Medical Treatment and Expression of the Consent of the Elderly Not Able to Consent: A Comparative Analysis of the Case Law in the Countries of the Council of Europe

Abstract

The European Convention on Human Rights and Biomedicine, signed in 1997 in Oviedo, promoted by the Council of Europe and ratified by 29 of its Member Countries, is a relevant legal instrument to discipline medical treatments, specifically the giving of a free and informed consent to medical treatments. Article 6.3 establishes the protection of persons not able to consent. In this case “ a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law”.

Elderly people suffering from irreversible, debilitating and degenerative diseases, such as senile dementia, depression, cancer, Alzheimer's or Parkinson's diseases, which can cause loss of lucidity, are involved in this kind of regulation. These elderly patients should be subjected to chronic therapies. In this perspective the protection of their true and informed consent becomes a main issue and it should be protected relating the protection of their dignity, through the fair access to welfare provisions, the access to justice and the prevention of abuse and violence, specially when forced in therapies or medical treatments. The aim of this paper is to investigate the regulation and the case law related to the application of article 6.3 in the Member States who ratified the Convention on Human Rights and Biomedicine.

Keywords: Informed consent, Medical therapies, Chronic Illness, Protection of dignity, Mental disability

JEL Classification: K10