DESK REVIEWS | 04.05.02.01. Provisions exist which promote supported decision-making, which enable people with and without dementia or network of persons to discuss issues and make decisions

DESK REVIEW | 04.05.02.01. Provisions exist which promote supported decision-making, which enable people with and without dementia or network of persons to discuss issues and make decisions

The Mental Health Care Act (2017) has certain provisions that are relevant to persons with dementia such as advance directives and nominated representatives (Ministry of Law and Justice, 2017; Kumar et al., 2019).

References:

Kumar, C.T.S., Shaji, K.S., Varghese, M., Nair, M.K.C. (Eds) Dementia in India 2020. Cochin: Alzheimer’s and Related Disorders Society of India (ARDSI), Cochin Chapter, 2019. Available from: https://dementiacarenotes.in/dcnfiles/Dementia-in-India-2020.pdf

Ministry of Law and Justice. (2017). The Mental Health Care Act 2017. Government of India. Available from: https://egazette.nic.in/WriteReadData/2017/175248.pdf

For people who are perceived as not having capacity to make legal and financial decisions, the nomination of a trusted person is regulated under the Indonesian Civil Code, which is still largely based on the Dutch colonial legal system (Hariyanto, 2019). The process is known as pengampuan (Dutch: curatelle, English: conservatorship), and the legal basis are Article 433, 434, 437, 438, 439, 440, 441, 442, 449 of the Indonesian Civil Code (Indonesia: Civil Code, 1847) which are further described below. The fact that this is based on a legal system dating a century back might explain the use of a stigmatising and derogatory language [dungu (English: stupid) translated into ‘simple-mindedness’; and gila (English: crazy), translated into ‘insanity’).

Legal basis for pengampuan/curatelle/conservatorship:

  • Who is eligible to be put under conservatorship: ‘Article 433. An adult, who is in a continuous state of simple-mindedness, insanity, or rage, shall be placed under conservatorship, notwithstanding that he might have mental capacity from time to time. An adult individual may be placed under conservatorship as a result of improvidence.’ (Indonesia: Civil Code, 1847, p.65)
  • Who can have the conservatorship (trusted to make decisions): ‘Article 434. Each blood relative shall be authorized to request conservatorship on behalf of one of his relatives, due to his simple-mindedness, insanity, or rage. Conservatorship in respect of a person who is improvident may only be requested by the blood relatives in direct line, and by those in a collateral line up to and including the fourth degree. Due to one or more reasons, one spouse may request to put the other under conservatorship. An individual, who feels unable to take proper care of his affairs, due to limited mental capacity, may himself request to be placed under conservatorship.’ (Indonesia: Civil Code, 1847, p.66).
  • Time of the conservatorship being effective:
  • Article 446. The conservatorship shall be effective as of the date that the judgment or decision is passed. All acts committed thereafter by the individual placed in conservatorship shall be invalid by law….
  • Article 447. All acts committed as a result of simple-mindedness, insanity or rage, prior to the judgment granting conservatorship, may be invalidated if the grounds for seeking guardianship appeared to have existed at the time that the acts were committed’ (Indonesia: Civil Code, 1847, p.67).
  • Supporting documents needed to apply for conservatorship:
  • ‘Article 437. The events, which demonstrate simple-mindedness, insanity, rage, or improvidence, shall be specifically described in the letter of request, and the evidential documents as well as a submission of one of the witnesses shall also be enclosed…
  • Article 438. If the court of justice is of the opinion that the events are sufficiently significant to lead to a conservatorship, then the court shall conduct a hearing of the blood relatives or relatives by marriage…
  • Article 439. The court of justice shall, after a hearing or proper summons of the individuals as referred to in the previous article, question the individual whose conservatorship has been requested; in the event that he is immobile, the questioning shall take place in his residence by one or more judges designated thereto, accompanied by the court clerk, and in all matters, in the presence of the prosecution counsel… The prosecution counsel is not required to be present at this questioning; minutes shall be drawn up of the questioning of which an authentic copy shall be submitted to the court of justice… The questioning shall not take place before the letter of request as well as the report containing the views of the blood relatives, have been notified to the individual whose conservatorship is requested.’
  • Others
  • ‘Article 440. In the event that the court of justice, after the hearing or proper summons of the blood relatives or relatives by marriage, or after having heard the individual whose conservatorship is requested, decides that it has been adequately informed, the court shall, without any further formalities, deliberate upon the letter of request; in the event that it decides otherwise, the court shall instruct the hearing of the witnesses for the purpose of clarifying the matters presented.
  • Article 441. Following the questioning mentioned in article 439, the court of justice shall, in the event that there are grounds therefor, nominate a provisional administrator, to take care of the personal matters and assets of the individual, whose in conservatorship has been requested.
  • Article 442. The judgment upon a request for conservatorship shall be passed in a public court session, after a hearing or proper summons of the parties, and pursuant to the conclusions of the prosecution counsel…
  • Article 449. Upon the judgment in respect of conservatorship obtaining legal validity, the court of justice shall appoint a conservator. The appointment shall be immediately notified by the court to the Orphans’ Chamber. The supervising conservatorship shall be assigned to the Orphans’ Chamber… In this regard, the provisional administrator’s involvement shall cease, and he shall be required to submit an account of his administration; in the event that he is appointed as conservator, the account shall be submitted to the supervising conservator’ (Indonesia: Civil Code, 1847, p.66-67).
References:

Hariyanto, E. (2019). BURGELIJK WETBOEK (Menelusuri Sejarah Hukum Pemberlakuannya di Indonesia). Al-Ihkam: Jurnal Hukum Dan Pranata Sosial, IV(1), 141–152.

Indonesia: Civil Code. (1847).

There is no other document except the WHO Quality Rights Tool Kit outlining provision for supported decision making or advance planning in Kenya. Kenya’s legal capacity system does not meet the UN Convention on the Rights of Persons with Disabilities (CRPD). In 2011 the Kenyan government submitted a report to the UN Committee on the Rights of Persons with Disabilities, which contained an expression of intention to take legal steps to move towards supported decision-making from substituted arrangements. So far, this has not been implemented in practice (Mental Disability Advocacy Center (MDAC), 2014).

References:

Mental Disability Advocacy Center (MDAC). (2014). The Right to Legal Capacity in Kenya. Budapest, Hungary. https://tbinternet.ohchr.org/Treaties/CRPD/Shared%20Documents/KEN/INT_CRPD_ICO_KEN_19784_E.pdf

 

In eleven states in Mexico (Aguascalientes, Chihuahua, Coahuila, Colima, Mexico City, Mexico state, Guerrero, Hidalgo, Michoacan, Nayarit, and San Luis Potosí), there are advance directive laws that allow people to freely and consciously decide how they want to be medically treated if they face a terminal illness or an accident. For this reason, people who wish to make the request, must present themselves before notaries to express in advance how to be treated if they find themselves in that position. Regulation regarding advance directives include power of attorney regulated by the Federal Civil Code[1] established as a legal and judiciary condition for those individuals who do not have the capacity to make decisions on their own because of a mental disorder, illness, or due to impairment as a consequence of substance abuses and who are consequently limited as to their integrity and ability to make decisions and take care of themselves, and therefore need to appoint a legal representative (guardian and curator) who must attend to their legal life. Thus, patients with chronic, progressive, and degenerative and/or dementia such as Cerebral Vascular Disease, Huntington’s disease, and Alzheimer’s disease, fall into this category.

The guardian is the person who will be in charge of the guardianship of a person or their material goods, and the curator will be the one who will supervise the fulfillment of the obligations of the guardian. Healthcare power of attorney trials, take place in a family court in most of the country, for which the advice of gerontologists, geriatricians and neuro-geriatricians are recommended. In fourteen states in Mexico, Do Not Resuscitate Orders (DNR) are established through a law and its regulation[2] so that all individuals with intact capabilities can decide if they want to be submitted or not to means, treatments or medical procedures that aim to prolong their life when the person is at the end of life, aiming to protect their dignity, and favouring palliative care and end of life care. The emphasis is on accompanying the patient during this stage of his life, not prolonging or shortening his life, but respecting the natural moment of death. It is a document that will be used at the moment a doctor has diagnosed an advanced stage disease.

[1] CÓDIGO CIVIL FEDERAL. Nuevo Código publicado en el Diario Oficial de la Federación en cuatro partes los días 26 de mayo, 14 de julio, 3 y 31 de agosto de 1928. TEXTO VIGENTE: Última reforma publicada DOF 03-06-2019; http://www.diputados.gob.mx/LeyesBiblio/pdf/2_030619.pdf

[2] Ley de Voluntad Anticipada para el Distrito Federal, 2008 (https://drive.google.com/file/d/0B0qDlFGzsYQfaHFCQWQ0cXZKRzA/view ) and its Reglamento (https://drive.google.com/file/d/0B0qDlFGzsYQfSEJJV2QyTmMtNjQ/view )

South Africa lacks legislation that supports decision-making in persons with impaired capacity that need assisted decision-making provisions or a provision for an enduring power of attorney (Marilyn, 2015). The latter is practiced in other parts of the world; however, it does not currently form part of South African law despite being recommended in 1988 by the South African Law Commission (Meyer, 2016).

References:

Marilyn, H. (2015). Alzheimer’s – “The window of opportunity.” YE! Available from: https://youve-earned-it.co.za/finance/alzheimers-the-window-of-opportunity/

Meyer. (2016). Legal positions of persons incapable of managing their own affairs.