2016: Decision making and legal capacity in dementia
Consent to medical treatment
Under the Physician’s Profession Act of 5 December 1996, in order to carry out examinations or provide other medical services, doctors must have first obtained the consent of the patient. If the patient does not have sufficient capacity to consent, it may be given by his/her legal representative. If s/he does not have one or the legal representative cannot be contacted, then the Guardianship Court must provide consent.
The issue of consent to medical operations is also addressed in the Penal Code. Article 192 states that whoever performs a medical operation without the consent of the patient shall be subjected to a fine or up to 2 years’ imprisonment.
According to Art. 34.1 of The Physician’s Profession Act 1996, the patient has the right to express his/her written consent to surgical operation or application of treatment methods.
The same right is granted in Articles 15 and 18 of the Act on Patients’ Rights and Patients’ Rights Spokesman of 6 November 2008.
The right to refuse consent
The patient has the right to express his/her consent to accept defined health services or to refuse them after having been granted appropriate information. The consent of the patient, and in the case of minor patients or persons incapable of expressing their wishes, the consent of the legal representative or the guardian-in-fact or guardianship court, is the basis for a physician to act. (The Ministry of Health Charter of Patient Rights, December 1998)
NB. Patients’ rights are regulated in many different legal acts. The most important one is the Act of 30 August 1991 on Healthcare Institutions, and the Act on Patients’ Rights and Patient’s Rights Spokesman of 6 November 2008. The general right to healthcare of every citizen is granted in article 68.1 of the Polish Constitution.
The right to withdraw consent
According to the Act on Patients’ Rights and Patients’ Rights Spokesman of 6 November 2008, a patient has the right to refuse or withdraw consent to treatment, even if their legal representatives or actual (e.g. family) carers express present opposite wishes. In such cases a permission to treat the patient must be obtained from the Family and Guardianship Court. The patient has the right to express consent to a medical experiment, after having obtained information on the aims, conditions, methods, benefits and risks, and also has the right to withdraw consent to such an experiment (Art. 24 and 25.1 of the Healthcare Institutions Act,1991).
Consent to research
According to Kiejna et al. (2008), the legal representative of a person entirely lacking capacity can consent to “healing research” on his/her behalf. If the person lacking capacity is nevertheless capable of voicing an opinion on the matter, his/her written consent should also be obtained. If the legal representative refuses to consent to such research, consent can be sought from the guardianship court.
For people with full legal capacity who are not able to give their opinion about proposed healing research, the guardianship court can consent on their behalf.
If it is not possible to delay the healing research on account of imminent danger to life, consent is not necessary.
Consent to clinical trials
Under Art. 37 b.2 p.2 and Art. 37 f of the Pharmaceutical Act of 6 September 2001, the patient has the right to express his/her consent to clinical trials and the right to withdraw such consent. The physician is obliged to give the patient detailed information on the procedure, methods and risks involved in participating in a clinical trial.
According to Ministry of Health Regulation of 2 May 2012 on Good Clinical Practice, participation in clinical trials is possible only after the patient has expressed consent.
There is no legal framework in Poland for the use of advance directives in healthcare and for end-of-life decision making (Kiejna et al., 2008).
Under Article 20 of the Act on Patients’ Rights of 6 November 2008:
1.The patient has the right to respect his/her privacy and dignity, especially while undergoing medical treatment.
2. The right to respect one’s dignity includes the right to die in peace and dignity. The patient who is in terminal state has right to medical treatment which aims at the relief and reduction of pain and suffering.
Issues surrounding the loss of legal capacity
There are no official procedures or guidelines for the assessment of legal competency. It is determined, if necessary, on the basis of an interview and psychiatric examination carried out by a doctor or specialist in psychiatry (Kiejna et al., 2008).
Proxy decision making
Conditions for the appointment of a guardian
A person, who due to mental illness, mental deficiency or any other mental disorder is not able to control their conduct, may be declared completely legally incapacitated (Article 13 of the Civil Code of 23 April 1964). Pursuant to Article 16 of the Civil Code a person whose condition does not justify the declaration of complete incapacitation, but who needs assistance to manage their affairs, may be declared partially legally incapacitated.
The consequences of the incapacitation are the following: the limitation or exclusion of the possibility to enter into civil-legal transactions independently (Article 14 of the Civil Code), to become a proxy (Article 109.2 of the Civil Code), to draft a will (Article 944 of the Civil Code) or enter into marriage (Article 11 §1 of the Family and Guardianship Code of 25 February 1964). In the scope of labour law, it is impossible for the legally incapacitated person to take up a job, and the autonomy of the partially incapacitated person is limited (Article 22 § 3 of The Labour Code of 26 June 1974). Such persons are denied performing some functions or professions, e.g. of a judge, a physician, a civil servant, a broker, an editor-in-chief of a newspaper or magazine.
The court appoints a guardian after a petition is filed by the person’s spouse, a close relative, or a prosecutor. According to Article 152 of the Family and Guardianship Code, everyone, who has been appointed a guardian of the incapacitated person, is obliged to carry out the obligation. For some important reasons the courts may release the appointed guardian from this obligation. Taking over the duty of the guardian starts as soon as the appointed person takes an oath (a sworn statement) before the court (Article 153). The guardian is obliged to perform his/her duties with due diligence, following the ward’s and community’s interest.
How guardianship is arranged
The same regulations of the Family and the Guardianship Code which refer to the guardianship procedure in the case of minors are applied to guardianship of an adult person who has become incapacitated. (Article 176). The guardian is appointed by the court on the basis of a family member’s (spouse, adult child, sibling, cousin) or a prosecutor’s application/petition in which the need and reasons for incapacitation are stated. A medical doctor’s certificate is enclosed to the petition. The Court may hear the opinion of a sworn expert (psychiatrist) on the mental condition of the person who is to be incapacitated.
Who can be a guardian
According to Article 176 of the Family and Guardianship Code, first of all, a spouse of the alleged incapacitated person should be considered as a guardian, or if it is not possible, the person’s father or mother, or another close relative, who has full capacity to legal transactions.
The duties and responsibilities of guardians
Under the Family and Guardianship Code (1964) Article 155 §1, the guardian/legal representative takes care of the incapacitated person and his/her property under the supervision of the Guardianship Court. According to Article 156 the guardian must obtain the Court permission for any important decisions which concern the ward. Before taking any decision which has vital consequences for the ward’s life, the guardian should listen to the ward if his/her health and mental condition allows that and take into account his/her rational wishes (Article 158).
The guardian’s main responsibilities include: care, administration (management) and representation. The guardian/legal representative looks after personal and property interests of the ward, ensuring financial means, securing health care and treatment, making sure that his/her life is safe and that the ward is not a threat to himself/herself. If the ward is to be placed at a care centre/institution, the guardian should inform the Court about such plans, seek the Court’s permission and follow the court’s advice and orders. The Court may punish the guardian with a fine for not following the Court orders. (Article 598 of the Code of Civil Procedure) The guardian is responsible for the administration of the ward’s property, which should be specified in an inventory and presented to the court in an annual written report on the state of the property and decisions made and present to the court the account resulting from administration of property, which will give evidence of financial transactions or expenditure (Article 595 of The Code of Civil Procedure). If the ward’s property is insignificant (inconsiderable) the court may exempt the guardian from the duty to provide such reports. It is the duty of the guardian to represent the ward in civil legal transactions, which need the Guardianship Court’s permission.
How the financial affairs of the ward are handled?
The appointed guardian is responsible for the property of the ward and should consult the Court on major financial decisions. (Article 160 §1 of the Family and Guardianship Code) The Court may oblige the guardian to put the ward’s valuables, securities and other documents at the Court deposit. Withdrawing money from the ward’s bank account is possible only with the Court permission. (Article 161). The Court supervises all important financial decisions by checking the guardian’s annual reports. Under Article 162 of the Family and Guardianship Code and Article 597 of the Code of Civil Procedure the Court may grant the guardian, on his/her request, appropriate gratification from the ward’s income or from public funds.
Measures to protect the ward from misuse of power
Article 17 of the MHPA of 1994 states that if it is ascertained that the legal representative of a person with a mental disorder is not adequately fulfilling his/her duties towards that person, the head of the psychiatric facility shall notify the Guardianship Court of that person’s place of residence. This presumably would also apply to people with mental disorders in nursing homes.
According to Article 595 of the Code of Civil Procedure the guardian is obliged to present reports to the Court on the ward’s conditions and wellbeing as well on administration of the ward’s property, at least once a year.
Compensation and liability of guardians
According to Article 1§1 of the Penal Code criminal liability applies only to a person who has committed a prohibited, punishable act.
Under Article 545 of the Code of Penal Procedure, whoever files a petition for incapacitation of a person, acting in bad faith or recklessly, is subject to pecuniary penalty (fine) of up to PLN 1,000.
Whoever persistently evades performing of an obligation, imposed on them by law (Family and Guardianship Act) or court order, of the duty to take care of the ward and thereby exposes the ward to the impossibility of satisfying basic needs, is subject to pecuniary penalty, restricted liberty or imprisonment of up to 2 years (Article 209, §2 of the Penal Code).
Duration of guardianship
The guardianship is established for an unspecified period of time. It is in force until the abatement of guardianship or change of the kind of incapacitation (partial or full). Pursuant to Article 559 of the Code of Civil Procedure of 17 November 1964 “the court shall revoke the declaration of legal incapacitation when reasons for such incapacitation cease to exist. Such revocation may also be issued ex officio (§ 1). In the event of an improvement of the mental condition of the legally incapacitated person, the court may change the scope of legal incapacitation from complete to partial, and in the event of deterioration of the person’s mental condition – change the legal incapacitation from partial to complete” (§ 2)”.
The right to appeal
The Code of Civil Procedure (Article 367 §1) grants the right to appeal against the lower court’s decision to the higher court within 2 weeks from the decision being made. Article 559 §3 and Article 560 of the Code enable the person who has been declared incapacitated the right to appeal to the court to revoke or change the decision.
Continuing/enduring powers of attorney
In the Polish Civil Code there are 3 kinds of powers of attorney by which legal representatives can be appointed and be authorized by a person to deal with his/her matters. Such agreements are signed at the notary office and should have a written form:
A General power of attorney for ordinary, current management of activities described in the agreement. A Special one, for special kinds of matters, eg. for selling the house, which are stated in the agreement. A Specific one, for one specific legal matter
The enduring power of attorney does not exist in the Polish legal system yet.
However, Jolanta Pacian in an article entitled “Pro- future Statements. Dilemmas” published in ‘Legal Journals ‘in 2014 (Zeszyty Prawnicze 14/4, 171-181) has written the following:
‘The experience of the European countries and the U.S. has shown that, although in practice the use of advance statements is giving rise to problems for healthcare professionals and patients alike, both legal and medical in nature, they are undoubtedly a manifestation of patients’ independence and a sign of respect for their wishes when life or health
is at stake. The regulations regarding the introduction of the living will into the Polish legal framework should take into account the patient’s choice only with regard to preferred methods of treatment in the event of his loss of consciousness and inability to inform the physician of his preferences of treatment.
Capacity In Specific Domains
Marriage and annulment
Issues relating to marriage are covered by the Family and Protective Code (Kiejna et al., 2008). Article 11, §1, for example, states that a person who is completely incapacitated cannot marry. This also applies to anyone who has a mental disorder or mental deficiency (Art. 12, §1). An exception may be made if the health and state of mind of the person with the mental disorder or deficiency does not threaten the marriage or the health of future offspring and provided that the person is not entirely incapacitated. Either spouse can ask for a marriage to be annulled on the grounds that one of them has a mental illness or mental deficiency but this cannot be done if the mental illness has since been overcome (§2).
According to the Constitution of the Republic of Poland of 2 April 1997, people who have been subjected by a court of law to legal incapacitation or deprived of electoral rights do not have the right to participate in a referendum or to vote (article 62, section 2).
Similarly, the Electoral Law of 12 April 2001 on Elections to the ‘Seym’ of the Republic of Poland, people who have been deprived of legal capacity are not entitled to vote (article 7, section 3). The same law allows for polling wards to be established in hospitals and welfare homes with at least fifty resident voters (or with fewer voters following consultation with the head of the hospital or welfare home) (article 30, section 1).
Competency to act in legal matters may be full, limited or lacking. It is not affected by mental disorder alone but must be determined on the basis of an assessment of whether the person has control over his/her actions (Kiejna et al., 2008). Therefore, in addition to diagnosis of a particular condition, this must be ascertained by means of a detailed assessment of a person’s ability to control his/her actions.
According to article 944 of the Civil Code, in order to write a valid will or revoke a will, a person must have full active capacity. If this was not the case, or the will was written under duress, it would be considered invalid (art. 945). (Kiejna et al. 2008).
Civil and criminal responsibility
A person, who at the time of committing an offence, was incapable of recognising its significance or controlling his/her conduct because of a mental disease, mental deficiency or other mental disturbance, shall not be considered to have committed an offence.
If the person’s ability to recognise the significance of his/her act or to control his/her actions was significantly diminished, the court may apply a lighter sentence (article 31 of the Penal Code).
Neither of the above measures applies if the person brought on his/her state of mind through alcohol or drugs. The concept of diminished responsibility does not apply in civil law (Radziwillowicz and Gil, 2004).
Last Updated: Wednesday 08 February 2017