2016: Decision making and legal capacity in dementia
Consent to treatment
In Malta, there is no legislation that deals with the consent to treatment issue comprehensively. The Constitution has no express reference to the duty of obtaining informed consent, but the notion can be found in the general context of this fundamental law.
Malta is expected to sign and ratify the Council of Europe Convention on Human Rights and Biomedicine in the near future, following which the relevant articles relating to informed consent and research will apply to Malta.
The Data Protection Act that makes provisions for the protection of the individuals against the violation of their privacy by processing of personal data and for matters connected defines “consent” as “any freely given specific and informed indication of the wishes of the data subject by which he signifies his agreement to personal data relating to him being processed.”
The “Patients’ Charter of Rights and Responsibilities” issued by the Hospital Management Committee refers to informed consent to be given by a patient in hospital.
It states that hospitalized patients have the right to receive clear information concerning their medical condition, to make their own informed decision for treatment, to be well informed and completely free to accept, decline or withdraw any diagnostic or treatment procedure.
The “Patients’ Charter” issued by the Malta College of Family Doctors refers to the right of a patient to give or withhold their consent to medical or other care and treatment.
Consent to treatment in the case of incapacity
The “Patients’ Charter of Rights and Responsibilities” states that under certain circumstances (e.g. children, people with mental disability or dementia) parents or an appointed representative should be fully informed in order to take decisions on behalf of the patient.
If the person is declared by a Court sentence as incapacitated the tutor appointed is the person in charge of giving consent on his/her behalf.
The Mental Health Act (Act XVIII of 1976 and subsequent amendments) rules the compulsory admission for observation or for treatment of a patient in pursuance of an application for that purpose. This application must be made in the interest of the person’s own health or safety or with a view to the protection of other persons. The application shall be founded on the written recommendation of two medical practitioners.
The right to refuse treatment
The “Patient Charter” issued by the Malta College of Family Doctors refers to the right of a patient to “give or withhold your consent to medical or other care and treatment”. It also advises patients that they can choose whether or not they wish to take part in research or student training.
The right to withdraw consent
The “Patients’ Charter of Rights and Responsibilities” issued by the Hospital Management Committee states that hospitalized patients have the right to withdraw consent to any diagnostic or treatment procedure.
Consent to research
Malta is expected to sign and ratify the Council of Europe Convention on Human Rights and Biomedicine in the near future, following which the relevant articles relating to research will apply to Malta.
The Bioethics Consultative Committee issued Guidelines Relating to Consent of patients to medical intervention. These Guidelines request specifically that consent of patients to research is necessary and that research should not normally be carried out on those unable to express their consent.
The Data Protection Act (Act XXVI of 2001 and subsequent amendments) provides for the processing of data concerning research and statistics. Article 16 states that (1) Sensitive personal data may be processed for research and statistics purposes, provided that the processing is necessary as stipulated in article 9(e). (2) If the processing referred to in sub article (1) has been approved: (a) in the case of statistics, by the Commissioner himself; (b) in the case of research, by the Commissioner on the advice of a research ethics committee of an institution recognized by the Commissioner for the purposes of this paragraph; the provisions of sub article (1) shall be deemed to be satisfied. (3) Personal data may be provided to be used for the purposes referred to in sub-article (1), unless otherwise provided by applicable rules on secrecy and confidentiality.
The Data Protection Commissioner has asked the University of Malta to see that all research in Malta is undertaken in accordance with the data protection laws.
The “Patient Charter” issued by the Malta College of Family Doctors advises patients that they can choose whether or not they wish to take part in research or student training.
Consent to clinical trials
Following EU Accession, Malta has to adopt EU Directives as part of its own legislation. Three such directives concern the conduct of clinical trials in European countries – 2001/20/EC, 2003/94/EC and 2005/28/EC. These directives, and the respective guidelines explaining their implementation, have considerably changed the way clinical trials are conducted. While the participation of Malta in clinical trials is to be encouraged for various reasons, these have to be regulated according to the legislation set out by the European Union. In themselves, what these Directives strive to achieve are mainly the safety of the study subject and the protection of the investigators from serious consequences.
The legislation concerning clinical trials consists of Directive 2001/20/EC1 (transposed as Clinical Trials Regulations, 20042), Directive 2003/94/EC3 (transposed as Good Manufacturing Practice in Respect of Medicinal and Investigational Medicinal Products for Human Use Regulations, 20044) and Directive 2005/28/EC5 which come into force at the end of January 2006.
Article 6(3) of Directive 2001/20/EC1 and Regulation 7(2) of the Clinical Trials Regulations, 20042 list the points which the Health Ethics Committee should consider when assessing an initial clinical trial submission. The Ethics Committee shall consider among other elements: (g) the adequacy and completeness of the written information to be given and the procedure to be followed for the purpose of obtaining informed consent and the justification for the research on persons incapable of giving informed consent.
There is, as yet, no legislation governing advance directives and healthcare proxies in Malta but discussions are underway (Scerri, 2008; Mallia, 2009).
Proxy decision making
(for further information https://activeageing.gov.mt/guardianship/Pages/About-Guardianship.aspx)
According to the ACT No. XXIV of 2012 - Guardianship Law - a major who has a mental disorder or other condition which renders him incapable of taking care of his own affairs may be subject to guardianship. The purpose of Guardianship is to provide support to the person in managing their own affairs and to advocate for their rights and best interests.
A Guardian is a person who is appointed by the Guardianship Board to manage the affairs of another person who is not capable of managing their affairs due to disability or mental disorder. The Guardian may be given the authority to manage personal and/or financial matters. There may be more than one Guardian representing a person.
Guardianship Orders are characterized by a respect for and consideration of the aspirations of the person subject to guardianship and promotion of the well-being of the person. The law delineates that the parameters of guardianship orders should be in line with the aims that are intended to be achieved and freedom of choice and action of the person subject to guardianship should only be restricted when necessary and only to an extent that is proportionate to the aim pursued.
The types of decisions that are to be taken on behalf of the adult will determine the powers that are needed, such as:
- Personal Welfare - powers in relation to making welfare decisions for the adult.
- Financial - powers in relation to the finances belonging to the adult.
- Property Management – powers in relation to the administration of immovable property belonging to the adult
Powers, if required can be applied for separately but generally they are made together within the same application to the Guardianship Board.
Who can be a Guardian?
A legally appointed Guardian must:
- be at least 18 years of age
- be resident in Malta
- consent to act as Guardian to the person about whom the application is being made
- be prepared to act in the person's best interests at all times and encourage the person's independence, personal decision-making and participation in community life
- not be in a position where their own interests conflict with the best interests of the represented person
A Guardian can be a family member or close friend.
A person applies for Guardianship by filling in an application form and a medical report that can be obtained from the office of the Registrar of the Guardianship Board or via the links below. According to law (Article 189(3) of the Civil Code and Article 521 of the Code of Organization and Civil Procedure), the request for Guardianship can be made by:
- any person with a disability or mental disorder who wishes to have a Guardian appointed
- spouses of persons with disability or mental disorder
- relatives of persons with disability or mental disorder
- the Attorney General, unless the demand is made by any other person
Decisions taken by the Guardianship Board can be appealed through the Court of Voluntary Jurisdiction. An appeal should be filed not later than twenty days from the date of the decision of the Board.
How long does a Guardianship order last?
All Guardianship orders are periodically reviewed by the Guardianship Board and the review date is stipulated in the order itself.
A review may be conducted sooner if someone with an interest in the represented person applies to the Guardianship Board for a review of the order, or if the Guardian:
- applies to be discharged from the agreed responsibilities
- is no longer able to fulfil the agreed responsibilities
- is found guilty of neglect or misconduct which in the Guardianship Board’s view, makes them no longer appropriate to act as Guardian
The powers of a Guardian cease upon the death of the person they represent.
Functions and obligations of the Guardian
Guardians assist people in making personal, lifestyle, financial and health-related decisions and may act on behalf of the person in order to safeguard their interests. Guardianship orders specify the areas in which the Guardian can make decisions. The ‘guardian’ is obliged to act in the best interests of the person subject to guardianship and be responsible to safeguard the personal and proprietary wellbeing of the person to whose guardianship he/she is appointed. Guardians can act instead of the person in matters of personal or proprietary nature and do any other thing for or on behalf of the person to whose guardianship they are appointed. In addition, the Guardian is expected to;
- Provide the support required to the person subject to guardianship in exercising legal capacity in so far as this is possible
- Consult with the person subject to guardianship and take into account and respect the rights, will and preferences of the person in so far as this is possible
- Encourage the person to participate as far as possible in the life of the community
- Encourage and assist the person subject to guardianship to become capable of caring for oneself and one’s property and make responsible judgments in matters related to one’s person and property
- Protect from neglect, abuse or exploitation
- Provide assistive means as required for the fulfilment of the above
Interdiction and Incapacitation Orders
In Malta, interdiction and incapacitation orders can be converted to Guardianship orders. This can be done by submitting a request to the court of Voluntary Jurisdiction. The Court may consult with the Guardianship board as necessary or refer the matter to the Board for its determination.
If there are insufficient grounds for the conversion to be made, the court of Voluntary Jurisdiction is notified and the interdiction or incapacitation remains in force. If there are sufficient grounds for the conversion to be made, a guardianship order is issued and the court of Voluntary Jurisdiction is notified. The court of Voluntary Jurisdiction revokes the interdiction or incapacitation.
Powers of attorney (see http://www.lawyersmalta.eu/power-of-attorney-in-malta)
In Malta, the power of attorney or “prokura” in Maltese is a legal document through which a person called a grantor, a principal or a donor enables another person, named an agent or attorney-in-fact, to carry out different types of actions on his or her behalf. The grantor must be of legal age and in full mental capacity when signing the power of attorney.
The Maltese Civil Law divides this document into general and special power of attorney. The Maltese general power of attorney enables the agent to act in the name of the grantor for any type of action, while the special power of attorney enables the agent to conduct one or more actions of certain type on behalf of the donor. The Maltese special power of attorney must stipulate the exact form of the action to be conducted by the agent and, in some cases, it can also have an expiration date.
A special type of power of attorney is the durable power of attorney often used in Malta. The difference between the normal or usual power of attorney and the special one is that the durable power of attorney will expand beyond the disability of the donor. There are two types of durable powers of attorney: the immediate one and the springing one. The immediate power of attorney will be enabled as soon as it is signed, while the springing power of attorney is enabled in case of specific circumstances, such as the incapacity of the grantor.
In Malta, the durable power of attorney is created in cases of healthcare problems or decisions that have to be made regarding property issues. Durable power of attorney in Malta has become commonly used because it gives the principal the possibility to have his/her business or personal matters easily covered after becoming incapacitated. Through the durable power of attorney, a donor can also grant general or limited power.
The power of attorney is concluded so that it expires at a certain date or the principal can notify all involved parties about the cancellation of the power of attorney. The cancellation must be submitted in writing.
Capacity In Specific Domains
Marriage and divorce
According to the Marriage Act of 1975, a person who is subject to tutorship may not validly contract a marriage without the consent of the tutor (article 3). If either of the partners contracting the marriage is incapable of contracting “by reason of infirmity of mind”, whether interdicted or not, the marriage will be considered void (article 4).
Either of the partners may take action to have the marriage annulled even if that person is not considered capable by law to sue or be sued. Such action, once initiated, may be continued by any of the heirs (article 19.2).
Divorce is not possible in Malta (Scerri, 2008). Annulment is different to divorce as it implies that the marriage was void from the beginning.
Article 54 of the Malta Constitution stipulates that a person cannot be qualified to be elected as a member of the House of Representatives if s/he is “interdicted or incapacitated for any mental infirmity .../… or is otherwise determined in Malta to be of unsound mind.” Similarly, a person who is interdicted or incapacitated for any mental infirmity by a court in Malta or is otherwise determined in Malta to be of unsound mind, is not qualified to register as a voter for the election of members of the House of Representatives (article 58).
Capacity to work
If a person employs someone for a job or service who is not competent or if s/he does not have sufficient grounds to consider that person competent, s/he shall be liable for any damage that that person causes to others through incompetence in carrying out the job or service (article 1037 of the Civil Code).
A person who is interdicted or incapacitated is not capable of contracting, and any contract entered into by a person who does not have the use of reason is considered null (articles 967 and 968 of the Civil Code). However, a person who is capable of contracting cannot claim nullity of a contract on the grounds that the other contracting party did not have such capacity (article 973).
Any person not subject to incapacity under the provisions of the Civil Code may dispose of or receive property by will (article 596 of the Civil Code). However, those who are interdicted on the grounds of insanity, and those who are not of sound mind at the time of the will, are considered incapable of making wills (article 597).
A will made by a person subject to incapacity is considered null, even if the incapacity ceased before that person’s death (article 599).
A person who is officially responsible for someone of unsound mind may be considered liable for any damage caused by the latter, if s/he fails to exercise due care and attention in order to prevent the act (article 1034 of the Civil Code). It is explained in article 1035 that people of unsound mind are not obliged to make good any damage caused to third parties unless they acted mischievously. Nevertheless, if injured parties cannot recover damages from those responsible for the person who caused the damage, the court may order damages to be paid either partly or in full from the property of the person of unsound mind (article 1036).
According to article 33 of the Criminal Law, a person is exempt from criminal responsibility if at the time of the act or omission of which s/he is accused, such person was in a state of insanity.
Insofar as interdiction is concerned (i.e. where a person has been deprived of any legal capacity), there is no doubt that s/he is exempt from criminal responsibility. However, in cases where a person has only been declared incapable, criminal responsibility is assessed on a case-by-case basis.
Other Relevant Information
The Parliamentary Secretariat for Health has issued a consultative document on Patients' Charter (based on eight principles) last April. For information please see:
Last Updated: Wednesday 08 February 2017