2016: Decision making and legal capacity in dementia
Consent to medical treatment
There is no patient law on federal level, but the Swiss Constitution and other civil und penal laws are a legal basis for the central patients’ rights. On the other hand, we find a lot of different laws in the cantons. In Switzerland, the health system is very complicated. In 2015, the Federal Office of Public Health made a report on the rights and participation of patients in the Swiss health system:
It is clear – even if there is no special rule – that a doctor or another health professional has to ask the (informed) consent of a person before administrating medical treatment. Otherwise, it would be a violation of the personal freedom or even a personal injury. A patient who is unable to understand and make associated decisions cannot give an informed consent.
Consent for people unable to express their will
The new Law on the Protection of adults (concerns people who are unable to express their will) came in force on January 2013 and laid down uniform rules for Switzerland. It is part of the Swiss Civil Code, Articles 360 ff. Article 377, for example, stipulates that for treatment that was not determined in an advance directive, the doctor must draw up a treatment plan with the person authorized to represent the patient in medical matters. That person must be provided with all information pertinent to the proposed treatment. The doctor must nevertheless involve the patient in the decision-making process to the extent this is possible.
In article 378 the people who are authorized to consent or refuse treatment on behalf of the person with incapacity are listed in order of priority which is as follows:
- The person designated in an advance directive or in an order/mandate linked to incapacity (mandate pour cause d’inaptitude)
- The guardian (curateur) who has authorization to represent the person in medical matters
- The spouse or registered partner if he/she is living with the person or provides regular personal assistance to him/her
- The person’s descendants if they provide regular personal assistance to him/her
- The person’s father and mother if they provide regular personal assistance to him/ her
- The person’s brothers and sisters if they provide regular personal assistance to him/ her
In the case of several representatives, the doctor can, in good faith, presume that each acts with the consent of the others. In the absence of an advance directive, representatives must decide in accordance with the person’s presumed wishes and interests.
Decisions regarding the treatment and care of patients who have never had capacity must be guided exclusively by their best interests, and they must be made with the agreement of the persons legally entitled to act as representatives. A person who lacks capacity should be involved, as far as possible, in the decision making process.
The guidelines on the medical treatment and care of persons with disability (2008, revisited 2012) of the Swiss Academy of Medical Sciences (SAMS) distinguish between patients who have never had capacity and those who used to have capacity (article 4.2). With regard to the latter, it is stated that the doctor has to act according to the presumed will and interest of the patient. This should include trying to find out if they ever expressed their wishes in writing (e.g. in an advance directive) and taking into consideration statements made by the persons who have an authorisation to make medical decisions on their behalf. Healthcare staff should also try to determine whether a patient made his/her wishes known in another way, through relatives for example. In principle, any presumed wishes of the patient expressed in any of the above-mentioned ways take precedence over any decision to the contrary made by a legal representative. If the legal representatives do not agree with a treatment that is in the presumed interest of the patient, the Adult Protection Authority “Erwachsenenschutzbehörde” has to be involved.
The right to refuse treatment
One possibility to refuse treatment is through an advance directive. Generally speaking, the patient’s right to self-determination also covers the right to refuse treatment.
People who are allowed to decide on behalf of the patient also have the right to refuse treatment on his/her behalf. (But see above)
1.4 Consent to clinical trials
In Switzerland, there are specific regulations at federal level regulating the clinical trial of medicinal products. An Ethics Commission examines each project and the Swiss agency for the authorisation and supervision of therapeutic products (Swissmedic) is also involved. The Clinical Trials Ordinance (ClinO, SR 810.305), implemented on 01.01.2014, introduces a clear division in responsibilities between Swissmedic and the Ethics Committees. To find more information about aspects of clinical trials that fall under the competence of the Ethics Committees (e.g. insurance), please refer to www.swissethics.ch.
Consent to research
A new law came into force in January 2014: The Federal Act on Research involving Human Beings (Human Research Act):
Art. 16 Informed consent
In chapter 3 there are additional requirements for Research involving particularly vulnerable persons
Children, adolescents and adults lacking capacity must be involved as far as possible in the consent procedure.
A research project with an expected direct benefit may only be carried out in adults who lack capacity if:
a. this is permitted by the consent of the person concerned, granted while in a state of capacity and duly documented;
b. informed consent has been given in writing by the legal representative, a designated trusted person or the next of kin, if no documented consent is available; and
c. the person concerned does not visibly express opposition to the research intervention either verbally or by his or her behaviour.
A research project with no expected direct benefit may only to be carried out in adults who lack capacity if, in addition to the requirements specified in paragraph 1:
a. it entails no more than minimal risks and burdens; and
b. it can be expected to yield substantial findings which could in the long term be beneficial for persons with the same disease or disorder, or in the same situation.
The legal status of advance directives in Switzerland
The new law at federal level (i.e. the Law on the Protection of Adults, part of the Swiss Civil Code) came into force in 2013. It states that everyone can make an advance directive concerning the type of care that they would or would not like to receive in specific situations when they are no longer able to express their wishes (Article 370).
In the same way, everyone can designate a person who will be responsible for making decisions on their behalf concerning the choice of care to be provided in these same circumstances.
Advance directives must be respected as long as they correspond to the current situation and there is no indication that the patient’s will has changed.
Conditions surrounding the writing, validity and registering of an advance directive
It is not necessary to have witnesses or to involve officials when writing an advance directive. The document must however be in writing or print and must be signed. Several organisations (e.g. Pro Senectute) have ready-made advance directives that people can use. Alzheimer Switzerland published in 2013 an information sheet on this theme entitled “Rédiger des directives anticipées”
Capacity is presumed but in case of doubt, experts are called in to try to determine whether the author of the advance directive had the necessary capacity at the time the document was produced.
It is specified in the Law on the Protection of Adults that an advance directive must be sufficiently precise, correspond to the author’s presumed wishes and be an expression of the author’s free will. There is no time limit on the duration of advance directives. But nevertheless, they should be revisited regularly (as long as this is possible).
In addition, the appointment of a power of attorney must be publicly certified (or handwritten) and the document is examined by the Adult Protection Authority.
What an advance directive can cover
There are no conditions regarding the content of advance directives. They cannot, however, contain wishes or instructions that are against the law, e.g. for active euthanasia. Consent or refusal of life-supporting and/or life-saving treatment is possible.
Article 370 of the Law on the Protection of Adults (part of The Civil Code) allows for a competent adult to appoint in writing one or more people who in the event of his/her incapacity can consent to medical treatment on his/her behalf (i.e. a healthcare proxy).
Obligation to comply with instructions contained in an advance directive
According to article 372 of the Law on the Protection of Adults (Swiss Civil Code)
- When a doctor is treating a person who is incapable of discernment and does not know whether s/he has an advance directive, s/he must find out if one exists by consulting the patient’s health insurance card. This does not apply in case of emergency.
- S/he must respect the patient’s advance directive unless it violates the law, or if there are serious doubts as to whether it represents the patient’s free will or whether it corresponds to the his/her presumed wishes in the given situation.
- S/he must record in the patient’s medical file any reasons for failing to respect the advance directive.
Article 373-1 further states that any relative of the patient can inform in writing the guardianship authority of the patient that:
- the advance directive has not been respected;
- the patient’s interests are or risk being compromised;
- the advance directive does not represent the free will of the patient.
Doctors are not obliged to comply with an advance directive if there are grounds to believe that the document no longer corresponds to the patient’s wishes. This is difficult to determine once a person has lost capacity.
Amending, renewing and cancelling advance directives
An advance directive can be amended, renewed or cancelled at any time provided that the author still has the capacity of discernment.
Guidelines of the SAMS
The Swiss Academy of Medical Sciences (SAMS) has issued new guidelines on advance directives. For further details about these guidelines, please refer to: http://www.samw. ch/fr/Ethique/Directives/actualite.html
Issues surrounding the loss of legal capacity
The Swiss Civil Code of 10 December 1907 (RS 210) addresses the issue of incapacity.
A. Personality in general
I. Legal capacity
- Every person has legal capacity.
- Accordingly, within the limits of the law, every person has the same capacity to have rights and obligations. Art. 12 A. Personality in general / II. Capacity to act / 1. Nature
II. Capacity to act
A person who has capacity to act has the capacity to create rights and obligations through his actions.
Any person who has not been deprived of the faculty to act with reason due to his/ her young age, or has not been deprived of it as a result of a mental illness, weakness of the mind, drunkenness or other similar causes, is capable of discernment according to this law.
d. Capacity of judgement
A person is capable of judgement within the meaning of the law if he or she does not lack the capacity to act rationally by virtue of being under age or because of a mental disability, mental disorder, intoxication or similar circumstances.
Proxy decision making
The main principle of the reformed law is to support the subject’s right to choose (issue of advance directives, designation of a health care/welfare proxy) as well as to relieve the administrative and financial burden on the state. The new law institutes a standard instrument –deputyship (Curatelle, Beistandschaft) – in place of standardized measures. If a person is no longer able to handle their own affairs as a result of mental disability, psychiatric disorder or similar debility and the support provided by family members, private volunteers or public services is insufficient, the authorities will be called upon to tailor a support package for that person. They must determine the tasks and roles to be fulfilled by the deputy in accordance with the needs of the person concerned.
The authorities can appoint a family member (or several) as “deputy” (Curateur, Beistand). In this case the family members will be granted certain privileges. For example, they will not have to produce inventories or submit periodic reports, as is the case with institutional assistants.
In addition, the revised legislation also provides better protection to people without legal capacity who live in residential and/or nursing homes. A written care agreement must be concluded for these individuals in order to assure transparency about exactly what services are being provided and what costs are covered. It must also be stipulated under which conditions freedom of movement may be restricted. Finally, the cantons will be obliged by law to monitor such residential and nursing institutions.
The revised legislation also provides for the protection of dignity and extends the legal protection assured to people living in care homes.
For more information, (in English, French, German and Italian), please refer to:
Continuing powers of attorney
In Swiss civil law, it is possible to designate a representative. Article 32 of The Code of Obligations R.220 of 30 March 1911 states that the rights and obligations resulting from a contract made in the name of another person by an authorised representative fall upon that person (i.e. the person who is being represented
In practice, it is possible to appoint a representative but it has to be fixed that the representation continues even when the person being represented has lost his capacity. Otherwise the right of representation is extinguished (Art. 35 Code of Obligations).
Capacity in Specific Domains
Marriage, annulment and divorce
Every person who has reached the age of 18 and has the capacity of judgement has the right to marry. A marriage must be annulled if it is later found that one of the spouses lacked capacity at the time of the wedding and has not since regained the necessary capacity (article 105 of the Civil Code).
A spouse can request divorce after having lived separately for two years or beforehand if there are serious reasons that are not of his/her doing, which render the continuation of the marriage intolerable (art. 114 to 115 of the Civil Code).
Article 136 (political rights) of the Constitution states that all citizens over the age of 18, unless they lack legal capacity due to mental illness or mental incapacity, have political rights in federal matters.
It is further stated in the Federal Act on Political Rights of 17 December 1976 (version 2015) that persons lacking legal capacity who are ineligible to vote in accordance with Article 136 paragraph 1 of the Federal Constitution are persons who are subject to a general deputyship or are represented by a carer as they are permanently incapable of judgement.
That means that all other people with dementia have the right to vote.
Article 12 of the Civil Code states that a person who has capacity to act has the capacity to create rights and obligations through his actions. According to article 13, a person who is of age and is capable of judgement has the capacity to act.
A person is capable of judgement within the meaning of the law if he or she does not lack the capacity to act rationally by virtue of being under age or because of a mental disability, mental disorder, intoxication or similar circumstances (Article 16). A person who is incapable of judgement cannot create legal effect by his or her actions, unless the law provides otherwise.
Any person over the age of 18 and who has the capacity of judgement can dispose of his/her possessions by means of a will (or testament) (art. 467 of the Civil Code). There are three possible ways to do this according to article 498: 1. by means of a public act, 2. written, signed and dated by the testator (known as the “testament olographe”) or 3. orally.
Article 501 stipulates (for the public act) that once the will has been dated and signed, the testator must declare before two witnesses, in the presence of a public officer (that s/ he has read the will and that it contains his/her last wishes. The two witnesses then sign a document in which they certify that the testator made the declaration and seemed capable of making a will. S/he does not have to let the witnesses know the content of the will. Article 502 allows for the testator simply to declare to the public officer and two witnesses that the document (read by the officer) contains his/her wishes even if s/he has neither read nor signed it.
The holographic will “testament olographe” is a will which has been completely written, dated and signed by the testator him/herself. The cantons foresee the handing over of the document (either open or sealed) to the appropriate authorities responsible for dealing with such documents (article 505).
Finally, a will can be made orally if there are exceptional circumstances which justify this such as imminent death, an epidemic or war (article 506). The testator must declare his/ her last wishes to two witnesses who are then responsible for drawing up a deed.
A testament can be annulled if it was made by a person who did not have the necessary capacity at the time it was made (article 519).
Article 41 of the Code of Obligations stipulates that any person who causes damage to someone else, whether this be deliberate or due to negligence or carelessness, is obliged to provide compensation. A person who lacks capacity is not responsible but – in special cases - may be obliged to pay total or partial compensation for the damage that s/he has caused (article 54).
According to article 333 of the Civil Code, “the head of the family” is responsible for any damage caused by minors, people with mental illnesses and those with “weakness of the mind” unless s/he can justify having kept an eye on them as was appropriate in the particular circumstances. S/he must take the necessary measures to ensure that a person with a mental illness or weakness of the mind does not expose themselves or other people to danger or damage. S/he is expected to apply to the competent authorities in order to arrange for the necessary measures to be taken.
Criminal responsibility in case of incapacity is dealt with in article 19 of the Swiss Penal Code (RS 311.0).
It states that the author of a crime is not punishable if at the time it was committed s/he did not have the capacity to understand the illegal nature of his/her act or to behave in accordance with that understanding.
If the person who committed the crime only had reduced capacity, the judge may reduce the sentence. If there is any doubt concerning the responsibility of the author of the crime, the authorities or judge investigating the crime may, according to article 20, call for an expert assessment.
Classified compilation federal law
Last Updated: Thursday 09 February 2017