Advance directives have been legal in Spain since 14 November 2002. The Basic Law 41/2002 regulating the Autonomy of the Patient and Rights and Duties related to Clinical Information and Documentation is applicable throughout the whole of Spain. It permits people to state their wishes with regard to medical treatment whilst they still have the capacity to do so.

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

In order to write a valid advance directive, a person must be at least 18 years of age, free from pressure and have the necessary capacity to do so.

In Spain, everyone is presumed to have capacity unless proven otherwise. Therefore, unless a person has been declared legally incompetent, they can write an advance directive. If the document is signed in the presence of a notary, the notary has to confirm that the person has the necessary capacity to sign such a document. However, it is not necessary to involve a notary.

In most of the autonomous communities advance directives are made either in the presence of a notary or privately with three witnesses. These witnesses should be named and also sign the advance directive. It is presumed that by signing the document they are also confirming that the person writing the advance directive has the capacity to do so. Two out of the three witnesses must not be family members or have any economic/business relationship with the person making the advance directive. In some autonomous communities, where very few advance directives are made, it is possible to just sign the document in front of a health care professional or the person who is in charge of the advance directives registry.

Several autonomous regions have advance directive registries so people writing advance directives must ensure that they follow the formal procedure of the region in which they reside. Legislation is pending to create a national register for advance directives.

Other conditions governing the validity of advance directives include the following:

• The instructions contained in the advance directive should not be against the law;
• The instructions contained in the advance directive should not be contrary to “lex artis” or good medical practice;
• The circumstances must correspond to those previously envisaged.

Advance directives are not limited to a set period of time.

What an advance directive can cover

The Basic Law 41/2002 does not specify what an advance directive can or cannot cover. It can therefore be presumed that it could cover:

• The treatment of medical conditions;
• The treatment of a psychiatric condition;
• Care and welfare decisions;
• Research;
• Basic care;
• Life-supporting treatment; and
• Life-saving treatment.

It can also be presumed that advance directives could cover the appointment of a health care proxy, information about a person’s beliefs, philosophy of life or ethical principles, values, situations in which the instructions should be taken into account, organ donation etc. (Rovira, 2004)

Obligation to comply with instructions contained in an advance directive

With regard to the refusal of life-supporting and life-saving treatment, some lawyers point out that doctors are faced with the conflicting duty of complying with the patient’s request and fulfilling their own obligation to preserve life and maintain health. Nevertheless, the law states that doctors can only ignore instructions contained in an advance directive if the instructions are against the law, contrary to good medical practice or do not correspond to the situation previously envisaged. If a doctor fails to comply with instructions contained in an advance directive and cannot justify the decision on the basis of the three above-mentioned conditions, he/she must state why the patient’s instructions were ignored.

Amending, renewing and cancelling advance directives

Advance directives can be amended, renewed or cancelled at any time provided that the person has the necessary capacity to do so. This must be done in writing. Some people involve a notary or the organisation EXIT. It is unlikely that a person lacking capacity would be allowed to withdraw an advance directive. If several advance directives have been made, the last one will be considered valid and any previous ones considered invalid.