2016: Decision making and legal capacity in dementia
Consent to medical treatment
There is different praxis for people with dementia (PWD) who need medical treatment in Croatia depending according to different situations:
1) in-patient treatment at psychiatric wards, and
2) treatment at general hospitals (e.g. neurology, cardiology, surgery).
Consent to medical treatment in dementia and involuntary hospitalization at psychiatric ward of people with dementia is regulated by “Law on protection of persons with mental disorders”, published in the official gazette (“Narodne Novine”) NN 76/14, and officially started from 01.01.2015. Every patienta prioradmission to the psychiatric hospital should sign and date written informed consent. If the person is admitted to psychiatric institution without consent the court should be informed without delay, the latest in period of 48 hours. After that information the court has max 72 hours to visit the person and make a decision about the involuntary admission. Usually the independent expert (psychiatrists from other institutions) should be asked to give the opinion about prolongation of forced stay and treatment. Court can decide to grant the admission in term of involuntary hospitalization up to 30 days. After this period, if needed, the procedure can be started again, at least 8 days before the ending of involuntary admission ends. Article 27 from Law on “Protection of persons with mental disorders” defines that “Person with severe mental disturbances which according to this disturbance severely and directly are putting their or others life in danger, seriously threaten the health or security, will be admitted to the psychiatric institution according to procedure of involuntary hospitalization.”
It is important to point out there is no any difference for people with dementia and other psychiatric patients (e.g. schizophrenic) in above described procedure during admission to psychiatric ward without informal consent. More over the psychogeriatric wards in Croatia are located in large psychiatric hospitals (e.g. University Psychiatric Hospital Vrapče). The same procedure is undergoing the PWD who are not under guardianship and are lacking capacity to sign the inform consent. The PWD under guardianship who could not understand and sign written informed consent may be admitted to the psychiatric hospital after the guardian is informed about necessity of hospitalization and guardian has to sign the written informed consent. About the PWD who is admitted in psychiatric hospital after the guardian signs the informed consent, the notification should be send from psychiatric ward to the office of the ombudsman for the disabled persons.
If PWD is admitted to general hospital (e.g neurological department) he/she will not need to sign inform consent and will not undergo art. 27 of the “Law on protection of persons with mental disturbances”. In certain situations, (e.g. in case when operation is needed) the guardian has to sign agreement. If the persons don’t have guardian and isn’t able to understand medical procedure and sign inform consent, the process of naming the guardianship for special occasion may be initiated by social service.
However, there is exception, in life threatening situations when doctor may act promptly in the best interest of any patient and provide the treatment which is necessary according the “Law of health protection of people in Croatia “.
The right to refuse treatment
A competent patient has the right in decision-making process about diagnostic and therapeutic procedures that includes the patient's right to information and the right to accept or reject diagnostic or therapeutic procedure according to the “Act on the Status and Rights of Patients” published in the official gazette (“Narodne Novine”) NN 169/04, 37/08 (section 6.). If a patient refuses a particular treatment, the doctor must propose another medically acceptable alternative to which they are in agreement. Healthcare proxies also have the right to refuse treatment on behalf of an incompetent patient due to his state of health and according to section 7. of the Act on the Status and Rights of Patients. However, the right to information has the patient with impaired ability to reason, in accordance with the age and physical, mental and psychological condition according to section 13.
Section 17 of the same Law regulates the informed consent or rejection of a particular diagnostic or therapeutic procedure for a patient who is unconscious, the patient with severe mental difficulties, and under guardianship, with exception in the case of urgent medical of interference. The informed consent in that situation shall be signed by the legal representative or guardian.
Consent to research
Every biomedical research protocol (including inform consent to research) should pass in Croatia:
1. Committee for protection of persons with mental disturbances - based in Ministry of Justice, and
2. Central national ethic committee - based in Ministry of Health.
According to Family law, published in the official gazette (“Narodne Novine”) NN 103/15, started from 01.11.2015. article 258, paragraph 8 “the decision to participate in biomedical research” every person/patient, including PWD, participating in a biomedical research (that’s include clinical trials) should sign and date the inform consent. Inform consent should be written in lay language and be understandable to common people. The person participated in biomedical research may withdraw consent at any time during trail.
In the case of people with dementia, guardians are not allowed to sign consent to research instead them. So, now in our country, the investigation community has a great problem for including PWD in biomedical trials at all, especially PWD in moderate to advanced stages of dementia.
Advance Directives / Living Wills
“Law on protection of persons with mental disorders”, NN 76/14, officially started from 01.01.2015. predicted the institution of Person of confidence (“Osoba od povjerenja”) in its’ Section IX. Person of confidence is authorized (by notary) for giving or not giving consent for particular medical procedures instead of person who gave him written advance directives. It is new in Croatia – not yet seen in practice. This person can do a lot of things instead of PWD but due to previously mentioned laws cannot sign for participation of PWD in clinical trial although this may be written in advance directives/living wills.
Every person after 18 years of age has legal capacity in Croatia. In the case of severe mental disturbances, the process of legal capacity assessment can be initiated in the Centre for social care. The Center for social care shall appoint a special guardian with his/her duties and powers during that process for the person under assessment.
The process of assessment of legal capacity is led by a referee according on data from: 1) social and medical anamnesis, and 2) independent medical expert written expertise. Appropriate the legal guardian will be than appointed by court: 1) regarding specific areas and topics, or 2) in general.
In the case of full guardianships, the main scope are welfare and administration in the best interest of person under guardianship. Often that includes legal and financial affairs supervised by the Centre of Social Care. Guardians should ensure that the person receives treatment, care and rehabilitation as appropriate. The person under guardianship retains the rights to vote.
The decision on partial deprivation of legal capacity, the court shall determine specific actions that person is not able to autonomously take, for example: dispose of property, salary or other cash income, manage the property, decide on employment, make statements or undertake actions relating to marriage, parental care and other personal status. Actions and topics that are not determined in the court decision on partial deprivation of legal capacity, persons partially deprived of legal capacity can autonomously take.
Capacity In Specific Domains
Testamentary capacity deals with an individual’s capacity of drawing up a will and bequeathing his/her belongings to another person. In Craoatia the PWD under full guarddianship explicitly has limited the testamentary capacity and are no longer competent to draw up a will. A will draw up under these circumstances is automatically deemed invalid. Also, the guardians are not authorised to make a will on behalf of the person.
Last Updated: Thursday 09 February 2017