2. Free consent to treatment or care after comprehensive briefing

No treatment may be given without the free and informed consent of a patient capable of sound judgement, whether adult or minor. Patients have the right to refuse care, to interrupt treatment or to leave a health-care facility if they so wish.

The practical situation

Healthcare professionals must give patients information so they can give their free consent to undergoing treatment. Patients must be provided with sufficient information in a suitable manner. Even after this, patients capable of judgement are still entitled to change their mind and withdraw their consent at any time. They may refuse treatment, discontinue it or leave a care facility at any time. In this case the healthcare professional will inform them about any risks associated with their decision and will normally ask them for written confirmation. The risk associated with refusing treatment is then borne by the patients.

Treatment without consent

It is forbidden to give treatment without the patient’s consent. Only in exceptional cases and under very strict conditions can individuals who have been committed involuntarily to a care facility or patients who are incapable of judgement or who are being treated in psychiatric hospitals be forced to undergo treatment.
In addition, measures of restraint can be imposed if patients’ behaviour seriously threatens their own health and safety or to the health and safety of others (for example during violent outbursts) and all other measures have been unsuccessful.
Other legal provisions can also restrict personal freedom. Under the Epidemics Act, for example, individuals suffering from certain transmissible diseases can be hospitalised.

What is “capable of judgement”?

Someone is capable of judgement if they can assess situations correctly and make appropriate decisions. An individual’s capacity for judgement must be assessed in terms of the specific situation and issue. This means it needs to be reassessed each time a decision has to be made. Every person is considered to be capable of judgement, with the exception of small children and individuals who have lost their capacity as a result of mental deficits, psychiatric disorders, inebriation or similar reasons. Conversely, psychiatric disorders, advanced age, guardianship or being a minor do not automatically mean someone is incapable of judgement. As already mentioned, capacity for judgement must be assessed on a case by case basis.

Must healthcare professionals obtain consent for all interventions?

Basically yes, but the form this consent takes can vary. If the intervention is a non-invasive or routine medical procedure such as taking blood or measuring blood pressure, it can be assumed that you implicitly consent. If not, the healthcare professional must ask you clearly and distinctly whether you consent to the proposed treatment.

What happens if I am not capable of consenting?

Before treatment is given, the healthcare professional must try to determine your presumed will. They will find out whether you have a living will and/or whether you – or the competent authority – have designated someone to represent you. If this is not the case, your relatives are authorised to decide for you. Healthcare professionals are released from their professional obligation of secrecy towards them to the extent necessary. You will be involved as far as possible in the treatment plan that the doctor draws up for you in consultation with your representative or relatives. In an emergency, and if you have no one to represent you, healthcare professionals will act to the best of their knowledge and in good faith in your interest, taking your assumed will into account. Special regulations apply to people committed involuntarily because of psychiatric disorders.

Who are my relatives?

Relatives are your spouse or registered partner (provided they live in the same household as you or provide you with personal assistance); then come people who live in the same household as you, your children, your father, your mother and finally your siblings (as long as they provide you with personal assistance). Relatives are authorised to consent to or refuse medical measures if you have not designated a representative in a living will or power of attorney, or if you are not being represented by a counsel appointed by the competent authority.

Last modification 18.07.2019

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