2016: Decision making and legal capacity in dementia
Consent to medical treatment
According to the Human Rights Ombudsman of the Republic of Slovenia, a doctor may only carry out a medical intervention on the basis of the patient’s free consent following an explanation. However, there are exceptions where consent is not required. For example, article 51 (3) (Right to Healthcare) of the Constitution states: “No one may be compelled to undergo medical treatment except in cases provided by law.”
In August 2008 the Law on Mental Health was passed. This law permits referral and acceptance for treatment in a psychiatric hospital on the following conditions: with the consent of the patient (article 36-38), without the consent of the patient subject to a decision by a court of law (article 40-52) and without the consent of the patient in urgent cases (article 53-67).
Articles 19 to 25 of the Act on Patients’ Rights of 2008 address the issue of informed consent (hence covering both prior information and subsequent consent). It is forbidden to administer any treatment or healthcare to a person with disposing capacity unless he/she has given free and wilful consent after having received appropriate information. In some cases, (depending on the type of proposed treatment) written consent may be required.
Consent is also covered by article 47 of the Law on Medical Practice which states that the patient or his/her guardian must consent to every medical practice (Trontelj and Korošec, 2003). The law on Medical Practice about necessary drug treatment was updated in 2014.
Consent for people unable to express their will
If a person lacks the capacity to consent the doctor can provide non-essential medical treatment provided that he/she does not or could not know that the patient or his/her authorised representative is opposed to the treatment. This would also be the case if the doctor considered treatment to be in the best interests of the patient but was unable to obtain consent within a reasonable amount of time (article 29 of the Act on Patients’ Rights) (Žnidaršic Skubic, 2008).
Article 37 of the Act on Patients’ Rights covers consent in the case of incapacity. If the patient’s inability to consent is linked to his/her mental health condition, a legal representative must consent on his/her behalf. If the patient does not have a legal representative, steps must be taken to have one appointed. Meanwhile, the right to consent or refuse treatment on his/her behalf is granted to the following people (provided that they are of legal age and have full disposing capacity) in the following order: 1. spouse or partner (in case of civil union), 2. children or adopted children, 3. parents or foster parents, 4. brothers or sisters, 5. grandparents, 6. grandchildren. These people cannot refuse emergency treatment. If they refuse consent, the doctor can decide on the patient’s behalf, based on all opinions received and based on his/her assessment of the patient’s best interests (Žnidaršic Skubic, 2008).
Patients may appoint a person to consent or refuse treatment on their behalf in the event that they are one day unable to do so themselves (art. 32-34 of the Act on Patients’ Rights). This advance appointment must be made in writing whilst the person has full disposing capacity. Similarly, the patient can exclude in advance someone who would normally have the right to consent or refuse consent on his/her behalf. Such information is recorded on the patient’s health card or in his/her medical file (Žnidaršic Skubic, 2008)
The right to refuse treatment or withdraw consent
According to article 31 of the Act on Patients’ Rights, patients with full disposing capacity can refuse treatment or withdraw consent at any time. However, the doctor must try to persuade the patient to accept treatment if he/she considers that the decision is not in the patient’s best interests and could threaten the life of the patient or of other people. The doctor may even consult the patient’s family or recommend that the patient seeks a second opinion (Žnidaršic Skubic, 2008).
Consent to participation in scientific research and clinical trials
According to the EFGCP (2008), the regulations applying to clinical trials on investigational medicinal products are:
- Drug Act (Official gazette, No. 31/06) and Bylaw on Clinical Trials (Official gazette, No. 54/06), which is the Slovenian Directive on Clinical Drug Testing based on Directive 2001/20/EC.
- The Code of Medical Deontology of Slovenia.
- The Oviedo Convention.
Articles 47-50 of the Slovenian Code of Medical Deontology also contain provisions on the ethical conduct of biomedical research on human subjects (Trontelj and Korošec, 2003).
The legal status of advance directives in Slovenia
As explained in the next subsection, it is possible the patient to appoint (in advance of incapacity) a person to consent to or refuse treatment on one’s behalf and also to state which person or people should not have such a right.
Article 34 of the Act on Patients’ Rights permits a person with full disposing capacity to state in writing his/her will regarding the rejection of treatment should he/she ever be incapable of expressing his/her will on this issue (i.e. an advance directive).
Conditions surrounding the writing, validity and registering of an advance directive
There is a special form for recording future wishes regarding the acceptance or refusal of treatment. In this form, it must be stated that the person making the advance directive has full disposing capacity and is of legal age. It must be signed by the person making the advance directive and contain details of his/her doctor and authorised health representative. An advance directive is valid for five years from the date of signature. Details of the patient’s wishes are added to his/her medical card or main medical file.
Obligation to comply with instructions contained in an advance directive
Depending on the person’s situation/condition at the time that the treatment is proposed, these wishes will be considered either binding or merely advisory.
A patient’s previously expressed wishes would be considered binding if: “he/she should suffer from grave illness, which given the ability of modern medicine would lead to death in a short period of time in spite of medical treatment or medical care, or for which treatment or care would not lead to an improvement in health or the alleviation of his/her suffering but rather only to the prolonging of his/her life.”
A patient’s previously expressed wishes would be considered by the doctor and guide him/her in deciding on a course of action if: the patient’s life “would be prolonged by medical treatment or care, but he/she would end up being in a state where, due to the graveness of his/her disability, he/ she would lose physical and mental ability to take care of himself/herself.” (Žnidaršic Skubic, 2008)
Previously expressed wishes might not be considered if there are reasonable grounds to believe that the patient would have retracted his/her wishes.
Amending, renewing and cancelling advance directives
An advance directive can be withdrawn by the patient at any time. The withdrawal must be in writing. It is not clear whether the patient has to have full disposing capacity to do this.
Issues surrounding the loss of legal capacity
Guardianship is covered by article 178-223 of the Civil and Family Code (IGN, 2007).
Proxy decision making
How guardianship is arranged
The wishes and interests of the ward are the most important factors in the guardianship procedure.
Who can be appointed guardian:
A guardian cannot be:
- A person who cannot have parental responsibility.
- A person who does not have contractual capability.
- A person whose interests are opposed to those of the ward.
- A person who cannot be expected to act in the best interests of the ward.
The duties and responsibilities of guardians
Guardians have to report to the Centre of Social Care on an annual basis.
Compensation and liability of guardians
Guardians are not paid by the State for the services they provide. However, they may be entitled to receive some expenses from the ward’s estate.Capacity In Specific Domains
Capacity In Specific Domains
Article 43 of the Constitution states that the right to vote is universal and equal and that every citizen who has attained 18 years of age is eligible to vote and to stand for election.
Article 7 of the National Assembly Elections Act of 1992 further states: “Every citizen of the Republic of Slovenia who has reached the age of 18 by the Election Day and has not been declared legally incompetent shall have the right to vote and to be elected as a deputy.”
According to article 16 of the Penal Code, a person shall not be held responsible for his/ her actions if at the time the offence was committed, s/he was not capable of understanding the meaning of his/her act or of controlling his/her own actions due to any permanent or temporary mental disease, mental disorder or any other permanent and severe type of mental disturbance such as insanity. A reduced sentence may be given if the perpetrator’s ability to understand the meaning of his/her actions or to control them was greatly diminished due to any of the above-mentioned states of mind. This would be classed as diminished responsibility.
The above provisions would not apply if the state of insanity was self-induced, e.g. through alcohol or drugs.
Last Updated: Thursday 09 February 2017