2016: Decision making and legal capacity in dementia
Consent to medical treatment
The provisions of article 35 of Ministerial Decree n° 2012-312 of 29 May 2012 approving the Code of Medical Ethics provide that “the consent of the person being examined or treated must be sought in all cases. Where the patient is unable to express their wishes, the physician may not intervene without the person’s loved ones being alerted and informed, except in cases of emergency or impossibility”.
Furthermore, article 4 of the aforementioned article of the foregoing Ministerial Decree stipulates that “the physician’s obligations with regards the patient, when the latter is a minor or a protected adult, are set out in article 41”.
The provisions of article 41 of Ministerial Decree n° 2012-312 of 29 May 2012 approving the Code of Medical Ethics provide that “a physician called to treat a minor or an adult under guardianship, should endeavour to inform the person’s parents or legal representative and to obtain their consent.
In case of emergency, if the latter cannot be contacted in good time, the physician shall be exempted from obtaining their consent. If the interested party’s opinion can be obtained, the physician must bear this in mind to the greatest possible extent”.
As regards a person’s consent to medical treatment, the Hospital Patient’s Charter at the Princess Grace Hospital in Monaco specifies in article 4 that, “a medical act cannot be practiced without the patient’s free and informed consent”.
The right to refuse treatment
Paragraph 2 of article 35 of Ministerial Decree n° 2012-312 of 29 May 2012 approving the Code of Medical Ethics provides that when a patient, capable of expressing their wishes, refuses the examinations and treatments being offered, the physician must respect this refusal after having informed the patient of the consequences.
As regards the right to refuse medical treatment, the Hospital Patient’s Charter at the Princess Grace Hospital in Monaco specifies in article 7 that, “hospital patients may leave the establishment at any given time, subject to the exceptions provided by law, and after having been informed of any incurred risks”.
Consent to research/ clinical trials
As regards consent to research and clinical trials: law n° 1.265 of 23/12/2002 on the protection of human subjects in biomedical research stipulates in article 9 that,
Prior to carrying out biomedical research on a human subject, their free, informed and express consent must be obtained after the investigator or a physician representing him/her has informed the person of the following:
- the aim, methodology and duration of the research;
- the expected benefits, drawbacks and foreseeable risks, including in the case of the research being halted prior to its planned end date;
- the opinion of the Ethics Advisory Committee in terms of biomedical research stated in article 25;
- where appropriate, the inscription in the national register provided for in article 17.
He/she shall inform the person, whose consent is requested, of his/her right to refuse to participate in the research or to retract consent at any time without incurring any liability whatsoever.
Exceptionally, when in the best interests of the patient, the diagnosis of the disease could not be made known to him/her, the investigator may, while respecting the patient’s trust, hold back some information associated with the diagnosis. In this case, the research protocol must state this eventuality.
The submitted information shall be summarised in a written document and given to the person whose consent is requested.
Consent shall be provided in writing, or where this is not possible, certified by a third party. The latter must be totally independent from the investigator and sponsor.
At the end of the research period, the person who has taken part shall be informed of the overall outcome of the research.
However, in the case of biomedical research conducted in emergency situations, which prevent prior consent being obtained from the person who will be the subject of the research, the protocol submitted for the opinion of the Advisory Committee on ethics in biomedical research, referred to in article 25, may provide that this person’s consent is not obtained and that only that of his/her family members is obtained if the latter are present, under the conditions laid down here above. The interested party shall be informed as soon as possible and his/her consent shall be requested for any continuation of the research.
Furthermore, article 10 of this law stipulates that, “When biomedical research is conducted on child subjects, or on adults protected by law:
- consent must be given, according to the rules laid down in article 9, by the legal guardian for dependant minors. For children or adults protected by law, consent is given by the legal representative for research with a direct individual benefit, which does not present a serious foreseeable risk and, in all other cases, by the legal representative authorised by the family council or the guardianship judge;
- The consent of children or adults protected by law must also be requested when the individual is capable of expressing his/her wishes. Further action may not be taken if the person refuses or withdraws his/her consent.
For the time being, advance directives do not exist in the Principality.
Issues surrounding the loss of legal capacity
According to article 410-4 of the Monegasque Civil Code (CC), “when an adult’s mental abilities are impaired by disease, a natural or accidental infirmity or by age, his/her interests shall be protected by one of the protection regimes under articles 410-9 to 410-35 hereinafter. The same provision shall apply when the impairment of the bodily faculties prevents the expression of will. The impairment of mental or bodily faculties shall be certified in writing by a physician, appointed by the guardianship judge upon simple request or under its own initiative”.
It is important to note that judicial protection does not exist in Monaco. Only case managers are possible, in compliance with article 410-18 of the Civil Code. – “The court may refrain from starting guardianship and entrust the management of an adult’s estate, either to a spouse or to an ascendant, a descendant or to a brother or sister capable of managing their possessions.
These management powers rest with the legal administrator, subject to the guardianship judge’s control”.
This is not in itself a legal protection scheme; only two such schemes exist: curatorship and tutorship.
Article 410-19 of the CC “When it does not appear necessary to organise tutorship, the court may appoint a single administrator”.
Article 410-29 of the CC “Adults who, for one of the reasons laid down in article 410-4°, only require assistance with acts in civil life, may be placed under the curatorship regime”.
Article 410-10 “When, for one of the reasons laid down in article 410-4°, an adult must be continuously represented for acts in civil life, tutorship shall be initiated by decision of the court of first instance, upon the adult’s request, that of their spouse, ascendants, descendants, brothers or sisters, the guardian, or the public prosecutor. The court may also act on its own initiative”.
Proxy decision making
A text is currently under discussion in Monaco but for the time being, the proxy decision making system does not exist in the Principality.
The conditions for starting guardianship
According to article 410-10 of the CC “When, for one of the reasons set out in article 410-4°, an adult must be continuously represented for acts in civil life, tutorship shall be initiated by decision of the court of first instance, upon the adult’s request, that of their spouse, ascendants, descendants, brothers or sisters, the guardian, or the public prosecutor. The court may also act on its own initiative”.
According to article 410-4 of the Civil Code “when an adult’s mental abilities are impaired by disease, a natural or accidental infirmity or by age, his/her interests shall be protected by one of the protection regimes under articles 410-9 to 410-35 hereinafter.
The same provision shall apply when the impairment of the bodily faculties prevents the expression of will.
The impairment of mental or bodily faculties shall be certified in writing by a physician, appointed by the guardianship judge upon simple request or under its own initiative”.
How guardianship is arranged
The articles 401-10 of the Civil Code stipulate that a request for guardianship may only be made by “the adult, their spouse, ascendants, descendants, brothers or sisters, the guardian, or the public prosecutor. The Court of First Instance may also act on its own initiative”.
The Court of First Instance has the jurisdiction to start the guardianship process, in compliance with article 410-10 of the Civil Code. The guardianship judge appoints the physician referred to in the last paragraph of article 410-4 of the Civil Code.
The Monegasque Gerontology Coordination Centre (CCGM) can provide a report for the competent judicial authorities.
The request is followed by:
- a medical assessment by a psychiatrist
- a further social investigation, which must also be carried out by the social services of the Monegasque public security service
The medical assessment takes place at the person’s home and the report is sent to the guardianship judge. The public security service social workers carry out a social investigation to assess various factors, such as the environment and the person’s financial situation. They also speak to the person’s friends and family members. A report is then sent to the court.
Thereafter, the person is summoned to court for the judgement. If the person is unable to attend court, the CCGM can organise assistance to help them. If not, guardianship judge will go directly to the person’s home. The judge will determine the level of protection:
- curatorship (the person is involved in all decisions)
- tutorship (the tutor makes all administrative decisions on their behalf, excluding health-related decisions).
All court decisions are final as soon as they are pronounced. Upon expiry of the time limit for exercising ordinary measures of appeal, the court’s decision becomes final and binding. It becomes irrevocable when the time limits for exercising extraordinary measures of appeal have expired.
Who can be a legal representative?
In Monaco, administrators’ associations do not exist. Only private individuals occupy this function.
According to article 410-14 of the CC, “the court appoints a tutor, who can be a legal entity”.
According to article 410-16 of the CC, “a General Practitioner cannot be a tutor. Tutorship cannot be referred to the treatment facility either, nor to a person in paid employment, unless this person’s sole role is to ask for tutorship to be initiated”.
The legal representative’s authority
According to article 401-19 of the Civil Code: “When it does not seem necessary to organise guardianship, the court may appoint an administrator.
The administrator shall receive the adult’s income and use it for the needs of the latter, as well as performing maintenance obligations to which said administrator is bound; any excess amount shall be deposited into an account opened with one of the approved depositaries referred to in article 378.
The court may confer other powers on the administrator which it shall determine. Where necessary, it shall stipulate the allowance to which the latter is entitled
Each year, the administrator shall report on its management to the guardianship judge”.
The provisions of article 410-21 of the Civil Code state that: “By derogation of the foregoing rules, the court may allow an adult under guardianship to accomplish alone or with their guardian or administrator, a specific list of acts”.
Measures to protect the ward from misuse of power
According to article 410-7 of the CC, “whatever protection regime is applicable, the person in charge of protecting the interests of the incapable adult may not make use of the latter’s residence, nor of the furniture within it. Subject to a decision by the guardianship judge, and application of articles 410-13° and 410-32°, this property may only be the subject of temporary enjoyment agreements, which, notwithstanding any legal prescriptions to the contrary, will come to an end upon the return of the interested party. Souvenirs and other personal items may not be sold without the guardianship judge’s authorisation. They shall be stored, where necessary, by the treatment facility and remain at the ward’s disposal”.
Compensation and liability of the legal representative
The protection area of judicial representatives is strictly administrative. In terms of financial management, they must provide a statement of accounts to the guardianship judge once a year.
The provisions of articles 398 to 402 of the Civil Code apply to an adult’s guardianship.
Article 398- “Within three months following the end of the guardianship period, the final account is provided, either to the ward who has attained emancipation or adulthood, or to his/her heirs. The guardian shall make an advance payment.
All justified expenditure proved of use shall be reimbursed to the guardian.
If the guardian is separated from service prior to the end of the guardianship period, a summary account of his/her management shall be provided to the new guardian; who may only accept this with authorisation from the family council, after the supervisory guardian has been heard”.
Article 399- “After attaining emancipation or adulthood, the ward may only approve the guardianship account one month after the guardian provides him/her with said account with a receipt and the supporting documents. Any approval shall be null and void if it is granted prior to the end of the time limit.
Any agreement made between the emancipated or adult ward and the guardian shall also be deemed null and void if its purpose is to release the latter, in full or in part, from his/her obligation to provide an account”.
Article 400- “The account approval shall not constitute a rejection of the responsibilities lying with the ward against the guardian, the supervisory guardian or members of the family council.
The state shall be responsible with regards the ward for any damage resulting from an infringement committed by the public administrator in charge of a vacant guardianship, by virtue of article 346”.
Article 401- “The balance remaining the responsibility of the guardian shall give right to interest as from approval of the accounts and at the latest, three months following the end of the guardianship period.
The balance remaining the responsibility of minors shall only be interest bearing for the summons to pay, post approval of accounts”.
Article 402- “Any action by the ward in relation to the guardianship and exercised against the guardian, the supervisory guardian, members of the family council or council of State, shall be barred after five years, as from the attainment of adulthood, even if emancipation is also attained”.
Duration of the guardianship measure
The legal protection measure shall last until the cause resulting in the start of the guardianship period ceases to exist.
The right to appeal
Following notification of the judgement, the interested party has 15 days to appeal the decision.
Powers of attorney / Lasting POA
Currently, there is no power of attorney in Monaco.
Proposed law n°209 in relation to limited judicial protection and the enduring power of attorney foresees the imposition of an enduring power of attorney.4 CAPACITY IN SPECIFIC DOMAINS
Capacity in specific domains
Adults under guardianship retain almost all their rights, but are limited from exercising some of these. The exercise of these rights shall be ensured by the legal representative.
Marriage and divorce
Adults under guardianship may marry in compliance with the provisions of article 124 of the Civil Code.
Article 124- “The marriage of an adult for whom one of the measures stipulated in articles 410-10, 410-18 and 410-19 was taken, must be authorised by the family council,especially constituted for this purpose, after interviewing the future spouses and obtaining the opinion of their general practitioner”.
They may also divorce, in compliance with article 200-12 of the Civil Code.
Article 200-12- (Created by law n° 1.336 of 12 July 2007)
“When one of the spouses isplaced under guardianship through application of article 410-10, a divorce can only be granted on the basis of article 197”.
The provisions of article 200-2 also state that: “After interviewing the requesting spouse and making the observations to him/her deemed appropriate, the president of the Court of First Instance orders, following the request, that the parties appear before him/her for the purpose of conciliation, on the day and at the time he/she indicates.
By the same order, the president of the Court of First Instance may, subject to summary judgement, authorise the requesting spouse to occupy a separate residence or to live alone at the marital home, where necessary, with his/her minor children.
Should it appear that the spouse who did not make the request is affected by a mental illness or is unable to express his/her wishes, the president of the Court of First Instance- in the absence of organised guardianship- shall appoint a guardian in charge of assisting the defendant spouse”.
According to law n°. 839 of 23/02/1968 on national and municipal elections, article 2: incapable adults are denied the right to vote.
According to article 410-27 of the CC, “adults under tutorship may only write a will when they are capable of expressing free and conscious desires and this must be officially notarised. The person may only withdraw or modify their will under the same condition and form. The notary shall ask testators if they are under tutorship and shall make a note of the answer in the deed”.
Subject to application of the following provisions:
Article 410-21 of the Civil Code – “Notwithstanding the rules defined here above, the court may allow an adult under guardianship to perform alone, or with help from his/her guardian, or administrator, a list of specific acts”.
Any individual, even incapable persons, may be subject to criminal liability under the conditions stipulated by articles 44 to 47 of the Penal Code (Chapter II Excusable individuals)
Article 44- “There is no indictable offence, if the perpetrator was suffering from a mental disorder or was compelled by a force which he/she was unable to withstand”
Article 45 “An indictable offence may only be excused and the sentence reduced in cases and circumstances in which the law declares that the offence can be excused or permits a lesser sentence to be imposed”.
Last Updated: Thursday 09 February 2017