What if you are incapacitated?
Under the Medical Treatment Contracts Act, you are entitled to be informed about your treatment or examination by your healthcare-provider. You can use this information to make a well-considered decision about whether or not you wish to proceed with the treatment or examination.
However, a situation may arise during your stay in hospital that results in your being unable (either temporarily or permanently) to safeguard your interests or to take decisions on the care or treatment that you require. If this happens, you are said to be ‘incapacitated’. A legal representative will then need to take the necessary decisions and give the necessary consent about your treatment or examination. Your legal representative looks after your interests to the best of his or her abilities.
The following persons may act as your legal representative. The order in which they are listed below is laid down in the law:
- a trustee or mentor appointed by the court;
- an authorised representative appointed by you in writing (at a time when you were still able to express your will);
- your spouse, registered partner or other life companion;
- your parent, child, brother or sister.
If the 1st or 2nd categories do not apply, your partner (i.e. the 3rd category) will be your legal representative. If your partner is unwilling or unable to represent you, or if you do not have a partner, your legal representative will come from the 4th category. There is no order of priority in the 4th category. Your relatives are free to decide among themselves who should act as your legal representative if you become or are incapacitated. If they are unable to reach agreement, the healthcare-provider is entitled to designate a legal representative for you.
We recommend that you designate a legal representative while you able to express your own will. This individual will act on your behalf if you are incapacitated.
Children aged under 12 will have a legal representative (generally a parent or guardian). The child’s interests are always paramount. This means that the healthcare-provider may refuse to allow the representative to be present during the child’s treatment. The healthcare-provider may also withhold information or refuse to give the representative access to the child’s medical records.
Information given to children aged under 12 must always be adapted to their intellectual capacities. Where possible, the child must give his or her consent. In the case of a child aged from 12 to 15 who is capable of giving his or her informed consent, information must be given to both the legal representative and the child, and the consent of both must be obtained before treatment starts.
If the child insists on being treated or if treatment is needed to prevent the child from suffering serious harm, the child’s wishes take precedence over those of the representative. Under Dutch law, certain forms of treatment may be given even if a child’s representatives refuse to give their consent. This applies only if the withholding of consent by the representative could seriously damage the child’s health.
Under Dutch law, children aged 16 and above are regarded as being capable of giving their informed consent (i.e. as being of age). This means that they can give their consent to treatment and exercise their rights as a patient, without having to be represented by another person.