Council of Europe standard and health care proxy granted in case of decision-making incapacity

Abstract

Objectives The aim of the article is to describe the Council of Europe's standard on medical (health care) proxy, which is granted in the event of decision-making incapacity. Examination of the legal norms, jurisprudence and values preferred by the Council of Europe will provide an opportunity to compare the Polish legal system with the standard of the Council of Europe, anticipating potential directions of the de lege ferenda solutions. Material and methods The paper uses the formal-dogmatic method. The analysis was based on: European Convention on Human Rights, European Convention on Bioethics, soft law documents, judicial decisions and literature findings. Results The results of the conducted research embrace the specific guidelines derived from the Council of Europe's standard for maintaining the autonomy of decision-making incapable individuals. The institution of health care proxy (medical power of attorney), when properly shaped, meets the requirements described. Conclusions The Council of Europe standard is in favour of diversifying the model of decision-making for an adult lacking capacity. The member states should make efforts to create the possibility for the person anticipating lack of capacity to choose the decision-maker on his or her behalf. A strong emphasis is also placed on preventing decision-making exclusion by creating participating mechanisms, as well as respecting the previously expressed wishes and preferences of the incapable person. The health proxy is an instrument that allows the preferences of the Council of Europe to be fulfilled, both in the context of making declarations in the event of incapacity and allowing the incapable person to be involved. A properly shaped regulation of this legal relationship ensures that the autonomy of the individual is respected and extended.

Keywords

• health care proxy
• mental capacity
• medical consent
• council of europe
• guardianship