Protection of the elderly patient and preservation of decision-making autonomy at the end of life in Belgian law

Abstract

Context

In Belgian law, medical decisions are placed under the banner of the patient's self-determination, expressed, if necessary, in the form of binding advance directives or conveyed by a representative – freely chosen, or designated by the law or the judge – who has decision-making powers.

Methodology

The way in which the law understands reality differs from that of other disciplines, including the humanities and social sciences. For this subject, reality is studied through the development of rules (issues, content, spirit), but also through their practical application, especially in the case of litigation, through the study of court decisions that may be handed down. This method is used here in relation to end of life.

Results/discussion

The patient's decision-making autonomy is the cornerstone of Belgian medical law, and it remains – simply exercised in a different way – when patients are no longer able to exercise their rights themselves. Belgian law provides for (i) an absolute right of an adult patient to refuse any treatment, including in the form of advance directives; (ii) the right to appoint a health proxy whose decision will be binding both on (other) family members and on the doctor; (iii) and, failing that, a "cascade" mechanism designating in any event a person empowered to exercise the rights of a patient who is incapable of doing so, and giving the immediate family a decision-making role rather than a merely advisory one, with a hierarchy among family members (priority being given to the spouse, whether married or not).

Conclusion/outlook

In medical matters, and especially at the end of life, the crucial point which is illustrated by the legal framework is probably the decision-making model itself. The law should suggest a model which, in this field, is as much societal (and ethical) as strictly legal. In this respect, the scheme set up in Belgian law has the salutary effect to adequately meet the needs of healthcare practice, and the legitimate aspirations of citizens. By placing the centre of gravity of medical decisions on the side of the patient and not the doctor, including at the end of life, it is fundamentally different from a consultation scheme, which results in a decision that is certainly concerted, but remains medical.