2009: Healthcare and decision-making in dementia
Consent to medical treatment
Patients must consent to all forms of medical treatment. This is based on the notion of a civil law contract. Consent can be explicitly stated or implicitly implied by the act of turning up for the treatment or consulting the doctor. However, the consent must be related to a specific form of treatment of which the patient is aware of the implications. It is not necessary for consent to be expressed in writing although in practice, in many hospitals patients are asked to sign a form as proof that they were fully informed about the treatment and then consented to it (Leenen et al., 1994).
According to section 8 of Federal Hospital and Convalescent Homes Establishment Law of 1957 (KAKuG), special curative treatment, including operations, can only be carried out with the person's consent. If the person is incapable of consenting, consent can be given by their legal representative. Also, as stated in the section on guardianship (§ 282 of the General Civil Law), the guardians (trustees) are responsible for ensuring the medical and social care of their wards. According to § 283 of the General Civil Law, the Court must give authorisation, if the guardian’s consent to treatment is expected to have a lasting or serious impact on the person’s health. If the person in question does not resist the treatment, the guardian can also give consent provided that s/he has obtained independent expert advice.
The recent changes in guardianship law, which came into force on 1 July 2007, allow for two other possibilities, namely consent by a next of kin who has been granted agent’s authority (Vertretungsbefugnis nächster Angehöriger) or consent by a person (i.e. a trustee) who has a durable power of attorney (DPoA/Vorsorgevollmacht).
For example, it is possible for a competent person to appoint someone to make health care decisions on their behalf at a time in the future when they no longer have the necessary capacity to make health care decisions themselves. This is called a durable power of attorney for legal representation (referred to hereafter as DPoA). The DPoA only becomes effective when the person granting it loses legal capacity, insight and judgement or the ability to express him/herself (as attested by a medical certificate). A DPoA can cover all medical decisions (including serious medical treatment with lasting effect) provided that it was drawn up before an attorney-at-law, notary public or court and that the power to make such decisions was correctly registered in the document.
The next of kin who has been granted agent’s authority can only consent to treatment which is not expected to have a lasting or serious impact on the person’s health such as:
- The treatment of straightforward medical conditions (for more complicated conditions/treatment, the consent of an appointed guardian is necessary, or consent by a person who has a durable power of attorney (DPoA));
- The treatment of a psychiatric condition (for simple treatment only; if the person has been interned in a closed department or psychiatric institution, the law on forced internment would apply, or consent by a person who has a durable power of attorney (DPoA));
- Care and welfare decisions.
As next of kin are supposed to make decisions that are in the interests of the person they are representing, the refusal of basic care would not be justified. Basic care does not include artificial nutrition.
Under the Austrian Penal Code (§ 110), anyone who treats another without his/her consent, even if this is in accordance with the rules of medical science, is liable to a prison sentence of up to six months or a fine. The perpetrator will only be prosecuted if the person who received the unauthorised treatment so requests.
Consent to treatment under the Internment Law
The Internment Law contains a section on the treatment of people who are unable to consent (§§ 35-37). Provided that it would not be detrimental to the person's wellbeing, the reason and significance of the treatment must be explained to him/her or his/her legal representative e.g. to the guardian if one has been appointed with responsibility in this domain, or to a trustee (a person who has a durable power of attorney). An explanation can also be given to the patient's advocate on request.
If the patient is able to understand the reason and significance of a course of treatment and if s/he is able to express his/her will on this issue, treatment cannot be carried out against his/her will. In such cases, certain forms of medical treatment (such as treatment with long-term side effects or surgical intervention) can only be carried out with his/her consent and this must be in writing.
If, on the other hand, the person is unable to understand the reason and significance of the treatment, but has a guardian with the relevant responsibility for treatment decisions, the guardian must give consent. In the case of particular forms of treatment including surgical intervention, consent from the trustee must be in writing. For interventions with serious and lasting effects the Court must give authorisation: If the person requiring treatment is unable to consent and has no legal representative, the Court decides whether treatment should be carried out. Consent to all forms of treatment can be given by the trustee (a person who has a durable power of attorney).
In the case of urgent treatment, consent and/or approval from the Court is not necessary. The ward manager decides on the necessity of the treatment and then informs the legal representative or if the person does not have one, the patient's advocate.
Consent in case of emergency
Treatment without consent would not lead to prosecution under § 110 of the Austrian Penal Code if the person was treated on the assumption that postponement of the treatment would have seriously endangered his/her life or health, unless, of course, the supposed danger did not exist and the person providing the treatment would have been aware of this had the necessary care been taken. This is also echoed in the KAKuG.
The right to refuse treatment
In the exact same manner as patients (or their representatives) must consent to all forms of medical treatment, they can refuse treatment. If a guardian’s refusal of treatment would endanger the health of the person in question consent to treatment can be given by the Court. Treatment without consent is forbidden by the Penal Code.
Consent to non-conventional treatment
For certain forms of non-conventional treatment (e.g. craniosacral therapy or Traditional Chinese Medicine), the aforementioned rules for consent apply. However, some forms of non-conventional treatment (e.g. mental healing or faith healing) are not officially recognised as treatment and would not be offered in the context of the official healthcare system.
Consent to organ donation
Article 62a of the KAKuG stipulates that it is illegal to remove the organ of a person who made a declaration before his/her death expressly refusing organ donation. Such a declaration could equally be made by a person's legal representative.
Consent to clinical trials
Participation in clinical trials is governed by the Medicaments Law (N°185) of 1983 (Leenen et al., 1993). Participants must consent to their participation and such consent is only valid if they are capable of managing their own affairs, able to understand what is involved, aware of the significance of the trial and aware of any dangers involved. If a person fulfils these conditions and decides to participate, s/he retains the right to withdraw from the trial at any time. A person who has been interned (in a psychiatric ward or a nursing home) cannot give consent to clinical trials. According to § 284 of the General Civil Law, a guardian can only give consent in the exceptional case that the treatment provides immediate benefit to the health of the person in question. Authorisation from the Court is necessary.
Paragraph 8c of the KAKuG states that founders of hospitals and clinics are obliged to set up ethics committees to assess clinical tests of medicines and medical products and the application of new medical methods in the hospital or clinic. Assessments must pay particular attention to the people taking part in the research, the relationship between the target and the scientific meaningfulness and between usefulness and risk, the manner in which experimental subjects are selected, the way information in given and consent obtained and the precautions against possible damage to participants.
Consent to research
Consent to research follows the same rules as consent to clinical trials.
Advance directives/living wills
The legal status of advance directives in Austria
According to § 10 of the Hospital Establishment Law of 1957 (KAKuG), it is obligatory when recording a patients’ case history in hospitals and clinics to document instructions from the patient regarding certain forms of treatment which should not be carried out in the case of future incapacity. These instructions must then be taken into account by doctors in the event of the patient’s future incapacity.
In Austria, it is possible to write an advance directive (sometimes called a “living will”) (“Patientenverfügung”) and/or to appoint a trusted person to act on one’s behalf (“Vorsorgevollmacht”/DPoA). The duties of the trusted person may be limited to financial, administrative and/or care issues, but may also (or alternatively) cover health care decisions.
On 1 July 2006, the 55th Federal Act on Living Wills (the “Patienten-verfügungsgesetz – PatVG”) came into force. This act regulates the requirements and effectiveness of living wills. The law divides living wills into those that are binding and those that are non-binding.
Conditions surrounding the writing, validity and registering of an advance directive
A person making a living will should have the capacity for insight and judgement (§ 3). In a binding living will, any medical treatments that are to be refused must be concretely described or be clear from the overall context of the document. It must be clear that the person making the living will appropriately evaluates the consequences of the living will (§ 4).
Before writing the living will, the person must consult a doctor in order to obtain information about the nature and consequences of the living will for medical treatment. The doctor providing such information must also confirm the person’s capacity for insight and judgement by indicating his/her name and address and signing the document. S/he must also confirm that the person has appropriately evaluated the consequences of the living will and give examples to demonstrate in what way (§ 5).
If the doctor providing information in this context is of the opinion that the patient does not have the necessary insight and judgement to draw up a living will, s/he shall document this, if applicable, in the patient’s medical history (§ 14).
§ 10 states that a living will is invalid if it is not based on a free and well-considered declaration, or if it has been initiated by error, fraud, deception or on physical or mental pressure. In addition, it is considered invalid if its content is legally unacceptable, if the state of medical science has changed with regard to something mentioned in the living will since it was written and if it has been revoked or the patient suggests that it is no longer valid.
According to the law proposal, a relevant advance directive can also be made orally by a hospitalised patient. For non-hospitalised patients who have not personally written or signed their advance directive, it must contain the signature of a doctor who certifies that s/he has provided the person with the relevant information relating to the decisions made by the patient.
The informing and attending doctor must include the living will in the patient’s clinical records. If the living will is drawn up outside the hospital setting, the doctor must include it in the medical history (§ 14).
What an advance directive can cover
The federal act on living wills does not explicitly state what can be included in the living will but it does state that it can contain additional comments such as the designation of a specific confidant, the refusal of contact with a specific person or the obligation to inform a specific person (§ 11).
The living will cannot be used to refuse treatment that has been imposed on a person by specific legal provisions (§ 13).
Obligation to comply with instructions contained in an advance directive
The living will is considered binding if it was drafted in writing, if the date was indicated in the presence of a lawyer, a notary, or a legally trained associate of the patient advocacies, and if the patient was informed about the consequences of the living will as well as about the possibility to revoke it at any time. The person witnessing the dating of the document must also personally sign the document (§ 6).
If the living will does not fulfill the above-mentioned conditions, it is considered as non-binding but must still be taken into account when trying to establish a patient’s will. The closer the living will is to fulfilling the conditions, the more it will be taken into account when trying to establish the patient’s will (§§ 8 and 9).
If emergency treatment is needed and taking time to search for a living will would seriously endanger the life or health of the patient, doctors can take the necessary measures (section 12).
Amending, renewing and cancelling advance directives
A living will is valid for 5 years from the date it was signed unless a shorter period of time was specified. It can be renewed for a further five-year period as long as the formal requirements previously mentioned have again been fulfilled. Every amendment is treated in the same way as a renewal and the expiry date is reset for the entire living will. It does not lose its binding character once the patient is unable to renew it due to incapacity to understand, judge or express him/herself (§ 7).
A DPoA can be revoked at any time even, even after the person who made it has lost capacity, insight or judgement.
Access to information/diagnosis
The right to be informed
§ 5 of the Federal Hospital Establishment Law of 1957 (KAKuG) focuses on patients' rights. It is stated that patients must be informed of their rights and that they are entitled to an explanation and information on possible forms of treatment, as well as on the risks involved. Furthermore, the patient can request that s/he (or alternatively someone in a position of trust) be given medical information by a doctor who is authorised to exercise his/her profession independently. This information should be given in a clear and considerate manner.
The doctor's obligation to inform the patient is linked to the obligation to obtain consent in that the patient cannot give informed consent unless s/he has been adequately informed. As a result of jurisprudence, several guidelines have been developed. The information must be provided in a way that the patient can understand and that will not endanger his/her wellbeing. It should be appropriate in respect of his/her mental capabilities, state of mind, level of education, knowledge and intelligence. Furthermore, the amount and detail of the information given should correspond to the scale of the treatment or intervention in that minor treatment or operations do not require as much detail as more serious ones (Leenen et al., 1993).
Access to medical files
§5 of the Federal Hospital Establishment Law of 1957 (KAKuG) states that patients must be informed of their rights and that one of these rights is to examine their case history. This right to see records kept by the doctor or hospital stems from a decision taken by the Supreme Court on 25 May 1984 (1 Ob 550/84) (Leenen et al., 1993). Access to a medical file can, however, be refused on therapeutic grounds, if the person is interned in a psychiatric ward and access could constitute a severe risk to the patient’s health.
The right to designate another person to be informed on one’s behalf
Whilst he/she still has capacity, a patient can request that someone in a position of trust be given medical information by a doctor on his/her behalf.
The doctor’s right to withhold information
According to § 36 of the Internment Law, as an exception to the rule to give all information to the patient, the doctor can withhold information that will cause severe risk to patients’ health, for example a non substantiated tentative diagnosis. As a result of jurisprudence and legal doctrine information can be withheld in similar cases concerning patients outside psychiatric hospitals or wards.
The patient’s right to refuse information
With regard to withholding information on the grounds that the patient does not want it, a Supreme Court Ruling of 19 December 1984 (3 Ob 562/84)18 declared that such a decision could only be made on the basis of a conversation with the patient and if necessary with his/her close relatives
Confidentiality/disclosure of information to other people
The Data Protection Law (2000 and subsequent amendments) states that every person has the right to respect concerning his/her private and family life, residence and mail.
It is more specifically dealt with in § 121 of the Penal Code which protects patients against unlawful disclosure by health professionals of information, particularly that relating to their state of health. The state of health of a person is understood to include conditions relating to the physical or mental condition of a person, including past illnesses and suffering. The disclosure of such information to other people, even those bound by secrecy laws, constitutes damage to the patient.
Secrecy is further covered by § 9 of the KAKuG and § 54 of the 169th Federal Physician's Law of 1998. The latter states that,
"the doctor and his/her assistants are bound to secrecy in respect of all secrets that are confined to them or become known to them in the exercise of their profession".
It then goes on to mention exceptions to this rule, e.g. in the case of suspected abuse, in order to protect the higher interests of public health care or the administration of justice and with regard to the payment of medical fees. Paragraph 9 of the KAKuG applies to everyone employed in a hospital or clinic and refers to the kind of information protected. It states:
“Persons employed in hospitals/clinics and members of commissions under § 8 are subject to the obligation of secrecy, where they are not already obliged to such secrecy by other legal provisions or provisions relating to their conditions of service. The obligation of secrecy shall extend to all circumstances relating to the illness, and personal, financial and other circumstances of the persons in care which have become know to the employees of the institution in the course of their professional duties.”
End-of-life care and issues
Active/direct euthanasia involving the administration of treatment which results in the ending of a person's life is illegal, even if it is carried out in order to hasten a painful death. Nevertheless, doctors are not obliged to prolong a dying person's life at all costs. Therefore, passive euthanasia, which involves the withholding of life-preserving measures (e.g. resuscitation, blood transfusions and artificial feeding etc.), is not illegal if the illness is irreversible or involves damage which will inevitably lead to death. Indirect euthanasia which usually involves the administration of treatment intended to relieve intense pain and can result in the shortening of a person's life, is not illegal.
Paragraph 78 deals with the issue of assisted suicide. It stated that whoever leads another to commit suicide or assists the person is doing so, will receive a prison sentence of six months to five years.
Non assistance to a person in danger
According to §95 of the Penal Code, whoever, does not help a person whose life is in danger or who risks serious bodily injury or damage to his/her health, will receive a prison sentence of up to 6 months or a fine. In case such failure to provide assistance results in the death of the endangered person, the prison sentence will be of up to 1 year or a fine (unless such assistance could not have been reasonably expected).
According to §75 of the Penal Code, whoever kills another person will receive a prison sentence of between 10 and 20 years or a life sentence.
Murder at the request of the victim
Paragraph 77 of the Penal Code states that anyone, who kills another on that person's serious and insistent request, will be condemned to a prison sentence of between six months and five years.
Leenen H, Gevers S and Pinet G (1993), The Rights of Patients in Europe, Kluwer Law and Taxation Publishers, Deventer/Boston
NÖ Landesverein für Sachwalterschaft und Bewohnervertretung (2007), Agent’s authority granted to next of kin
NÖ Landesverein für Sachwalterschaft und Bewohnervertretung (2007), Durable power of attorney for legal representation
Patientenvertretung der Tiroler Landeskrankenanstalten Ges.m.b.H (1997), Die Ärztliche Aufklärungspflicht
 NÖ Landesverein für Sachwalterschaft und Bewohnervertretung, Durable power of attorney for legal representation, 2007
 155th Federal Law of 1 March 1990 on the Internment of Mentally Ill Patients in Psychiatric Hospitals/Clinics
Last Updated: Wednesday 27 April 2011