Sterilization of mentally retarded individuals: informed consent in Guidelines in the Netherlands

The purpose of this paper is to describe and discuss the Guidelines of the Dutch Health Care Inspectorate' with respect to sterilization of mentally retarded individuals. In 1998, the Minister of Health had the 1989 Guidelines replaced by new ones. Two new laws were integrated into these new Guidelines: the Medical Treatment Agreement Act (hereinafter referred to as WGBO, being the Dutch abbreviation) and the Mentorship Act. The minister was also inspired to draw up new Guidelines by the revelation in the media of involuntary sterilizations still taking place in several European countries. She is adamant that the Guidelines should be a 'guarantee against involuntary sterilizations'. This issue requires special guidelines because of judicial questions connected with the sterilization of individuals who are more or less incapable of giving informed consent. Involuntary sterilization is a violation of basic human rights, such as the right of physical integrity and protection of privacy. The Guidelines describe how the decision-making process between doctor, patient, representatives, proxies or guardians should proceed and what to do when parties do not reach consensus. A distinction has been made between competent and incompetent patients. The Guidelines and the WGBO give answers to questions like the following: will the informed consent of representatives and proxies be sufficient to perform sterilization? Do doctors have to follow representatives and proxies? Can sterilization take place in spite of a patient's resistance? The Guidelines focus on the process of decision-making, in order to guarantee an appropriate procedure, with the best possible outcome for the mentally retarded individual. The Guidelines do not answer the question of what legitimate reasons doctors may have for performing sterilization on such a person. Given the substantial questions involved the Minister of Health has asked the Health Council to add possible grounds to the Guidelines that should be taken into account when deciding on sterilization.