Patients incapable of fully exercising their own rights

A patient may be temporarily or permanently unable to exercise their rights to the full extent.

This would be the case for:

• a minor patient who does not yet have sufficient maturity to independently make a reasoned decision concerning their own interests;
• a patient who is subject to legal protection (tutelle);
• a patient who is not in a fit state to exercise their rights – for example, a patient in a coma.

A patient who is a minor

Under civil law, the rights of a patient who has not yet reached the age of legal majority (currently set at 18) are exercised by their parents, or their legal guardian if one has been appointed.

The law on patients’ rights and obligations qualified this previously stringent rule, based on whether the minor is capable of reasonably assessing their own interests in terms of health.

A minor who is capable of making reasoned decisions about their own interests

When the healthcare professional deems the minor capable of understanding and making reasoned decisions about their own health interests, they will authorise the minor to exercise their own rights personally and independently.

The legislator has not set a minimum age at which a minor patient may be allowed to make their own decisions concerning their health. It is up to the physician, or to any other healthcare provider responsible for the patient’s care, to decide whether or not the minor has sufficient capacity to think rationally.

A minor who has been permitted to exercise their own rights may request that their parents or other representatives not be involved in their care journey. If they do not make such a request, then the healthcare provider is not bound by professional secrecy when talking to the minor’s legal representative(s).

A minor who is incapable of making reasoned decisions about their own interests

In this case, the patient’s rights relating to their health are exercised by the parents wielding parental authority, or, where applicable, the legal guardian.

Depending on their age and maturity, the minor may be involved in decisions relating to their health. Even if they are not capable of making decisions alone, their opinion must be heeded, as far as possible. Thus, the minor may be an active partner in the care that they receive.

A patient under legal protection

Under Luxembourg civil law (articles 488 et seq. of the Code Civil), there are 3 types of protection for people over the age of majority, which may be enacted and overseen by the guardianship judge (juge des tutelles):

• judicial protection (sauvegarde de justice),
• curatorship (curatelle),
• guardianship (tutelle).

The law on patients’ rights and obligations clarifies the way in which the rights of patients under these 3 protection schemes may be exercised.

A patient under judicial protection

Judicial protection carries the fewest restrictions on the protected individual, who thus retains a maximum of independence.

As a patient under judicial protection retains their legal capacity, they may exercise their own rights in relation to their health independently, and may appoint a person of trust.

A patient under curatorship

In principle, a patient under curatorship should exercise their own rights, with support from the curator. They may be authorised by a court to exercise all their rights relating to their health independently.

As a person under curatorship retains their legal capacity, they may (possibly with the support of the curator) validly appoint a person of trust.

Guardianship carries the most restrictions on the protected individual. This mechanism is established when a person needs permanent representation in order to take part in civil life. Therefore, a patient under guardianship can no longer exercise their own rights unaided.

If a person of trust was validly appointed before the guardianship was imposed, then the interests of the patient are, in principle, represented by that person of trust.

If the patient has no appointed person of trust or the latter refuses to intervene, the rights of the patient under guardianship shall be exercised by their legal guardian.

However, when imposing the guardianship or in a subsequent decision, the juge des tutelles may appoint a specific representative whose role is to represent the patient in matters relating to their health.

Depending on their capacity, the patient under guardianship may be involved in the exercise of their rights relating to their health. Even if they are not capable of making decisions alone, their opinion must be heeded, as far as possible. Thus, the patient under guardianship may be an active partner in the care that they receive.