2016: Decision making and legal capacity in dementia
Consent to medical treatment
Chapter 4 of the Patients’ Rights Act of 1999 addresses the issue of consent to healthcare. Section 4.3 contains a few relevant provisions:
- To have the right to consent to healthcare, a person must be at least 18 years of age and have legal capacity.
- Competence to give consent may cease to apply wholly or partly if the patient, on account of a physical or mental disorder, dementia or mental retardation, is clearly incapable of understanding what the consent entails. The healthcare provider shall decide whether the patient lacks competence to give consent. Based on the patient’s age, mental state, maturity and experience, health personnel shall do their best to enable the patient himself or herself to consent to healthcare.
A decision concerning lack of competence to give consent shall state the reasons for the decision and shall be given in writing, and if possible shall immediately be presented to the patient and his or her next of kin. If the patient has no next of kin, the decision shall be presented to health personnel.
If a person has legal capacity but is nevertheless not competent to give consent, the healthcare provider can decide on his/her behalf for healthcare that is not of a highly invasive nature. In other cases, the person’s next of kin may consent on his/her behalf (section 4-6). If he or she does not have any next of kin, a healthcare provider may consent on his/her behalf after consultation with other qualified healthcare professionals (section 4-8).
People who have been declared legally incapacitated pursuant to the Act relating to the declaring of a person as incapable of managing his own affairs of 28 November 1898 may consent to healthcare themselves to the greatest possible extent. If they are unable to do so, their guardian may give consent on their behalf (section 4-7).
The right to refuse treatment
In January 2009, the Act amending the Patients’ Rights Act was implemented. It resulted in the implementation of a new section in the Patients’ Rights Act entitled “healthcare for patients without competence to give consent to healthcare etc.” The purpose of this new section is described in the Act as being to provide necessary healthcare in order to prevent significant harm to health and to prevent and limit the use of force.
The new section deals with the provision of healthcare to patients who lack the capacity to consent and are refusing to accept healthcare. It also covers involuntary admission to or detention in a health institution and the use of restraining measures if considered necessary.
Under § 4a of the Patients’ Rights Act, a person can be given compulsory healthcare if the following conditions are met:
- the patient is 16 years or older
- the patient is considered as a person without consent
- the patient is refusing to accept healthcare
On the basis of the Act and an examination conducted by an authorised doctor, or another authorised person responsible for care, the application is issued and forwarded to the Norwegian Board of Health Supervision, of which there is an office in each county.
Moreover, it is clearly stipulated that when appraising the need for care it should be considered whether the patient constitutes a danger to him/herself should the compulsory measures not be provided. Compulsory measures must be deemed necessary and be proportionate to the need for healthcare. Moreover, acceptable voluntary solutions must have been tried prior to any compulsory measures being implemented.
Decisions for compulsory healthcare can be made for a period of up to one year at a time. A description of the care and treatment needed must be appended to the application. If the decision concerning the compulsory measures is for more than three months, the decision is automatically sent to the Norwegian Board of Health Supervision for evaluation.
The patient or the family carer has the right to appeal. The deadline for the appeal is three weeks after the decision has been made. The appeal is directed to the Health Supervision, although it is sent to the local health authorities for an immediate second evaluation of the decision.
The refusal of life-saving treatment
A dying patient is entitled to refuse life-prolonging treatment. If a dying patient is incapable of communicating his/her wishes regarding treatment, the healthcare personnel may withdraw healthcare provided that the patient’s next of kin also consent and that the healthcare personnel, based on an independent evaluation, find that this also corresponds with the patient’s wishes. Healthcare personnel must ensure that the patient was given adequate information and understood the consequences of the refusal of treatment for his/her own health. The patient must also have legal capacity (§ 4-9).
The right to withdraw consent
Consent can be withdrawn at any time (European Commission, 2006).
Consent to research and clinical trials
In the Act of Health Research, which has not been yet implemented, consent to research and clinical trials is specifically mentioned. Prior to this Act no legislation dealt specifically with consent either to research or to clinical trials.
The Act of Health Research specifies that consent must be voluntary, informed and documented. The regulations of consent are to be issued by the Department of Health. However if the people in the research and trials are incapable of consent, the approval and responsibility for consent is governed by the provisions of the Act of Patients’ Right part 4-3.
Advance directives are not legally binding in Norway but people do nevertheless write them. In fact, there is an organisation called “Right to a worthy death” which offers help, advice and assistance in filling in advance directive forms. Independent witnesses are required. An advance directive may be withdrawn or amended at any time by a person with capacity. However, a guideline for decisions regarding prolonging treatment for seriously ill and dying persons is being made and will be issued in 2009.
Meanwhile, § 4-9 of the Act on the Rights of Patients states that a dying patient is entitled to object to life-supporting treatment. Healthcare professionals must however ensure that the patient mentioned is of legal age, and that the patients are given adequate information and have understood the consequences of the refusal of treatment. If the patient is incapable of communicating his/her wishes, the healthcare personnel may withdraw healthcare provided that the patient’s next of kin so requests and that the healthcare personnel, on the basis of an independent evaluation, finds that this also corresponds to the patient’s wishes. Presumably such wishes may be recorded in an advance directive.
Proxy decision making
The conditions for appointing a guardian
Section 90 of the Act of 22 April 1927 relating to guardianship for persons who are legally incapable (the Guardianship Act) deals with the appointment of a provisional guardian. According to section 90a: “A person of full age and legal capacity who because of unsoundness of mind or other mental disorders, senile dementia, retarded mental development, or physical disability cannot manage his or her own affairs may if necessary have a provisional guardian appointed.”
How guardianship is arranged
Before a provisional guardian can be appointed:
- an application must be made by a person or body authorised to do so;
- a satisfactory medical certificate must be produced to the effect that the person concerned “because of unsoundness of mind, other mental disorders, senile dementia, retarded mental development, or physical disability cannot manage his/her own affairs”;
- the consent of the person for whom a guardian is requested has been obtained unless it is impossible to obtain such consent or for special reasons it is inadvisable to do so.
The choice of guardian
The choice of guardian is usually the next of kin or another relative. The guardian’s office approves the choice when satisfied with the proposal. Every municipality runs a public guardian’s office. The office’s main task is to manage the ward’s resources, appoint a guardian and audit the guardians in that municipality. The role of the guardian’s office is not mentioned in the legislation or in any specific guidelines. It is managed according to rules and regulations of the municipality.
The duties and responsibilities of guardians
Provisional guardians may be granted authorisation to manage the person’s affairs in general or only in special cases. The sphere of authority is decided at the time of appointment and should not, in any case, be more comprehensive than is actually necessary. The Public Guardian’s Office may order the registration and valuation of the person’s estate as soon as possible. If the spouse is appointed provisional guardian, provisions relating to supervision, administration, registration and the duty to keep accounts are somewhat different.
How the financial affairs of the ward are handled?
The financial affairs are handled by the guardian, and the guardian is obliged to send details of the audited accounts every year to the Public Guardian’s Office.
Measures to protect the ward from misuse of power
It is the responsibility of the public trustee appointed by the municipality to supervise the work of trustee and custodians.
Payment of guardians
The guardian is not paid for his/her work.
Duration of guardianship
The guardianship measure lasts for as long as it is needed or until the death of the ward.
In March 2010, the Norwegian Parliament adopted a new Act of Guardianship. There is reason to believe that this new law will be applied from 1 January 2012 onwards.
One of the most important changes compared to the current Act is that the public guardian’s office will be moved from the municipality to the county.
Another adjustment in the new Act is the legislation on advance directives which offers an alternative to an appointed guardian. The advance directive can cover areas such as general care, financial decisions and statements about personal preferences. The Act also opens up the possibility for a person to designate his/her own legal guardian for when s/ he is no longer able to take care of his or her economic interests.
Powers of attorney
Powers of attorney are rarely used in Norway. They are not considered as legally binding and are not mentioned in legislation.
Capacity In Specific Domains
According to the Marriage Act of 1991, a person who has been declared to be without legal capacity must obtain the consent of his/her guardian to contract a marriage. The same applies to people for whom a provisional guardian has been appointed according to section 90a et seq. of the Guardianship Act (if it is part of the duties of the provisional guardian to give such consent). If consent is refused by the guardian or provisional guardian, the person with incapacity can appeal to the County Governor, who may authorise the marriage if there is no justifiable reason for such refusal (§2). Proof must be provided that consent has been obtained from the guardian, provisional guardian or County Governor (§7).
Marriages are contracted in the presence of a “solemniser” who is usually a clergyman, priest or public notary. If the solemniser31 has reason to believe that, owing to a severe mental illness or severe mental disability, either of the parties lacks legal capacity, he or she can demand a certificate from a public medical officer or from another medical practitioner designated by a public medical officer. In this context, “legal capacity” means the ability to have a normal understanding of what contracting a marriage entails and the ability to be normally motivated to contract a marriage (§9).
Annulment, separation and divorce
If a marriage has been solemnised despite the fact that one or both parties lacked legal capacity, proceedings to have the marriage declared null and void may be brought within six months after the solemnisation of the marriage. Guardians and provisional guardians can also instigate proceedings on behalf of a spouse who lack legal capacity, provided that this is part of their duties (§16).
Proceedings for separation or the dissolution of a marriage can be instigated by or against a spouse personally even if he or she lacks legal capacity. The guardian may then assist the person with incapacity. Guardians and provisional guardians (provided that the latter are responsible for such decisions) also have the right to instigate proceedings for the dissolution of a marriage or separation on behalf of a person with incapacity if they consider that this is in the best interests of the person lacking capacity. In such cases, the matter is dealt with by the courts which first decide whether there are grounds for legal action (§28).
According to article 50 of the Constitution of the Kingdom of Norway, “rules may be laid down by law concerning the right to vote of persons, otherwise entitled to vote, who on Election Day are manifestly suffering from a seriously weakened mental state or a reduced level of consciousness”.
The Norwegian Election Act of 1985 contains a paragraph on the procedure to follow should the returning committee have reason to assume that a person is suffering from a serious mental disorder or is in a reduced state of consciousness. In such cases, the voter’s unopened ballot envelope is put to one side and his/her name, address and birth date written on it, along with the reason for excluding the vote and whether the decision to do so was unanimous. The envelope is then given to the election committee which decides whether or not the vote should be rejected (§41).
The Act of Disclosure of Contracts, Authorities and Invalid Declarations of 1918 states that a contract is invalid if it was signed by someone who was suffering from a mental disorder at the time.
However, if the person with incapacity is under guardianship, it is the guardian’s duty to make sure that the contract is still binding. The guardian must also ensure that the contract is in the ward’s best interests.
The following extracts from the Inheritance Act of 3 March 1972 refer to people who lack legal capacity:
§48 A person who has attained the age of 18 may by testament dispose of the property s/he leaves upon his/her death. A testament drawn up by a person under 18 years of age is invalid unless confirmed by the King. The same applies to any testament drawn up by a person who has been declared legally incapable. The request for confirmation should be presented as soon as possible after the testament has been drawn up.
§56: A testator may by inheritance contract commit himself/herself to abstain from making, altering or revoking a testament. (…/…) Any inheritance contract drawn up by a person who is legally incapable requires, in addition, the consent of the board of guardianship insofar as the inheritance contract pertains to assets which the legally incapable person cannot dispose of him/herself.
§62: A testamentary disposition is invalid if the testator was insane or mentally undeveloped or feeble-minded at the time he drew up the testament, unless there is no reason to believe that his mental state has had any effect on the contents of the provision.
With regard to criminal liability, section 44 of the General Penal Code states: “A person who was psychotic or unconscious at the time of committing the act shall not be liable to a penalty. The same applies to a person who at the time of committing the act was mentally retarded to a high degree.”
Last Updated: Wednesday 08 February 2017