2016: Decision making and legal capacity in dementia
Consent to medical treatment
In Chapter VI of the Medical Treatment Law of 1997, the emphasis is on the doctor’s obligation to obtain the patient’s consent. According to section 41, a doctor must obtain the consent of the patient for medical treatment.
Article 70 states that a written request by the guardian or his or her approval must be obtained for mental treatment for people who are deemed not to be of active capacity (except in the case of compulsory treatment).
Consent in case of emergency treatment
Section 49 of the Medical Treatment Law deals with cases where a delay might endanger the life of the patient and it is impossible to obtain the consent of family members, closest relatives or lawful representatives. In such cases, medical professionals have a duty to take emergency measures within the scope of their competence. If there is enough time, they should get the examination and treatment plan approved and let a doctor’s council taken the necessary decision.
The right to refuse treatment
Section 23 of the Medical Treatment Law of 1997 concentrates on the patient’s right to refuse treatment. It states:
A patient has the right to refuse, in full or in part, examination or medical treatment offered by certifying such refusal with his or her signature. If a patient is a minor or a person who due to his or her state of health is unable to understand the consequences of his or her actions, family members, but if such do not exist, the closest relatives or lawful representatives of the patient (trustees, guardians) have such rights and liability for the decisions taken. The doctor has a duty to explain to the patient, his or her family members, closest relatives or lawful representatives (trustees, guardians) the consequences of such refusal. If the person has accepted a treatment plan, he or she is responsible for observing all instructions of the medical practitioner related to the medical treatment and care.
Consent to participation in research
Informed consent is required for participation in research activities (European Commission, 2006).
Latvia has very little experience with such directives. From a legal perspective, these directives can be written by the person and certified by a lawyer or notary. Most people are not familiar with the possibility of drawing up these directives. The most relevant challenges include: people are not aware of this possibility and do not leave any instructions; guidance does not take into account the relatives (or guardians); lack of legal support.
Issues surrounding the loss of legal capacity
According to article 357 of the Civil Law, “persons who are mentally deficient but, nonetheless, do not lack the intellectual capacity for management of ordinary matters, may administer their own property and deal with it freely.”
Article 358 further states that trusteeship shall be established for people who are mentally ill and have been recognised as lacking the capacity to act and to legally represent themselves. Mental illness or mental deficiency only has legal consequences when a person has been found by a court to be lacking the capacity to act due to that illness or deficiency (article 359).
Proxy decision making
Guardian can be a person who has filed the appropriate documents to the court and expressed a desire to be the guardian. The court decides if the appointment is necessary. Most often the guardian is a relative of the person. In cases where this is not possible, a social worker can become a guardian. The guardian agrees to take care of the person, to help with everyday needs, assumes the responsibilities of a person in the cases established by the court.
With a certain periodicity representatives of social services verify the fulfilment of these responsibilities and needs, the conditions of the persons etc. Guardianships are reviewed every 7 years. After 7 years of compulsory court reviews the appointment of a guardian and the need to deprive a person of the rights to be free in their decisions in the future. Guardian may be replaced, as well as tightened or relaxed volumes in which guardian may act in solving the needs of the ward. The right of appeal may be met in accordance with the legal system of Latvia.
Measures to protect the ward from misuse of power are available, but often a person is not able to take advantage of them due to lack of understanding of the situation (loss of cognitive processes). A person with enough stored cognitive level may appeal the decision of the court on the appointment of a guardian, as well as the need to challenge the award of the trustee's ability to manage the finances and health of the ward. Guardian is solely responsible for the ward; does not receive compensation (in case it is relative), or receives his basic salary at the place of work (if the trustee is a social worker). Involves some compensation and additional costs such as travel expenses or time spent on trips to doctors and others, but these are minimal compensation.
Powers of attorney / Lasting Powers of Attorney
A person may issue a power of attorney to another person's name if it is not deprived of legal capacity. Power of attorney can be full or partial (relating to a number specific or type of activities), for a limited time or timeless. If the trusted person exceeded his authority or take advantage of the power of attorney, it can be terminated by the court, especially if it is proved that the person could not fully or partially aware of the consequences of issuing a power of attorney. Such cases are treated in forensic psychiatric examination.
Capacity In Specific Domains
Marriage and divorce
Article 33 of the Civil Code states that people who have been found by a court to lack capacity to act due to mental illness or mental deficiency are prohibited from marrying. The marriage may be annulled if at the time of the marriage one of the spouses was declared as lacking capacity to act due to mental illness or mental deficiency, or was unable to understand the meaning of his or her actions or to control them (article 61).
The Electoral Register Law of 22 January 2004 (which came into force on 5 February 2004) covers the establishment of a voter registration system in the territory of the Republic of Latvia and the registration of people who have the right to vote in the Saeima (the Parliament of the Republic of Latvia), the European Parliament, city council, county council and parish council elections. To be eligible to vote, a person must have reached 18 years of age, be registered in the Population Register and have the capacity to act. According to section 15 of this law, it must be noted in the Population Register if a voter has been recognised as not having the capacity to act.
According to articles 420 and 421 of the Civil Law, any person who has the capacity to act may make a will. A person with a mental illness is considered incapable of making a will (depending on the type of disease, in case of conflict - solved through forensic psychiatric examination).
Chapter 3 (Obligations and Claims arising from Wrongful Acts) of the Civil Law deals with “delicts25”. According to article 1637, “persons with the capacity to act shall not be liable for delicts, if they committed the delict while unconscious or in a state of mental incompetence.”
Chapter II of the Criminal Law addresses the issue of responsibility for criminal offences. The following sections are relevant to crimes committed by people with incapacity:
Section 8: Forms of Guilt
(1) Only a person who has committed a criminal offence deliberately (intentionally) or through negligence may be found guilty of it.
(2) In determining the form of guilt of a person who has committed a criminal offence, the mental state of the person in relation to the objective elements of the criminal offence must be established.
Section 13: Mental Incapacity
(1) A person who, during the time of the commission of the offence, was in a state of mental incapacity, that is, due to a mental disorder or mental disability was not able to understand his or her acts or control them, may not be held criminally liable.
(2) For a person who has been found to have a lack of mental capacity, the court shall order compulsory measures of a medical nature as set out in this Law.
Section 14: Diminished Mental Capacity
(1) If a person, at the time of the commission of a criminal offence, due to mental disorder or mental disability, was not able to understand his or her acts fully or control them, that is, was in a state of diminished mental capacity, the court may reduce the sentence to be adjudged or release such person from punishment, according to the actual circumstances of the offence.
(2) For a person who has been found to have diminished mental capacity, the court shall order compulsory measures of a medical nature as set out in this Law.
Sections 68 to 70 deal with the compulsory measures of a medical nature mentioned above. For people who are not considered dangerous to the public, a court may decide to place them with their relatives or other people who will then care for them under the supervision of a medical institution linked to their place of residence (section 68).
Section 69, on the other hand, states that people with mental incapacity who have committed a crime and who are considered dangerous to the public due to their mental state may be obliged to have treatment in a psychiatric hospital, and that this should be determined by a court. Section 70 deals with people who have committed a crime whilst in a state of diminished responsibility. In such cases, the person may be obliged to undergo treatment at an institution in their place of residence or elsewhere depending on whether they are also sentenced to deprivation of liberty.
Last Updated: Wednesday 08 February 2017