Health of a person under guardianship or curatorship: What are the rules?

Verified 16 August 2023 - Directorate for Legal and Administrative Information (Prime Minister)

Do you want to know if a person placed under guardianship or guardianship can have access to his or her medical information and if he or she can make a decision about himself or herself? We present you with the information you need to know.

Supervision
Access to medical information

In principle, the medical information shall be given to the guardian.

However, the person under guardianship has the right to receive the information directly.

The guardian can access all information about the protected person's health.

If the guardian so requests, the documents shall be communicated to him within eight days of his request and at the earliest after a 48-hour reflection period has been observed.

This period is extended to 2 months when the medical information is more than 5 years old or if the departmental committee of psychiatric care is seized.

Observance of professional secrecy

Once the guardian has access to the health information of the protected person, the guardian must respect the medical confidentiality. It is therefore forbidden to disclose to third parties any information on the state of health of the person under guardianship.

Medical procedure
  • If its state allows it, the protected person may take alone medical decisions that affect her.
  • If its state does not allow it, it is either the protection litigation judge (former guardianship judge), or family council if it has been set up, to provide that it will be assisted by guardian. This is for all acts concerning his person or certain acts.
    Where such assistance is not sufficient, the court may authorize the guardian to represent the person concerned, including for acts which have the effect of seriously harming his bodily integrity, such as surgical operations.
    In the event of a disagreement between the protected person and his guardian, the judge shall authorize either of them to take the decision, at their request or of their own motion.

Except in urgent cases, the guardian cannot, without the authorization of the protection litigation judge (or the family council if it has been set up), take a decision that has the effect of seriously violating the privacy of the protected person. These include, for example, sterilization for contraceptive purposes or voluntary termination of pregnancy (abortion).

FYI  

no one has the right to access medical information (including medical record) of the protected person. In order for someone to access it, the protected adult must consent to it or the protection litigation judge must authorize it.

Curatelle
Access to medical information

The protected person receives herself the information and consents alone to the medical procedures concerning it.

Sound curator can't intervene, he can only advise her.

The curator shall not have the right to access the medical record of the person under guardianship. If he needs it, the protected person must issue a warrant to that effect.

If the protection measure provides for assistance in personal decisions, the curator must co-sign the protected adult's request for access to his or her file. But the curator cannot make this request of himself.

Medical procedure
  • If its state allows it, the protected person may take alone medical decisions that affect her.
  • If its state does not allow it, on protection litigation judge (ex guardianship judge) may decide that she is assisted by a curator for all acts relating to his person or to certain acts.

Except in urgent cases, the curator may not, without the authorization of the protection litigation judge, take a decision which has the effect of seriously harming the protected person's bodily integrity or the privacy of his private life. For example, we are talking about surgical operations.

FYI  

no one has the right to access medical information (including medical record) of the protected person, In order for someone to access it, the protected middle finger must consent to it or the protection litigation judge must authorize it.