Healthcare and decision-making in dementia
Consent to medical treatment
Under the Physician’s Profession Act of 5 December 1996, in order to carry out examinations or provide other medical services doctors must have first obtained the consent of the patient. If the patient does not have sufficient capacity to consent, it may be given by his/her legal representative. If s/he does not have one or the legal representative cannot be contact, then the Guardianship Court must provide consent.
The issue of consent to medical operations is also addressed in the Penal Code. Article 192 states that whoever performs a medical operation without the consent of the patient shall be subjected to a fine or up to 2 year’s imprisonment.
According to Art. 34.1 of The Physician’s Profession Act 1996, the patient has the right to express his/her written consent to surgical operation or application of treatment methods.
Consent in case of emergency
It is possible for a doctor to examine or treat a person without prior consent if immediate medical attention is needed and there is no time to obtain consent, or alternatively, if the patient is incapable of expressing his/her will "due to advanced age“ and his/her legal or de facto representative cannot be contacted (art. 33, §1) (Kiejna et al., 2008).
The right to refuse consent
The patient has the right to express his/her consent to accept defined health services or to refuse them after having been granted appropriate information. The consent of the patient, and in the case of minor patients or persons incapable of expressing their wishes, the consent of the legal representative or the guardian-in-fact or guardianship court, is the basis for a physician to act. (The Ministry of Health Charter of Patient Rights , December 1998)
NB. Patients’ rights are regulated in many different legal acts. The most important one is the Act of 30 August 1991 on Health Care Institutions. The general right to health care of every citizen is granted in article 68.1 of the Polish Constitution.
The right to withdraw consent
There is no provision with regards to the withdrawal of consent in the case of a normal medical treatment. The patient has the right to express consent to medical experiment, after having obtained information on aims, conditions, methods, benefits, risks as well as has the right to withdraw consent to such an experiment (Art.24 and 25.1 of the Health Care Institutions Act,1991).
Consent to non-conventional treatment
The patient has the right to express, orally or in writing, his/her consent to ANY treatment (Art.32.1 and 7 in The Physician’s Profession Act of 5 December, 1996 and Art.19.1 in the Health Care Institutions Act of 30 August 1991).
The patient has the right to express consent to medical experiment, after having obtained information on aims, conditions, methods, benefits, risks as well as has the right to withdraw consent to such an experiment (Art.24 and 25.1 of the Health Care Institutions Act,1991).
Consent to the donation of organs and/or human tissue
Under the Donation, Storing and Transplantation of Human Cells, Tissue and Organs Act of 1 July 2005, the patient has the right to
- express consent to donate his/her organs or tissue (Art. 9.1, p.7)
- express his/her refusal to donate organs and tissue after his/her death as well as to withdraw such refusal at any time (Art.4 and 5)
- personal data protection in connection with donation or transplantation of his/her organs(art.12.1)
Consent to research
According to Kiejna et al. (2008), the legal representative of a person entirely lacking capacity can consent to “healing research” on his/her behalf. If the person lacking capacity is nevertheless capable of voicing an opinion on the matter, his/her written consent should also be obtained. If the legal representative refuses to consent to such research, consent can be sought from the guardianship court.
For people with full legal capacity who are not able to give their opinion about proposed healing research, the guardianship court can consent on their behalf.
If it is not possible to delay the healing research on account of imminent danger to life, consent is not necessary.
Consent to clinical trials
Under Art. 37 b.2 p.2 and Art. 37 f of the Pharmaceutical Act of 6 September 2001, the patient has the right to express his/her consent to clinical trials and the right to withdraw such consent. The physician is obliged to give the patient detailed information on the procedure, methods and risks involved in participating in a clinical trial.
Advance directives and health care proxies
There is no legal framework n Poland for the use of advance directives in healthcare and for end-of-life decision making (Kiejna et al., 2008)
Access to information/diagnosis
The right to be informed
Under art. 31.1-3 of the Physician’s Profession Act of 5 December 1996, as well as Art.19.1 p.2 of The Health Care Institutions Act of 1991, the patient, or his legal representative, has the right to be informed about his/her health condition, diagnosis, suggested treatment methods, treatment results. The physician is obliged to provide to the patient or his/her legal representative clear information on health condition, diagnosis, suggested and possible diagnostic and treatment methods, foreseeable consequences of their application or omission, results of treatment progress. The scope and object of information is very broad. The physician can only hide such information, when the patient expresses such a wish or demand.
The right to access medical files
Under Art.18 § 52 of The Health Care Institutions Act, the patient has the right to access both individual and collective health files. Access to the individual medical documentation in the health care institutions should be provided through an oral or written request of the patient or his/her legal representative. The patient has the right to access the collective medical documentation upon the written request. Access is limited to the data of the patient. The patient has the right to request copies and certified copies of his/her medical documents.
The right to designate another person to be informed on one’s behalf
Under The Health Care Institutions Act 1991, Art. 20.2, 26 and The Physician’s Profession Act 1996, Art. 31.2, the patient has the right to appoint another person to be informed about his/her health by the doctor.
The doctor’s right to withhold information
The physician may withhold information only on request or demand of the patient (Art. 31 of The Physician’s Profession Act of 5 December 1992). However, according to Art. 31.4 of The Physician’s Profession Act, in special circumstances, when prognosis is unsatisfactory, a physician may limit the amount and scope of information on patient’s condition, if the physician regards it as in the patient’s good interest. In such cases the physician informs the patient’s legal representative or a person who has been authorised by the patient to obtain information on his/her behalf.
The patient’s right to refuse information
Under the 1996 Physician’s Profession Act, Art.31.3, the patient has the right to ask the doctor not to disclose information on his/her condition.
Confidentiality/disclosure of information to other people
Medical secrecy is recognized in penal and civil procedures. According to Article 261.2 of The Code on Civil Procedure, as a witness at the Civil Court, the physician has to invoke the medical secret and refuse to give protected information. The obligation to keep information confidential can be lifted by The Court. According to Article 180.2 of The Code of Penal Procedure, during the examination of the physician, medical secret can be lifted only when it is justified by the common interest, and there is no other possibility to obtain information in any way.
A physician has the duty to maintain confidential any information related to the patient and obtained while performing hi/her duty. Without the patient’s consent, a physician cannot reveal any information to the patient’s family members, unless the interest of the patient requires it, but not when the information may be used against the patient (e.g. in a divorce case).
On 29 August 1997, the Protection of Personal Data Act was adopted. It stipulates that everybody has the right to the protection of his/her personal data, including medical data.
End-of-life care and issues
Under the Constitution of 2 April 1997, every citizen has the right to health protection and the authorities should provide equal access to health services financed from public funds. Among such health services, listed in The Health Institutions Act, as well as in Article 15 of The Health Services Act of 27 August 2004, there is palliative and hospice care, available both for adults and children. For the past two years the Ministry of Health has been working on a new regulation on standards and medical procedures applied in palliative care in health institutions.
There are over 500 facilities in Poland specially designed to offer palliative care, run by the state or non-profit organizations. They mostly admit cancer patients. It is rather uncommon for persons with dementia to be admitted to such institutions.
Special leave for carers in paid employment (to care for a terminally ill person)
People who care at home for an adult member of their family, regardless of the diagnosis, are entitled to 14 days’ sick leave in one year as well to a care benefit under The Family and Care Code of 25 February 1964, revised on 7 October 2007, and The Social Benefits Act of 25 June 1999, articles 32.1 and 33.1 and 2. Those carers/parents who look after sick children of up to 8 years old are entitled to 60 days’ leave each year. They need a certificate from a doctor, who is responsible for the patient’s treatment, to prove they are entitled to such leave. There is no regulation regarding terminally ill patients and their carers who might be entitled to special benefits or leave.
The following extracts from the Penal Code may be of relevance to the issue of euthanasia and assisted suicide (including murder at the request of the victim and non assistance to a person in grave danger).
§ 1. Whoever kills a human being on his/her demand and under the influence of compassion for him/her shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.
§ 2. In some extraordinary circumstances the court may apply an extraordinary mitigation of the penalty or even renounce its imposition.
Whoever by persuasion or by rendering assistance induces a human being to make an attempt on his/her own life shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.
Non-assistance to a person in danger
§ 1. Whoever does not render assistance to a person who is in a situation threatening an immediate danger of loss of life, serious bodily injury, or a serious impairment thereof, when s/he could do so without exposing him/herself or another person to the danger of loss of life or serious harm to health shall be subject to the penalty of deprivation of liberty for up to 3 years.
Murder at the request of the victim
According to the Penal Code (Article 151) this is regarded as a serious crime. However, in extraordinary situations, the judge can even renounce the imposition of a penalty.
European Association for Palliative Care (2006), Report on palliative care in Poland, http://www.eapcnet.org/download/forPolicy/Poland.pdf
Kiejna, A., Rymaszewska, J. and Hadryś, T. (2008), Practice of competence assessment in dementia: Poland. In Ed. Gabriela Stoppe (2008), Competence assessment in dementia, Springer Wien New York.
Last Updated: mercredi 27 avril 2011