Healthcare and decision-making in dementia
Consent to treatment
Paragraph 759 of the Law of Obligations Act of 26 September 2001 (hereafter referred to as LOA) states that the provision of health care services is based on a contract between the patient and the health care professional. This contract is deemed to have been entered into:
- upon commencement of the provision of health care services or assumption of the obligation to provide health care services with the consent of a patient;
- if commencement of the provision of health care services to a patient without the capacity to exercise his or her will corresponds to his or her actual or presumed intention.
According to §766 of the LOA, a patient may be examined and health care services provided only with his or her consent. Such consent may be withdrawn within a reasonable period of time after having granted it. The provider of health care services may ask for such consent or an application to withdraw such consent in writing.
Consent for people with restricted active legal capacity
For patients with restricted active legal capacity, their legal representatives can act on their behalf insofar as they themselves are unable to consider the pros and cons responsibly. If it seems that the decision of a legal representative is not in the interests of a patient, the provider of health care services is not obliged to comply with the decision.
Consent for people with incapacity to express their will
§ 767 of the LOA covers the provision of health care services to patients without capacity to exercise their will and for whom a legal representative cannot be reached. It also states the necessity to consider previously expressed wishes and presumed intentions. No direct reference is made to advance directives. The text is as follows:
(1) If a patient is unconscious or incapable of exercising his or her will for any other reason (a patient without the capacity to exercise his or her will) and if he or she does not have a legal representative or his or her legal representative cannot be reached, the provision of health care services is permitted without the consent of the patient if this is in the interests of the patient and corresponds to the intentions expressed by him or her earlier or to his or her presumed intentions and if failure to provide health care services promptly would put the life of the patient at risk or significantly damage his or her health. The intentions expressed earlier by a patient or his or her presumed intentions shall, if possible, be ascertained using the help of his or her immediate family. The immediate family of the patient shall be informed of his or her state of health, the provision of health care services and the associated risks if this is possible in the circumstances.
(2) Within the meaning of this Chapter, immediate family means the spouse, parents, children, sisters and brothers of the patient. Other persons who are close to the patient may also be deemed to be immediate family if this can be concluded from the way of life of the patient.
The right to withdraw consent
Patients have the right to withdraw consent within a reasonable period of time after having given it (§766, 3, LOA). The doctor has the right to request that this be provided in written form.
Consent to non-conventional treatment
Paragraph 763 addresses the issue of non-conventional methods of treatment. A method of prevention, diagnosis or treatment which is not generally recognised may be used only if conventional methods are not likely to be as effective, if the patient is informed of the nature and possible consequences of the method and if the patient has granted his or her consent to the use of the method.
Consent to such treatment may be given by the legal representative of a patient with restricted active legal capacity. A generally unrecognised method may be used in respect of a patient without the capacity to exercise his or her will without the consent of the patient or his or her legal representative if failure to use the method would put the life of the patient at risk or would significantly damage his or her health.
Consent to the donation of organs and/or human tissue
The Transplantation of Organs and Tissue Act of 30 January 2002 establishes the conditions and procedure for the transplantation and removal of organs and tissue of human origin. People with limited legal capacity may not normally be donors. The conditions which allow them to donate organs or tissue are:
- Regenerative tissue is transplanted
- There is no compatible donor available who has active legal capacity
- The recipient is a brother or sister of the donor
- Consent of the legal representative and permission of an administrative court judge for transplantation has been obtained
- The potential donor concerned does not object to transplantation.” (Chapter 2, 2, 1-5)
Consent to research
Paragraph 138 of the Penal Code deals with the illegal conduct of human research. It states that the conduct of medical or scientific research on a person who has not granted consent thereto, pursuant to the procedure prescribed by law, or who before granting such consent was not notified of the essential potential dangers arising from the research, is punishable by a fine or up to 3 years’ imprisonment. The same act, if committed by a legal person, is punishable by a fine.
Consent to the donation of genes
The Human Genes Research Act of 13 December 2000 contains a paragraph on the consent of people with restricted active legal capacity to become gene donors. Paragraph 20 states that their consent is deemed valid provided that the person with restricted active legal capacity and his/her legal representative or guardian have been given the information (described in the law); that the guardian or legal representative has given consent and that the person is not opposed to providing a tissue sample or to the collection of information about his/her state of health.
According to Antis Nömper (Alzheimer Europe, 2006), advance directives are legally binding by virtue of article 767 of the Law of Obligations (mentioned earlier). Doctors cannot be obliged to provide treatment that is not in the best interest of the patient but can be obliged to discontinue treatment.
Access to information/diagnosis
The right to be informed
Informed consent is dependent on the patient having received the necessary information to make an informed decision. The following extracts are taken from the Law of Obligations Act of 26 September 2001 (§ 766):
(1) The provider of health care services shall inform the patient of the results of examination of the patient, the state of his or her health, any possible illnesses and the development thereof, the nature and purpose of the health care services provided, the risks and consequences associated with the provision of such health care services and of other available and necessary health care services. At the request of the patient, the provider of health care services shall submit the specified information in a format which can be reproduced in writing.
(4) In the case of a patient with restricted active legal capacity, the legal representative of the patient has the rights specified in subsections (1) (..../....) insofar as the patient is unable to consider the pros and cons responsibly. If the decision of the legal representative appears to damage the interests of the patient, the provider of health care services shall not comply with the decision. The patient shall be informed of the circumstances and information specified in subsection (1) of this section to a reasonable extent.
Access to medical files
Under article 769 of the Law of Obligations grants patients the right to access their medical files and to obtain copies at their own expense (unless otherwise provided by law).
The doctor’s right to withhold information
There is no law covering the therapeutic exception in Estonia (Nys et al., 2007).
The patient’s right to refuse information
A patient has the right to refuse the above-mentioned information and the health care provider must respect this decision provided that the legitimte interests of the patient or other people are not damaged by this non-disclosure (§766).
Confidentiality/disclosure of information to other people
Paragraph 157 of the Penal Code covers the violation of the obligation to maintain confidentiality of secrets which have become known in the course of professional activities. This paragraph states that the disclosure of information obtained in the course of professional activities and relating to the health, private life or commercial activities of another person by a person who is required by law to maintain the confidentiality of such information is punishable by a fine.
End-of-life care and issues
It is stated in a report by the steering committee on bioethics (Council of Europe, 2003) that neither suicide nor assisted suicide is punishable in Estonia.
According to the European Association for Palliative Care (2006), there are no initiatives in Estonia seeking the legalisation of euthanasia or assisted suicide.
Non-assistance to a person in danger
Non-assistance to a person in danger is covered by paragraphe 124 of the Penal Code:
§ 124 Refusal to provide assistance
Knowing refusal to provide assistance to a person who is in a life-threatening situation due to an accident or general danger, although such assistance could be provided without endangering the person providing assistance, is punishable by a fine or up to 3 years’ imprisonment.
Manslaughter and negligent homicide
Whilst there is no direct reference in the Penal Code to euthanasia or assisted suicide, the following paragraphs might nevertheless be relevant:
§ 113 Manslaughter
Manslaughter is punishable by 6 to 15 years’ imprisonment.
§ 117 Negligent homicide
Killing another person through negligence is punishable by up to 3 years’ imprisonment.
Alzheimer Europe (2006), The use of a dvance directives by people with dementia , Alzheimer Europe
European Association for Palliative Care (2006), Report on palliative care in Estonia, http://www.eapcnet.org/download/forPolicy/Estonia.pdf
Nys, H et al. (2007), Patient rights in the EU – Estonia , European Ethical-Legal Papers, N°5, Leuven
Steering committee on bioethics (2003), Results of questionnaire, Council of Europe: http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Bioethics/Activities/Euthanasia/Answers%2520Euthanasia%2520Questionnaire%2520E%252015Jan03.asp#TopOfPage
Last Updated: mercredi 27 avril 2011