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

Verified 23 March 2022 - Directorate for Legal and Administrative Information (Prime Minister)

In principle, only the person under guardianship or curatorship (we speak of protected person) has access to his medical information. However, there are differences depending on the protection measure (guardianship or curatorship) put in place. Indeed, the guardian has more rights than the curator. Nevertheless, whatever the protective measure, if the state of health of the protected person allows it, he can make the medical decisions that concern him alone.

Supervision

Access to medical information

In principle, the medical record cannot be shared with the person under guardianship. It may, however, do so with the agreement or in the presence of its guardian. The latter, on the other hand, can access all the information on the protected person's health. Nevertheless, depending on his capacity of judgment, the adult under guardianship has the right to receive information on his medical situation.

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 protected person’s health information, the guardian must respect 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 their condition permits, the protected person will be able to make the medical decisions that concern them on his own.
  • If his condition does not allow it, it is either for the protection litigation judge or the 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 the information himself and consents alone to the medical procedures concerning him.

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 their condition permits, the protected person will be able to make the medical decisions that concern them on his own.
  • If her condition does not allow it, the protection litigation judge can decide that she has the assistance of 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.