Legal Perspective on the Assessment of the State of Consciousness in a Person Suffering from Dementia or Another Dementing Disorder

Abstract

Subject of research – The considerations undertaken in this study focus on the issue of assessing, from a legal perspective, the state of consciousness of a non-incapacitated adult suffering from dementia or other dementing disorders.

Main thesis – A diagnosis of dementia or other dementing disorders is insufficient to render a declaration of will made or a legal act performed invalid in every case. The model of supported decision-making, especially the institution of a registered power of attorney, which would produce effects only from the moment when at least two doctors (a neurologist and a psychiatrist) establish that the ill person is in a state precluding conscious decision-making, is a desirable and necessary solution in the Polish legal system. In view of the plans to abolish the institution of incapacitation, this solution would be an expression of the legislator’s genuine concern for the protection of the rights of persons affected by dementing disorders.

Purpose of the research – The purpose of the considerations in this study is to indicate the heterogeneity of the legal provisions and the difficulties of interpretation in the area of the issues raised herein, as well as to attempt to answer the question of whether the legal regulations currently in force guarantee sufficient protection of the rights of a person suffering from dementia or another dementing disorder with regard to their right to self-determination.

Nature of the article – The article is a review. The cognitive value of the considerations made in the article, based on an analysis not only of legal doctrine, but also of medicine in the field of dementing disorders, may be of importance both for science and for practice, especially as regards the interpretation of the legal regulations currently in force.

Methods used – The study uses theoretical-legal and dogmatic-legal methods, based on an analysis of the substantive content and views of representatives of legal and medical doctrine, as well as on an extensive analysis of the body of jurisprudence. A problem-based analysis of the issue under study was carried out.

Conclusions – The issue addressed in this study is important not only legally but also socially. In view of the progressing demographic changes in Poland, the need to develop a comprehensive model for the protection of the rights of persons suffering from dementia or other dementing disorders is increasingly urgent in Polish law. Each dementing disorder has a significant impact on human consciousness. Within the framework of the right to self-determination, every person should be able to decide on their own affairs in the event of a deterioration in their health. The current gap in the law regarding the possibility of deciding that a third party will manage the affairs in the future of a patient who has only just been diagnosed with a dementing disorder may be filled by introducing into the legal system a registered power of attorney (also referred to in other countries as a ‘preventive’ or ‘guardianship’ power of attorney), the effectiveness of which will be triggered only after authorised doctors have established that the patient has lost awareness. In this way, under the Polish legal system, a person suffering from dementia or other dementing disorders will be genuinely guaranteed the right to self-determination, without doubts as to possible excessive state interference in the sphere of individual rights.