Medical treatment and scientific research involving older persons who may or may not able to consent: a comparative analysis of the development of case law in the countries of the Council of Europe

The European Convention on Human Rights and Biomedicine, signed in 1997 in Oviedo, was promoted by the Council of Europe and ratified by 29 of its Member States. It is a relevant legal instrument to scrutinize medical treatments, and especially the giving of free and informed consent to medical treatments. Article 6.3 establishes the protection of persons who are not able to consent. In this case "a mental disability, a disease or for similar reasons, the [medical] intervention may only be carried out with the authorization of his or her representative or an authority or a person or body provided for by law." Older persons who suffer from irreversible, debilitating, or degenerative diseases, such as dementia, depression, cancer, Alzheimer's or Parkinson's, which can affect a patient's lucidity, are the intended beneficiaries of this regulation. From this perspective, the exercise of informed consent becomes a prime concern in light of their fundamental rights to dignity, health care, and access to justice. The ultimate goal is to prevent abuse and violence, especially when patients are forced into therapies or various forms of medical treatment