International cooperation seminar
National Taiwan University, Taipei (College of Law + Department of Psychology) and TH Köln (Beratung und Vertretung im Sozialen Recht)
Group 3
Psychology U2: 邱莉雯 CHIU,
Law U4: 郭恩佳 KUO,
Law U2: 林大偉 LIN,
Beratung und Vertretung im Sozialen Recht (Master):
Christian Eilermann, Ghina Pertsch, Anna Schmidt
CASE: HEALTH CARE
Paul J. (21 years old) has a severe intellectual disability and no verbal communication. He is living with his parents with whom he has a close relationship and is staying in a daycare institution from 9 am to 5 pm (Monday - Friday).
Care staff who knows him well noticed a deterioration in his behavior. In particular, they noticed that he was extremely protective of his face. They suspected toothache. However, he absolutely resisted letting anyone even come near his mouth. In attempts to find out what is wrong with him, it becomes clear that he completely resists any interference with his mouth. Later it turned out that he was indeed suffering from toothache.
Table of contents
1.German law of “Betreuung” (health care)
2.Taiwanese laws on medical treatments and patients
3.Legal comparison
4.International Law (centered on UN CRPD)
5.
Law of
“Betreuung”
German
Civil Code
Medical law
1.Requirements „Betreuer“ appointment
§ 1896 German Civil Code (BGB)
(1) If a person is of full age, by reason of a mental illness or a physical, mental or psychological handicap, cannot in whole or in part take care of his affairs, the
(2)A “Betreuer” may be appointed only for groups of tasks in which the “Betreuung” is necessary.…
→In his area of responsibility, the “Betreuer” represents the person under “Betreuung” in and out of court.
Area of responsibility: Health care
2.Scope of the “Betreuung” duties of the “Betreuer”
§ 1901 German Civil Code (BGB)
(1)The “Betreuung” includes all activities that are necessary to attend to the affairs of the person under “Betreuung” from a legal point of view in accordance with the following provisions.
(2)The "Betreuer" must take care of the affairs of the person under “Betreuung” in a way that is according to his or her welfare/best interests.
The
→Maintain
German medical law
=Every medical treatment always means an interference with the physical integrity (Art. 2 (2) p. 1 GG) (§ 223 StGB) and requires a justification:
1.medical indication: the doctor decides on this in accordance with § 1901 (1) BGB
2.consent (medical law § 630d) of the patient who is capable of giving consent and has been informed (medical law § 630e BGB).
German medical law
An effective consent requires,
that the doctor has previously informed about the chances, risks and side effects of the treatment (informed consent) § 630e (1) BGB (§ 630e BGB)
The information must be provided in accordance with § 630e (2) BGB:
-timely
-understandable
-verbally
Patient is capable of giving consent
•A person is capable of giving consent if he or she is able to comprehend the nature, significance and consequences of the intended medical measure and to determine his or her will accordingly.
•The basic assumption is that every adult is capable of giving consent, unless he or she is exceptionally incapable of giving consent for reasons of condition.
=able to reason (Einsichtsfähigkeit) and ability to act according to the formed will (Steuerungsfähigkeit).
•"The effectiveness of consent doesn´t depend on the patient's general legal capacity" [1].
[1] Fröschle, Studienbuch Betreuungsrecht
Forced dental treatment,
especially when free will is lacking in an individual case and significant harm is imminent (§ 1906 a German Civil Code)
•Only if patient is incapable!
•Patient now refuses treatment (facts of the case).
•Serious attempt to convince patient the necessity of the treatment
•The doctor must always inform the patient and achieve voluntariness (§ 630 c para. 2, p. 1 BGB)
•Treatment complies with the patient's will as defined in § 1901 a BGB, which was determined in accordance with § 1901 b BGB
•The compulsory treatment is reasonable and appropriate for the patient (principle of necessity /principle of proportionality) if considerable damage to health is averted and there is no alternative
=approval of the
Case – Result
Paul makes his decision
independently and on his own!
Family and caregiver/nurses/doctors
are bound by it.
Taiwanese
laws
Taiwan Civil Code
Patient Right to Autonomy Act
(PRAA)
Enforcement Rules of Patient
Right to Autonomy Act
Taiwan Civil Code
Art. 14 i. To protect an adult who is not able to make a legal decision or comprehend the effect of his/her decision, the court may order the commencement of guardianship at request.
Art. 15. Complete denial of legal capacity without exceptions
Art. 1098 i. The guardian is the legal representative with full authorities
Art. 1112 When enforcing guardianship relating the ward’s life, treatment, and financial management, the guardian shall respect the ward’s intent.
Patient Right to Autonomy Act (PRAA) in Taiwan
Ａrt. 4 PRAA
i. Patient’s Right to be informed of the diagnosis of disease, treatment options, and the potential effectiveness and risks. Patient’s Right to choose and make decisions regarding the treatment options provided by the physician.
ii.The patient’s legal representative… (hereinafter, “parties concerned”) may not prevent the medical institution or physician from acting on the patient’s treatment decisions.
Enforcement Rules Of Patient Right to Autonomy Act
Art. 3. In the cases when the patient has no or limited disposing capacity, his/her guardian is not restricted by Article 4 of PRAA.
Patient Right to Autonomy Act (PRAA) in Taiwan
Art. 5 ii. In cases when the patient has no or limited disposing capacity, is subject to an adjudication of the commencement of assistance, or unable to express ideas or understand ideas expressed by others, the medical institution or physician shall inform both the patient and the parties concerned in an appropriate manner.
Art. 6. Except for emergency cases, consent in writing from the patient or the parties concerned should be received prior to surgery or invasive examinations or treatments.
Enforcement Rules of Patient Right to Autonomy Act
Art. 5 i. Concerning consent regulated in Article 6 of Patient Right to Autonomy Act, the patient's consent shall be prioritized. When the patient does not express objection, the consent of the related party shall be granted.
ii.In cases when the patient has limited disposing capacity, in assisted declaration, or has significant deficiency in ability to express will, in addition to the patient's consent, the consent of the related person shall be obtained.
iii.If the patient has no disposing capacity, unconscious or unable to express his wishes clearly, consent should be obtained from the person concerned.
Case – Result
The guardian can decide
against the patient’s will!
Only the consent of the guardian is required, even though it goes against the patient’s will.
Legal Comparison
Taiwan
Incapacitation - complete denial of legal capacity without exceptions ( = incapable of giving consent)
The guardian is the legal representative with full authorities
No areas of responsibility
The consent of guardian is valid
Germany
The basic assumption is that every adult is capable of giving consent, unless he or she is exceptionally incapable of giving consent for reasons of condition.
(exception: reservation of consent)
The “Betreuer” is the legal representative with limited authorities
Areas of responsibility (principle of necessity)
The consent of the patient is valid
International law 
Central aspects of the UN CRPD
The States Parties to the present Convention,
(c)Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination.
Article 3 - General principles
1.Respect for human dignity, individual autonomy, including the freedom to make decisions, and independence;…
International law Central aspects of the UN CRPD
Article 12 - Equal recognition before the law
…(4) States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person,…
Comment from the perspective of CRPD
1.In the name of equality before the law, we should seriously consider whether ignoring one’s will and legal capacity is correct.
2.Taiwanese Civil Code declared a person to be denied of legal capacity, and many other law denies a person’s capacity based on this classification
→problem
(1). too rigid without flexibility based on cases
(2). the system focusing on property protection may not be suitable for
concerned are different
Comment from the perspective of CRPD
Suggestions for law amendment
-Use the concept of mental capacity, instead of disposing capacity
-Mental capacity: capacity to give consent while understanding the consequences, and thus differs case by case
→If Paul understands the consequence and insists on his decision, his decision should be respected, unless it will cause irreversible harm to his property or life
What options for action do the “Betreuer” and guardian have?
Promotion of
…“In attempts to find out what is wrong with him, it becomes clear that he completely resists any interference with his mouth.”…
SUPPORTED DECISION MAKING
Inform the patient about dental pain and pointing out the consequences
Support him in his
-protect Paul's right to
-communication
-experience
-involve the family as a resource mediator
-knowledge
→Establish and support capacity to act
A) How do we talk to Paul (preparation)?
creating optimal general conditions - basis: good relationship
B) How can we inform and consult him (content)?
Communication principles:
•always address Paul directly
•ask questions in different ways
•use easy or simplified language
→
•reassure and check what he has understood
•repetition of the procedures
Steps to supported decision making
If necessary, ask Paul if he would like to involve his family/relatives (transparency):
•identify Paul´s motivation behind resisting interference to his face
•request information about his previous reaction to illnesses in general
•ask about the condition of his teeth in the past
•inquire about Paul's experience regarding visiting the dentist
•clarify if he wishes to have company at the dentist
Preparation for an appointment at the dentist:
•experience of visiting the dentist - Is Paul afraid of dental treatment?
•explain to him the suspected cause of his pain and the recommended solution (→ pain relief)
•describe the consequences of early and delayed treatment
•gradual rapprochement (e.g. first appointment: visit to the
dental practice - second appointment: dentist will just
inspecting the tooth - third appointment: dental treatment)
→Give Paul time to make a decision by himself!
See Brosey, 2014,p. 211
