Patient incompetence and substitute decision-making: an analysis of the role of the health care professional in Dutch law

In any jurisdiction that takes patient autonomy and patient rights seriously, patient competence is a pivotal concept. Competence, which should be distinguished from criminal responsibility and legal capacity, can be defined as the ability to exercise rights, more in particular the ability to exercise one's right to give or refuse informed consent. It depends upon a patient's competence whether or not this patient has the final say in a health care decision and whether or not the patient can legitimately be subjected to compulsory interventions in that context. These possibly far reaching consequences explain why competence is the topic of a growing amount of legal regulation and why policy attempts are made at operationalising the concept in workable criteria. Although agreed upon criteria for competence do not exist, there is consensus about some preconditions of competence assessment. Two kinds of models of substitute decision-making for incompetent patients are available, i.e. best interests models and representational models. The Dutch Contract of medical treatment Act is treated as an example of the latter. It is shown that in the Dutch model, health care professionals are not at the mercy of patient representatives. On the contrary, health care professionals are supposed to judge their patients' subjective interests and may eventually overrule the representatives. A public debate ought to take place about the basis for this authority.