In this case, the law on Patients’ Rights distinguishes two categories of patients who can be represented :
· underage patients (patients younger than 18) who, according to the civil code, are legally incapacitated.
· of age patients who, according to the healthcare practitioner, are de facto not capable to express their will (e.g. a person who is in a coma).
Who can exercise the rights of the patient who is not capable to do so ?
If the patient is a minor, the patient's rights are exercised by the parents or guardian.
If the healthcare practitioner deems the minor to be able to reasonably assess his/her best interests, then (s)he can exercise all or part of his/her rights.
If the adult patient is, according to the healthcare practitioner, de facto not capable to exercise his/her rights, the representative designated by the patient exercises the patient’s rights. The patient can designate this person beforehand through a written mandate, dated and signed by both parties.
If the patient has not designated any representative or if the person designated does not show up, this patient’s rights are then exercised by the administrator of this person. The administrator of the person is designated by the Justice of peace and acts as far and as long as the patient is not capable of exercising his patient’s rights himself/herself.
If the patient has not designated any representative or if the person designated does not show up, and if no administrator of the person has been authorized, the patient’s rights are exercised in substitute order by the spouse or partner living together with the patient, the of age child, a parent, an of age sibling or a healthcare practitioner.
In case of conflict between the different representatives of the same level (e.g. several children), the healthcare practitioner looks after the patient’s interests in a multidisciplinary consultation.
However, the representative’s authority is limited :
· The patient is involved in exercising his/her rights as much as possible and in proportion to his/her capacity to understand.
· The healthcare practitioner can refuse the representative access to the health records with a view to protecting the patient’s privacy. In such a case only a healthcare practitioner nominated by the representative can then peruse the health records or obtain a copy of them.
· If, in the case of an emergency, the will of the patient and that of the representative are unclear, the healthcare practitioner acts as far as possible in the best interests of the patient's health.
· The healthcare practitioner can, in a multidisciplinary consultation, depart from the decision taken by the patient’s representative if this decision threatens the patient’s life or if it seriously affects his/her health (e.g. in case of refusal of a life supporting treatment).
· The representative can never go counter to a preceding living will of the patient concerning a specific intervention.