2016: Decision making and legal capacity in dementia
Consent to treatment
Consent to medical treatment is covered by article 32 (2) of the Italian Constitution, which states: “No-one may be forced to undergo any particular medical treatment, save under the provisions of the law. In no case shall the law violate the limits imposed by proper respect for the human person.”
Article 13 (1) of the Constitution states that personal liberty is inviolable. As a person’s moral liberty, the right to self-determination and physical liberty (the right to respect for bodily integrity) are all elements of personal liberty, this article can also be understood to cover the issue of consent. Article 32 of the Constitution further states that nobody may be forcefully submitted to medical treatment except as regulated by law and that such law may in no case violate the limits imposed by respect for the human being.
Consent is also covered by the Italian Code of Medical Ethics of 18.5.2014. Articles 35 to 39 deal specifically with informed consent. The doctor cannot undertake any diagnostic or therapeutic procedure without the informed consent of the patient. The doctor’s actions must be guided by the will of the patient which should be freely and explicitly expressed. This should be supplemented by written consent. Diagnostic or therapeutic procedures which could be seriously hazardous to the safety of the patient, can only be undertaken in the case of extreme necessity. The doctor must explain the possible consequences of the proposed procedures and obtain documented and informed consent.
Article 37 provides for the situation where a person may be unable to consent due to infirmity of the mind. In this case, the person’s legal representative can consent on his/ her behalf.
The right to refuse treatment
If a patient who is capable of comprehension and intention explicitly refuses treatment, the doctor cannot go ahead with any diagnostic or curative action.
Consent to clinical trials and research
The consent of the patient is obligatory for pharmaceutical experimentation according to the Legislative Decree of 24.6.2003, n. 211, for the implementation of the Direction 2001/20/CE concerning the carrying on of the suitable clinic treatments for clinical experimentation of new medicinal preparations. The patient must also have received the necessary information in order to make a decision, and he/she can withdraw consent at any moment.
A person who is unable to give his/her consent can only participate in research under special conditions including, amongst others:
• That his/her legal representative has given his/her consent after getting the necessary
information; the consent must represent the alleged will of the person cared for and it can be withdrawn at any moment, without any prejudice for the incapable person;
• That the incapable person has received all the relevant information necessary to
understand either the kind of experimentation which is going to be carried on or the subsequent risks and benefits;
• That the experimentation is essential to validate results already obtained in clinical
experimentation on people who are able to give their informed consent or to validate the results of different research methods on the condition that the experimentation is strictly related to a life threatening clinical situation or of a disabling clinical condition that the person who is unable to consent is affected by.
Pharmaceutical experimentation is also covered by articles 48 and 49 of the Italian Code of Medical Ethics.
There is not yet a law about advance directives in Italy. Whilst waiting for a clear and appropriate law, it is nevertheless possible in Italy to have recourse to a rule which allows for the wishes of an incapable person to be respected.
Art. 408 of the civil code as renewed by law n. 6/2004 grants the possibility to incapable people to appoint, directly and prior to their illness, the guardian they would like in the future. This involves planning and preparing for possible future incapacity. The appointing deed must be made by a legal notary or written in private and then authenticated. The guardian’s duties can be specified in the deed either with regard to the handling of the person’s properties or to matters concerning decisions related to certain treatments or therapies.
The anticipated appointment of one’s guardian can therefore establish choices linked to healthcare (beginning from his/her consent to hospitalization to decisions about the continuation of treatment, medical research and all the other related matters).
Previously expressed wishes are also covered in article 38 of the Italian Code of Medical Ethics which states that the doctor must respect the freely expressed wishes of the patient and act in respect of the patient’s dignity, freedom and autonomy. This, it is stated, includes respecting the previously expressed wishes of the patient who is no longer able to express him/herself, provided that these wishes were clearly expressed and documented.
Issues surrounding the loss of legal capacity
Law n. 6/2004 introduced into the Italian judicial civil system the rules known as “amministrazione di sostegno”. This is very similar to the German guardianship law (known as the Betreuungsgesetz) and means that the guardianship court appoints a person who is deemed capable of suitably looking after the person and his/her interests. The term describes the procedure which involves the provision of gradual protective intervention and responds to the specific needs and abilities of the beneficiary.
At present, the only law applicable to guardianship is this new one, even though it doesn’t repeal the previous rules of judicial disability (loss of fundamental basic rights which are acquired with adulthood) and judicial disqualification (incompetence to carry out business). This law involved a notable change of the whole section of the Italian civil code traditionally dealing with “infermità di mente” (insanity), “interdizione” (judicial disability) and “inabilitazione” (judicial disqualification). At this stage, the title of this section is “provisions for the protection of people who are partly or wholly unable to look after their own affairs”. This new law applies to people who are unable to look after their affairs due to major illness or permanent disability. The goal of the new rules is to balance the opposing needs for independence and protection, granting people as much freedom as possible and, at the same time, ensuring that they are provided with necessary protection that is proportionate to their needs and fair.
Proxy decision making
Conditions for the appointment of a guardian
“Amministrazione di sostegno” assists people suffering from insanity or any other physical or mental disease who, for these reasons, are unable to look after their own affairs. Consequently, it is not necessary to assess whether a person has full possession of his/ her faculties. On the contrary, this new rule provides a wide range of possibilities. Indeed, it also includes the case of temporary or partial disablement linked to illness or disablement, as well situations in which it is impossible to look after one’s own affairs. As a result, the new law applies to all kinds of mental illness, to a wide variety of mental disorders, including mild dementia.
No fees or expenses are incurred by this procedure and no lawyer is needed.
The procedure can be undertaken even by the person who wishes to be the beneficiary of the guardianship measure (obviously provided that s/he is able to do this by him/herself), or by the spouse, or relatives up to 4th degree or relatives of the spouse to the 2nd degree, or the Public Prosecutor. At the same time, health and welfare services which are aware of a situation for which appointment of a guardian is necessary are under the obligation to request the appointment of a guardian. The proceedings are started by the handing over of a petition to the competent guardianship judge to obtain the appointment of a guardian. The competent office depends on the place of residence or normal habitation of the beneficiary.
How guardianship is arranged
A decree issued by the guardianship court appoints the guardian following a hearing during which the person in need of assistance to take care of his/her own affairs must be heard. If s/he can’t attend the hearing, it is necessary to go to his/her place of residence.
The decree established by the judge must be the most flexible approach to guardianship, according to the particular needs of the beneficiary, both with regard to his/her welfare and personality.
A report must be submitted to the Judge – normally every year – in which the guardian describes the duties that s/he has carried out on behalf of the beneficiary supported by documents proving the beneficiary’s wellbeing, requirements (showing profit and expenditure) and state of health.
Who can be a guardian
The spouse, relatives or people who live with the beneficiary (even if not his/her relative) and other people who are deemed capable of looking after the person who needs assistance is/are appointed as guardian. However, the operator of public services or private care who are in charge of the beneficiary cannot be appointed guardian.
The duties and responsibilities of the guardian
The basic duties of the guardian are:
• to get acquainted with, evaluate and notify the Guardianship Court about the circumstances and needs in the life of the beneficiary;
• to represent and look after the beneficiary with the sole purpose of handling his/her affairs in accordance with the powers which were conferred on him expressly by the Guardianship Court.
The beneficiary of “amministrazione di sostegno” (the term used to refer to the person in need of assistance to look after his/her own affairs) remains legally competent and has the power to manage all acts for which the Guardianship Court did not grant power to the guardian. In any case, s/he can manage by himself/herself whatever is necessary for his/her everyday needs (e.g. the purchase of clothes and food).
All tasks covered by guardianship and those that can be jointly accomplished with the beneficiary or on his/her behalf must be stated in the appointing decree. These tasks are recorded in the register of civil status. Among other things, the decree must state the amount of the money that the guardian is allowed to spend in the interest of the beneficiary. This sum can even have periodical limits.
Measures to protect the ward from misuse of power
The guardian must regularly report to the Judge of the Guardianship Court about the “personal and social life skills “of the beneficiary. At any stage of the procedure, for any kinds of decision which must be taken at any time by the Judge and the guardian, they must bear in mind the needs and wishes of the beneficiary, as much as possible and in accordance with the specific needs of each single case.
Compensation and liability of guardians
Guardians are not paid for the services they provide. However, the Guardianship Court may, considering the extent of the heritage to be protected and any difficulties linked to its administration, give a fair compensation to guardians.
Acts carried out by the guardian or the beneficiary in violation of laws or powers given by the appointing decree may be cancelled at the request of the guardian, the prosecutor, the beneficiary or his/her heirs.
The Guardianship Court declares the termination of the guardianship measure if it turns out to be inappropriate with regard to the full protection of the beneficiary.
Duration of guardianship
If the guardian is the spouse or a relative or a person living with the beneficiary, the duration of guardianship has no limit. In other cases, it cannot be longer than ten years or for the time decided by the judge based on the reason for the appointment. It can also be renewed or cease at any time due to the guardian’s resignation or revocation.
The right to appeal
Decrees of the Guardianship Court may be contested within ten days of notification. The Prosecutor may also lodge a complaint.
Power of attorney
As long as a person is still capable of understanding and intention, s/he can grant another person or people the right of legal representation. The legal representative would then have the authority to carry out certain acts on his/her behalf, e.g. issuing and receiving payments. A power of attorney can be either general or special (limited to specific matters). Acts of extraordinary administration are only possible if they are specifically detailed in the content of the power of attorney. Certain powers are non-delegable, such as the power to make a will on someone else’s behalf.
The power of attorney can be revoked at any time by the person who made it or renounced by the chosen representative(s). It remains valid even after the person becomes incapable of understanding and intention, but in this case, only for a short time as it would be necessary to start the procedure to obtain the declaration of judicial disability or disqualification or “amministrazione di sostegno”.
Capacity In Specific Domains
Marriage and divorce
According to article 85 of the Civil Code, a person who has been made subject to judicial disability on the grounds of infirmity of the mind cannot get married. If the process of judicial disability has been started, the Public Prosecutor can demand that the marriage be postponed until a judgement has been made. This is further backed up by article 119 of the Civil Code, which states that any marriage by a person who has been made subject to judicial disability on the ground of infirmity of the mind may be contested by the guardian, the Public Prosecutor or any person with a legitimate interest. This can also occur if the judgement on judicial disability was made after the marriage but it was clear at the time of the marriage that the infirmity existed, unless the person has cohabited for one year.
If the person has not been made subject to judicial disability but it becomes clear at the time the marriage was contracted, s/he was incapable (even temporarily) of comprehension or intention, the marriage can be contested. This would not be possible if the person recovered his/her mental faculties and there had been cohabitation for one year.
A person who is made subject to judicial disability has what is known as “absolute incapacity “and therefore cannot vote.
According to article 425 of the Civil Code, a disqualified person can run a commercial business provided that s/he has the authorisation of the court and at the discretion of the guardianship judge.
Article 427 states that deals or agreements made by a person subject to judicial disability or disqualification can be annulled at the request of the guardian, the person him/herself or his/her heirs and assignees. All acts performed by a person subject to judicial disability are invalid and there is no obligation to prove that the act entailed any prejudice or that the other party acted in bad faith. In fact, bad faith is actually presumed on the part of the other person contracting the agreement. This is due to the fact that the register in which judicial disability is recorded is freely accessible to the public and it is considered any person contracting a deal has acted in bad faith if they did not take the trouble to consult the register.
Deals or agreements made by a person who is not officially subject to judicial disability but who was suffering (even temporarily) from incapacity at the time of the action may be annulled at the request of the person concerned or his/her heirs or assignees. This is covered by article 428 of the Civil Code. For acts not involving the disposal of assets, it is sufficient to demonstrate incapacity, whereas for acts involving the disposal of assets, annulment is only possible if the act entails serious prejudice to the incapable person. If not, the act remains entirely valid.
The situation in the case of contracts drawn up by people who lack the capacity for understanding and intention, but who are not subject to judicial disability or disqualification or “amministrazione di sostegno” is somewhat complicated in that it is necessary to prove that:
- The individual was incapable at the time of concluding the contract.
- S/he therefore suffered as prejudice and The other contracting party acted in bad faith.
There is a legal presumption of the good faith of the contracting parties, which means that the person seeking the annulment of the contract must prove that the other party acted in bad faith. As this is not always easy to prove, there is a considerable risk of losing a case even for prejudicial acts carried out by the incapable individual.
A person who has been made subject to judicial disability on grounds of infirmity of mind loses the right to make a will according to article 591 of the Civil Code. A person is also deemed to be incapable of making a will according to this article if s/he is proven to have been afflicted by incapacity for comprehension and intention at the time of making it. This is applicable even if the person is not officially subject to judicial disability.
If a will is made under either of the above circumstances, it can be contested by any interested party for up to five years from the date of execution of the testamentary dispositions.
Article 2047 of the Civil Code states that in the event of any damage caused by a person lacking the capacity for comprehension or intention, the person responsible for his/her supervision must pay compensation to the injured party. This person is legally responsible for the payment of any damages due as a result of the action.
However, it is possible to be exonerated from liability if the person can prove that it was impossible to prevent the damage, despite having performed the duty of supervision with all due care and attention.
If the injured party is unable to obtain damages from the person responsible for supervision, the judge may, on consideration of the financial situation of the parties involved, order the person who caused the damage (i.e. the incapable adult) to pay a fair sum as compensation.
In order for a person to be held responsible for a crime or offence, s/he must have been imputable at the time it was committed. This means that the person must have had the capacity for comprehension and intention. The former is understood by judges and experts in criminal law to mean an individual’s ability to recognise the significance of his/ her own actions, whereas the latter is understood to mean the individual’s capacity to make independent decisions.
According to article 85 of the Penal Code, a person is therefore deemed not to be imputable if, at the time of committing the deed, s/he was, by reason of infirmity, in a state excluding the capacity for comprehension and intention. In criminal proceedings it is the responsibility of the judge to determine whether this was the case at the time the crime was committed. It is not necessary for the person to have been previously declared subject to judicial disqualification or disqualification.
Should the person’s capacity be greatly reduced but not actually exclude the capacity for comprehension and intention (as could also be the case at certain stages of dementia) s/ he would be answerable for any offence committed but the penalties would be greatly reduced (covered by article 89 of the Penal Code).
Last Updated: Wednesday 08 February 2017