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Slovakia

2016: Decision making and legal capacity in dementia

Consent

Act No. 576/2004 Coll. of 21 October 2004, regulating the healthcare and health-related services (hereafter referred to as the Act on Healthcare) seems to be the main law governing patient rights and decision making in the context of healthcare. Unless otherwise stated, the references in this report on healthcare and decision making in the Slovak Republic will be to the relevant sections and paragraphs in the Act on Healthcare.

Consent to medical treatment

Informed consent must be given prior to the provision of healthcare (§ 4.4). It should be given by person to whom the healthcare is to be provided or by a legal representative, if the person is unable to give informed consent. Patients with incapacity should participate in the decision-making process to the greatest extent possible (as determined by their level of capacity) (§ 6.5). Details of the informed consent including a statement made by patients with incapacity should be recorded in the medical file.

The right to refuse treatment

If a legal representative refuses treatment for a patient who is unable to give informed consent, and doctors are of the opinion that such treatment is in the patient’s best interests, they have to submit an application to the relevant court to override the legal representative’s refusal. Whilst this is being decided, only life-saving treatment can be provided (§ 6.7).

The right to withdraw consent

Any person who gave valid informed consent can freely withdraw it at any time (§ 6.8).

Consent to biomedical research

According to § 11.9 (e), every person is entitled to decide whether or not to take part in educational or biomedical research.

Title 4, Chapter 1 of the Act on Healthcare is dedicated to the issue of biomedical research. Such research cannot be carried out on a person who has been involuntarily interned. Otherwise, the following provisions apply (§ 32):

Title 4, Chapter 1 of the Act on Healthcare is dedicated to the issue of biomedical research. Such research cannot be carried out on a person who has been involuntarily interned. Otherwise, the following provisions apply (§ 32):

“(1) Medical indication based research with participation of a person incapable of giving an informed consent can be performed only in case

(a) the research with comparable effectiveness cannot be performed with the participation of a person capable to give an informed consent,

(b) the person was informed about the research and about his rights and legal measures for their protection in a way adequate to their health condition and mental abilities,

(c) the person does not express evident disapproval with their participation in the research in a way adequate to their abilities to express disapproval regarding to their physical and mental condition.

(2) Research without medical indication with participation of the person incapable of giving an informed approval can be exceptionally performed in the case that, besides conditions as per section 1, the following conditions are met:

(a) the objective of the research is to achieve results bringing benefit for other persons in the same or similar condition, suffering from the same or similar illness or handicap,

(b) the research represents for the participant only

1. a risk, according to the current state of scientific knowledge constitutes only low and short-term negative influence to the health condition of the research participant (hereinafter “minor risk”) or

2. a burden with only a low and short-term inconvenience (hereinafter “minor burden”).

(3) Bio-medical research with the participation of a person incapable of giving an informed consent can only be performed on the basis of an informed consent of the legal representative of the

Advance Directives

According to Defloor et al. (2008), there is no legislation in the Slovak Republic covering previously expressed wishes.

Legal Capacity

The sources of information concerning the legal capacity are the international agreements, the Constitution of the Slovak Republic and the Act No. 40/1964 Coll. – The Civil Code. From the 1st July 2016 the legal basis of the legal capacity will be the Act No. 161/2015 – The Civil Proceedings Code for Non-Adversarial Proceedings.

Issues surrounding the loss of legal capacity

The Act No. 40/1964 Coll. – The Civil Code permits a restriction, as well as complete loss of the legal capacity. The issues surrounding loss of legal capacity according to Act No. 40/1964:

§ 10

  1. If an individual is completely unable to do legal acts due to a permanent mental illness, the court shall deprive him of the capacity to legal acts.
  2. If an individual is able to do only certain legal acts due to a permanent mental illness or to an immoderate consumption of alcoholic beverages, the court shall restrict his capacity to legal acts and shall specify the extent of such restriction in the decision.
  3. The court shall change or cancel the deprivation or restriction of the capacity to legal acts if reasons leading thereto changed or fell out.

The Act No. 161/2015 – The Civil Proceedings Code for Non-Adversarial Proceeding, valid from the 1st July 2016 does not allow the complete loss of the legal capacity and is describing only the restriction of the legal capacity:

§ 231

In civil proceeding in legal capacity the court decides on:

  • a) the restriction of the individual´s capacity to legal acts,
  • b) the change in the restriction of the individual´s capacity to legal acts,
  • c) the return of the individual´s capacity to legal acts.

A legislative proposal for initiation of the proceedings have to contain except of the general requisites of the proceeding a description of the evidence justifying the intervention into the individual´s legal capacity and a reason to justify, that the less restricting action is not possible, or description of the evidence justifying the change in the restriction of the individual´s capacity to legal acts, or evidence justifying the return of the individual´s capacity to legal acts (§ 234). The parties in the proceeding are a plaintiff and a person, whose legal capacity is being proceeded (§ 236). Close person or a person, who can prove a legal interest, can suggest that the court should include him as a party of the proceedings (§ 237). The person, whose legal capacity is being proceeded, has the capacity to act fully independently in the court (§ 239).

3.2 Proxy decision making

The Act No. 40/1964 knows 2 ways of representation – legal representation (guardianship) and power of attorney. In general, the Act states:

 § 22

  1. A representative shall be defined as a person who is entitled to act for someone else in his name. Rights and duties shall arise directly to the represented person.
  2. Nobody can be represented by a person who is not capable to the act that is concerned or by a person whose interests are at variance with the interests of the represented person.

§ 23

The representation shall arise on the basis of an act or of a decision of a state authority (hereinafter the "legal representation") or on the basis of an agreement on a power of attorney.

§ 24

The representative must act in person; he can have himself represented by a substitute only if it is allowed by a legal regulation or agreed by the participants. Even the substitute's legal acts shall establish rights and duties directly to the represented person.

Guardianship

The conditions for the appointment of a guardian and how guardianship is arranged

The Act No. 40/1964 Coll. – The Civil Code says that if individuals are not capable to legal acts, they shall be represented by their legal representatives (§ 26). An individual who was deprived of his capacity to legal acts by a decision of the court or whose capacity to legal acts was restricted by a decision of the court shall be legally represented by a curator appointed by the court (§ 27 para. 2).

In the Act No. 161/2015 – The Civil Proceedings Code for Non-Adversarial Proceeding is stated that when the court decides to restrict the individual´s legal capacity, the extent of the restriction is specified in the judgement and a guardian is appointed by the court (§ 248 para. 2).

Who can be a guardian

According to the Act No. 40/1964 Coll. – The Civil Code (§ 27, para. 3) the guardian should be either a relative, a close person or an authority of local administration – unless a relative of the individual or other person meeting the requirements therefor can be appointed as a curator of the individual, the court shall appoint as the curator an authority of local administration, eventually its institute entitled to act in its own name.

The duties and responsibilities of guardians

The Act No. 161/2015 – The Civil Proceedings Code for Non-Adversarial Proceeding states that in a decision on appointment of a guardian, the court specifies the range of the guardian´s rights and obligations in compliance with the purpose on which the guardian was appointed (§ 274, para. 2). The court-appointed guardian performs his rights and obligations properly and respects the court instructions (§ 275). As stated in the Act No. 40/1964 Coll. – The Civil Code (§ 28), the legal representatives are also obliged to manage the property of the represented persons, a disposition of this property, except for usual affairs, shall require an approval of court.

Measures to protect the ward from misuse of power

According the Act No. 161/2015 – The Civil Proceedings Code for Non-Adversarial Proceeding (§ 277 para.1) the court supervises the discharge of the function of a guardian.

Duration of the guardianship measure

The Act No. 161/2015 – The Civil Proceedings Code for Non-Adversarial Proceeding states that the court recalls a guardian from his function on the suggestion of the guardian (§ 276). The court recalls a guardian if he is deprived of the capacity to discharge the function of a guardian, if he commits a breach of an obligation or abuses his rights, or of another serious reasons (§ 277 para. 2).

Powers of attorney / Lasting Powers of Attorney

The conditions for the appointment of a power of attorney and how durable powers of attorney are arranged

As stated in the Act No. 40/1964 Coll. – The Civil Code in doing a legal act, a person may have itself represented by an individual or by a legal entity. For this purpose, the empowering person shall grant the attorney a power of attorney that have to specify the scope of the attorney's powers (§ 31 para. 1). If the power of attorney is granted to a legal entity, the right to act for the empowering person shall be exercised by the statutory body of the legal entity or by a person granted a power of attorney by this body (§ 31 para. 2).

Who can be appointed attorney

As mentioned above, an appointed attorney can be an individual or a legal entity and in this case the right to act for the empowering person shall be exercised by the statutory body of the legal entity or by a person granted a power of attorney by this body. In addition to this the Act No. 40/1964 Coll – The Civil Code (§ 31 para. 3) states that the power of attorney may be granted even to more attorneys together. Unless the power of attorney granted to more attorneys stipulates otherwise, all the attorneys must act jointly.

The duties and responsibilities of the attorney

The Act No. 40/1964 Coll. – The Civil Code says that if the attorney acts for the empowering person within the scope of its powers, the rights and duties shall arise directly to the empowering person. Instructions given to the attorney that do not follow from the power of attorney shall have no influence on the effects of the act unless the third party knew about these instructions (§ 32 para 2.).

Measure to protect the person from misuse of power

The Act No. 40/1964 Coll. – The Civil Code states: If the attorney trespassed his powers following from the power of attorney, the empowering person shall be bound only if he has approved this trespass. However, unless the empowering person informed the third party of his disagree without undue delay after he learnt of the trespass, the empowering person shall be considered to have approved the trespass (§ 33 para. 1). (2) If the attorney trespassed his powers to act for the empowering person or if someone acted for someone else without a power of attorney, the acting person itself shall be bound from the act unless the person for whom the act was done approves it subsequently without undue delay. Unless the empowering person approves the trespass of the power of attorney or of the act without a power of attorney, the third party may ask the acting person either for performance of the obligation or for compensation of damage caused by his act (§ 33 para. 2). The provision of paragraph 2 shall not apply if the third party knew about the lack of a power of attorney (§ 33 para. 3).

Duration and right to appeal

The Act No. 40/1964 Coll. – The Civil Code (§ 33b) states that (1) The power of attorney shall become extinct a) after the legal act to that it was restricted was done; or b) if it is recalled by the empowering person; or c) if it is terminated by the attorney; d) if the attorney dies.

(2) The power of attorney shall become extinct at the moment of death of the empowering person unless anything else follows from its content. If the empowering or empowered legal entity is dissolved, the power of attorney shall become extinct only if its rights and obligations do not pass to other person. (3) The empowering person may not validly waive its right to recall the power of attorney at any time. (4) Before the attorney learns of the fact that the power of attorney was recalled, its legal acts shall have the same effects as if the power of attorney still existed. However, this provision cannot be appealed by a person who knew or must have known of recall of the power of attorney. (5) If the empowering person informed other person that he granted the attorney a power of attorney to certain acts, the empowering person may appeal vis-á-vis this person to the recall of the power of attorney only if he informed this person of the recall before the attorney did the legal act or if this person knew of the recall at the moment when the attorney did the legal act. (6) If the empowering person dies or if the attorney terminates the power of attorney, the attorney must take all steps that are urgent so that the empowering person or its legal successor does not suffer from a detriment of his rights. Legal acts done in this way shall have the same effects as if the representation still existed unless they are contrary to what the empowering person or its legal successors arranged for.

Capacity In Specific Domains

Marriage and divorce

The Act No. 36/2005 Coll. – The Family Act (§ 12) states that: (1) A person who was deprived of capacity to legal acts cannot enter into marriage. (2) A person whose capacity to legal acts is restricted may enter into marriage only with an approval of court. (3) A marriage cannot be entered into by a person suffering from a mental illness that would lead to a restriction of capacity to legal acts. The court can allow entering the marriage to such a person if its health condition is compatible with a purpose of marriage. (4) If a marriage is entered into by a person deprived of capacity to legal acts or by a person suffering from a mental disorder that would lead to deprivation of capacity to legal acts, the court shall declare the marriage invalid even without a petition. (5) If a marriage is entered into by a person whose capacity to legal acts is restricted or by a person suffering from a mental disorder that would lead to deprivation of capacity to legal acts without the approval of a court, the court shall declare such marriage invalid upon a petition of any of the spouses. The court shall not declare the marriage invalid if the health condition of the person became compatible with social purpose of marriage

Voting capacity

According to the Act No. 180/2014 Coll. - Conditions of Exercise of Voting Right one of the restrictions of the right to vote (§ 4) and to be voted (§ 6) is the loss of the legal capacity.

Contractual capacity

As stated in The Act No. 40/1964 Coll. – The Civil Code (§ 38 para. 1) a legal act done by a person incapable to legal acts shall be invalid. In the new Act No.

Criminal responsibility

As stated in the Act No.300/2005 Coll. – Criminal Code, no person incapable of judging the seriousness of an act, which otherwise gives rise to criminal liability, at the time of its commission, or to exercise self-restraint because of mental disorder may be held criminally liable for such an offence, unless this Act provides otherwise.

 

 

 

 

 

 

 

 

 

 

 

 
 

Last Updated: Thursday 09 February 2017

 

 
  • Acknowledgements

    This report received funding under an operating grant from the European Union’s Health Programme (2014-2020). The content of the Yearbook represents the views of the author only and is his/her sole responsibility; it cannot be considered to reflect the views of the European Commission and/or the Consumers, Health, Agriculture and Food Executive Agency or any other body of the European Union. The European Commission and the Agency do not accept any responsibility for use that may be made of the information it contains.
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