Advance Treatment Directives and Autonomy for Incompetent Patients: An International Comparative Survey of Law and Practice, with Special Attention to the Netherlands

The subject of this book is the legal status and social practice of treatment, with special emphasis on the Netherlands. A treatment directive is a written document in which the author refuses treatment under specified conditions. Such a document is drafted when the author is still competent, to be implemented in the event he becomes incompetent. Legal recognition of treatment directives is a practical answer to the philosophical question whether incompetent people can retain some autonomy in the medical sphere, despite their being currently unable to give informed consent. An international comparative survey of the legal situation in several Western countries shows that in jurisdictions where the legal status of informed consent is strong, there is a greater chance to find provisions for the exercise of prospective autonomy. The Netherlands is among those countries where the instructions in a treatment directive are legally binding on doctors but, despite the strong legal status of these documents, no empirical evidence was available to test whether these documents work in practice. Based on telephone surveys of nursing home doctors, family doctors and notaries, this book seeks to fill this gap, answering the question: Do treatment directives work in the Netherlands? Two main results emerge from the research: a) the frequency of treatment directives in the Netherlands is low; b) the treatment directives that do exist probably have little effect on medical decision-making. These results seem mainly to reflect the passive approach of doctors, who do not promote the use of treatment directives among their patients and are not ready to accord binding force to these documents. This passive approach has not been corrected by concrete policy measures to complement the formal legislative recognition of treatment directives. These results lead to a more general reflection. Merely enacting a new substantive right will often not suffice to make a social practice effective. The new right will require various forms of support if it is to be expected that people will make use of it. This is particularly true in the case of the establishment of a new facility (here, the right to draft a treatment directive), where the success of the legislation largely depends on the actual use that potentially interested people make of the facility.