Incapacitated or temporarily incapacitated
The Medical Treatment Contracts Act (WGBO) stipulates that you as a patient are entitled to an explanation of your treatment and examinations by your care provider. This information will enable you to make a well-considered decision on whether you wish to go ahead with the treatment or examinations.
It is possible that during your hospital stay a situation may arise making you unable or temporarily unable to represent your own interests or to make decisions on the care/treatment that you require. This may be the case if you are incapacitated or temporarily incapacitated. The decisions and consent regarding your treatment/examinations that need to be taken at such a time will need to be made by a legal representative. The representative will look after your interests to the best of his/her abilities.
The following persons may act as your legal representative. The order in which they are listed below is determined by law:
- A trustee or mentor appointed by the court.
- An authorized representative appointed in writing by you as a patient (appointed when you still had the competency to express your own will).
- Spouse, registered partner, or other life companion.
- Parent, child, brother, or sister.
If the 1st or 2nd categories do not apply, your partner (as shown in the 3rd category) will be your legal representative. If your partner refuses to represent you or cannot do so, or if you do not have a partner, the legal representation will fall within category 4. There is no order of priority in category 4. These relatives may decide among themselves who will act as your legal representative in the event of your becoming incapacitated, unless this person does not wish to do so. If a mutual agreement cannot be reached, the care provider can decide who may act as your legal representative.
However, we recommend that you appoint a legal representative while you still have the competency to express your own will. This individual will act on your behalf in the event that you are incapacitated or temporarily incapacitated.
Children under the age of 12 will have a legal representative (generally a parent or guardian). The child’s interests are always paramount. This means that the care provider has the right to deny the representative from being present during the child’s treatment. The healthcare professional can also refuse to provide the representative with information or access to the child’s medical records.
The information given to children under the age of 12 must always be tailored to their level of understanding. Where possible, the child must give consent. For a mentally competent child aged between 12 and 16, the information will need to be provided to both the legal representative and the child, and their consent must be obtained prior to starting treatment.
The child’s wishes take precedence over those of the representative if the child insists on the treatment or if the treatment is deemed necessary to prevent serious harm to the child. Legal regulations stipulate that certain treatments may be given even if the representatives refuse to give consent. This will only be the case if the refusal by the representative could seriously affect the health of the child.
The Dutch Patients’ Rights Directive considers children over the age of 16 to be mentally competent (i.e. of age). This means that they can independently give consent for treatment and exercise their rights as a patient.