A medical indication and the consent of the patient are prerequisite for every legal health care treatment.
According to Art 110 para 1 of the Austrian Penal Code (StGB) a person is liable to persecution if he/she treats someone without their consent, even if that stands in contrast to the law of medical science. Medically indicated and lege artis performed treatment are furthermore unlawful if they are carried out without consent or against the will of the patient. There are only certain emergency situations in which a doctor can treat a patient without his/her consent. These include situations, where a patient is incapable of giving consent (e.g. because of loss of consciousness) and obtaining approval of a legal representative would lead to a time delay, which would endanger the life of the patient or which would bear the danger of a serious health damage (Art 110 para 1 StGB, Art 8 para 3 KAKuG).
The so-called coercive treatment, which comprises treatment or examination against a patients’ will, constitutes another exception of the legal basis, which is e.g. only possible according to the Austrian Penal System (StVG), the Austrian Epidemic Law (EpG) or the Austrian Tuberculosis Law (TbG). Furthermore, it is possible to hospitalize a person suffering from mental illness against his/her will in a psychiatric department, if the conditions set out in the Austrian Hospitalization Act are fulfilled. However, also hospitalized persons suffering from mental illness have to give their consent to a concrete health care treatment.
5.1 Persons required to give consent
Judicious persons who have the cognitive faculty can only give consent themselves to a health care treatment. This also applies when a person does not speak the German language. If a physician and a patient do not speak the same language a professional interpretation service has to be used in order to effectively gain a patients’ consent. If a professional interpretation service is not available another language mediation (service) has to be used for that purpose. Thus, it is not possible, that e.g. the German speaking husband gives consent to the treatment of the non-German speaking wife.
Furthermore, the consent has to be given without the absence of intention. Therefore it is important to pay attention to the concrete circumstance e.g. that a patient does not take the decision under pressure. Particularly in patriarchal societies it can occur that men want to take decision for their wives and daughters. In this case special sensitivity by the physician is required, if necessary the man has to be asked to leave the room or the physician does not carry out the medical intervention if the woman does not give consent.
EXAMPLE: Asylum seeker A consults you in your practice with his 14 years old daughter T. Both live in Austria already for over a year and speak German very well. The daughter suffers from severe stomach pain and you assume it is menstrual pain. The daughter seems to be very shy and A answers all questions, also those questions which you direct towards T. In this case you are required to ask A to leave the room, so you can talk to T alone.
If patients are incapacitated then a legal representative has to consent or refuse consent for them. Legal representatives for minors are basically the parents, for adults a trustee has to be appointed, provided that neither a patient decree exists nor an authorized representative for health matters was chosen.
5.2 Refusal of treatment due to religious reasons
Every patient can generally refuse any kind of health care treatment without giving reasons. Thus, the refusal of medically indicated treatment is lawful in principle. However, adverse consequences that result from it have to be borne by the patient him/herself, if applicable (OGH 22.06.2011, 2 Ob 219/10k).
EXAMPLE: The asylum seeker A is seriously injured by a drunken car driver. Because A is a Jehovah’s Witness she refuses to receive blood reserves. A couple of days later she passes away. The relatives of the deceased demand that the car driver pays compensation for the funeral expenses and compensation for personal suffering as well as for pain and suffering of A. On principle, every self-entitled person can refuse a medical treatment without reason. However, if the patient makes an objectively unfavourable decision he/she has to bear the resulting disadvantages him/herself. The relatives receive only compensation for the injury of A but not for her death. At the same time, the violation against the obligation to reduce damage and loss, cannot be attributed to the treating physician.
5.3 pecial questions regarding the treatment during the asylum procedure
In the course of the asylum procedure certain medical procedures are often carried out. It is important to note that these are not coercive treatments, which can also be carried out against the will of the asylum seeker, but require consent.
For the following medical treatment an informed consent is required in any case:
- Multifactorial medical age assessment (Art 2 para 1 clause 25 AsylG 2005 iVm Art 13 para 3 BFA-VG)
- Initial health assessment at the initial reception centre
- Vaccination „Catch-up“
- DNA analysis to proof a family relationship
EXAMPLE: The asylum seeker A needs to give a DNA sample in order to clarify if she is A’s daughter. A refuses the sample collection. It is not permitted to collect DNA from A, especially not by means of coercion. A DNA extraction and analysis is only lawful if informed consent was obtained (beforehand).
5.4 Refusal of treatment by means of patient decree or through an authorized representative
If a patient is judicious, has the cognitive faculty and can express his/her will, the planned medical treatment needs to be discussed with him/her and his/her current consent is required. If a patient is not judicious and lacks the cognitive faculty a trustee has to be appointed in order to make to a medical decision (see below). However, patients can also anticipatory specify their will in the form of a patient decree or through a health care proxy (for health matters).
5.4.1 Patient decree
A patient decree is a declaration of intent with which a patient refuses a medical treatment. It comes into effect when he/she is not judicious, lacks the cognitive faculty and cannot express his/her will at the time of treatment (Art 2 para 2 PatVG). In Austria the law differentiates between a binding and a “to-be-considered” (beachtliche) patient decree.
The following criteria have to be fulfilled that a patient decree becomes binding:
- A comprehensive medical consultation by a doctor, including information on the character and consequences of the patient decree for a medical treatment. The doctor, who holds the consultation has to document the consultation process as well as the persons’ ability to judge and cognitive faculty, by stating his/her name, address and giving his/her personal signature. Thereby the doctor has to explain that and based on what reasons the patient appropriately assesses the consequences of the patient decree, e.g. because it relates to a treatment which is linked to an earlier or current illness of the patient or one of his/her close relatives.
- Written account/certification by stating the date before a layer, a notary public or a legally qualified staff of the patient representative.
Such a binding patient decree loses its legally binding nature after the expiration of five years starting from the date that the patient decree came into effect, provided that the patient has not determined a shorter period of time. A decree can be renewed after corresponding medical consultation and renewed written account before a layer, a notary public or a legally qualified staff of the patient representative. Then, the validity period of five years starts again.
If a binding patient decree exists the therein refused medical treatment must not be carried out.
EXAMPLE: The asylum seeker A knows that in Austria many medicines contain gelatine and therefore pork products. Under no circumstances he wants to receive pork products and therefore enacts a binding patient decree in Austria in which he clearly refuses the administration of any medication which contains pork products. In actual fact, A is soon not judicious anymore and lacks cognitive faculty. When the administration of Heparin is required from a medical standpoint, (Heparin is a medicine which is gained by the extraction of the pancreatic gland, respectively from the small intestine of the mucous membrane of pigs), the treating physicians are bound to the legally binding patient decree of A. They must not administer this medication, not even if there is no alternative to the medication.
If a patient decree does not fulfill all listed criteria or if the legally binding nature has already expired, it classifies as a “to-be-considered” patient decree. The more such a “to-be-considered” patient decree fulfills the prerequisites for a binding patient decree, the more it has to be considered, when a patients’ will becomes identified and determined. Thereby some points have to be particularly taken into account: in how far could the patient assess the state of illness, to which the patient decree refers to, and in how far could the patient assess the consequences at the time when the decree was arranged; how concrete are the medical treatments, which are subject to refusal described; in how far does the decree derivate from the formal requirements of a binding patient decree; how often was the patient decree renewed and how long ago was the last renewal.
EXAMPLE: Asylum seeker A decided that she refuses artificial feeding though a PEG tube. She talked about it with you as her general practitioner. Together with her you formulated a patient decree, signed by you and A. A wants to complete the patient decree to become binding and get the written account before a layer or a notary public, but she cannot bear the cost for it. Thus, she leaves the patient decree as it is. A few weeks later A is hit by a car, she is severely injured and hospitalized. Her relatives hand over the patient decree to the physicians treating her. Because the patient decree does not fulfil all formal criteria for being binding (the notary certification/written account before a notary public/ layer/ patient representative is missing), it exists as a “to-be-considered” patient decree. However, it has to be taken into consideration the more it fulfils the prerequisites of a binding patient decree. Because the present “to-be-considered” patient decree was only issued a few weeks ago and include a concrete refusal which was communicated to you, the treating physicians will (have to) stick to it.
5.4.2 Further useful information with regards to patient decree
- A patient decree is arranged for treatment refusal in the last phase of a life (earlier it was referred to as “patient testament”) or because of religious or culturally motivated treatment refusal or limited treatment consent (e.g. refusal of external blood transfusion by Jehovah’s Witness)
- A patient decree is an obligation to provide è it is the patient’s responsibility to bring it to the physician’s attention. Targeted inquiries are therefore helpful!
- The medical explanatory chat to arrange for and create a patient decree is refundable by the health insurance fund as an extended medical explanatory chat.
- Patient decrees which are made abroad are valid as “to-be-considered” patient decrees, provided that the formal criteria are comparable to the Austrian ones. In practice, however, the consideration of the foreign patient decree will (mostly) fail because of the language barrier. There is no obligation for the physician to translate a patient decree which is not issued in German.
5.4.3 Health care proxy (in health matters)
Similar to a patient decree a health care proxy allows the patient in advance to exercise the right of self-determination, in the case he/she loses his/her ability to judge, cognitive faculty and capacity to express his/her will.
Thereby a patient appoints and authorizes one or more persons to procure certain matters for the case that he/she lose his/her legal capacity, respectively its ability to judge and cognitive faculty (so called precaution case).
If an appointed and authorized person should be able to agree to and refuse treatments which are commonly connected to a severe or sustained impairment of the physical integrity or the personality, it requires the following formal requirements (Art 284 f para 3 ABGB)
- Establishment with expressly referring to this matter before a layer, a notary public or before a
Certain highly personal rights cannot be subject of a health care proxy such as in particular the consent to organ donation of a patient who is alive and the medically not necessary sterilization.
EXAMPLE: Asylum seeker A suffers from a severe illness. He appoints his wife F to legally make healthcare decisions on behalf of him. Both talked a lot about the fact that A does not want any more surgeries. When the physicians recommend an operation, F refuses consent. The physicians find that this is “unreasonable”, because “one could at least try it”. However, as the appointed authorized person, F has to comply with A’s will and therefore refuses the surgery. If A had not had an authorized person, the court would have to order a trustee. A trustee would not be allowed to decide “unreasonable” and would have to agree to the surgery after getting a second physicians opinion, provided that it is in the objective best interest of A.
If a health care proxy is established abroad, it is principally also valid in Austria. In terms of questions of existence, extent, change as well as termination of a health care proxy the International Protection of Adults (Haager Erwachsenenschutzübereinkommen (HESÜ) determines the governing law. If no choice of law was made, the law of the respective state where the adult was ordinary resident at the time he/she issued the health car proxy is decisive. The later transfer of the habitual residence does neither lead to a healing nor to the annihilation of the invalid proxy or a valid proxy. In practice, there remain some open questions particularly for foreign language health care proxies (e.g. cost coverage for translation).
If an adult suffers from a mental illness or is mentally disabled and is not able to manage all or part of his/her matters without the risk of disadvantage for him/herself, a trustee has to be appointed either by application or ex officio. A trustee must not be appointed provided that a health care proxy or a binding patient decree makes provisions for the concrete situation.
In order for the trustee to be competent in decisions in the field of health care, his/her determined area of responsibility has to include the consent to medical treatment.
If a treatment is connected to a severe or sustained impairment of the physical integrity and personality, the trustee has to gather a certificate of a second, independent physician (second opinion) prior to giving his/her consent, wherein the physician confirms that (a) the person is unable to give consent and (b) the treatment is required for her/his wellbeing (Art 283 para 2 ABGB). The consent of the trustee requires an authorization by the court if no certificate of an independent physician exists or if the patient indicates that he/she refuses the treatment (Art 283 para 2 clause 2 ABGB).
The guardianship court can replace the consent of the trustee, if he/she refuses it against the wellbeing of the patient (Art 283 para 2 last sentence).
If danger is imminent neither the consent of the patient or the trustee nor the decision of the court is required according to Art 283 para 3 ABGB.
EXAMPLE: The asylum seeker A is in a coma for a long time and therefore has a trustee S. The condition of A continually deteriorates. There was a possibility to do surgery, however, the surgical risk is very high and the chances of being cured are very low. This is attested by two physicians acting independent of one another. Therefore S must not agree to the surgery.
5.6 Who decides when?
The following table gives you an overview on the above described:
|Starting position||Type of treatment||Who decides|
|judicious patient who has the cognitive faculty||simple and severe treatment||patient|
|judicious patient who has the cognitive faculty with trustee||simple and severe treatment||patient|
|not judicious patient who lacks the cognitive faculty with a trustee||simple treatment||trustee|
|(not judicious patient who lacks the cognitive faculty with a trustee)||severe treatment||trustee + second opinion if no second opinion is available or the patient objects => court|
|not judicious patient who lacks the cognitive faculty and imminent danger||simple and severe treatment||physician|
|not judicious patient who lacks the cognitive faculty with health care proxy (in health matters)||simple and severe treatment||authorized representative|
|judicious patient who has the cognitive faculty who is not able to express his/her will, with health care proxy (in health matters)||simple and severe treatment||authorized representative|
|not judicious patient who lacks the cognitive faculty with binding patient decree||simple and severe treatment||patients’ refusal in binding patient decree|
|not judicious patient who lacks the cognitive faculty with “to-be-considered” patient decree||simple and severe treatment||Induce appointment of a trustee
If “to-be-considered” patient decree is qualified the refusal of patient becomes effective