid advance directive have been fulfilled. In case of doubt, relatives should be consulted and, if need be, an ethics committee and guardianship officials. Such provisions can be found in certain cantonal laws.

Doctors are not obliged to comply with an advance directive if there are grounds to believe that the document no longer corresponds to the patient’s wishes. This is difficult to determine once a person has lost capacity. However, in the law of the canton of Aargau, in case of doubt doctors are expected to decide in favour of the suspected will and interests of the patient.

Amending, renewing and cancelling advance directives

An advance directive can be amended, renewed or cancelled at any time.