[Mental incompetence and representation; a thematic evaluation of legislation]

To assess how the laws pertaining to the mentally incompetent and their guardians relate to each other and how these topics are handled in daily practice.

Structured interviews.

We administered a questionnaire to healthcare providers and patient guardians in four sectors: care for mentally disabled, nursing home care, psychiatry and intensive care. The topics discussed during the interviews were mental incompetence, advance directives, representation, resistance, and complaint and conflict resolution. For further exploration of the results, we presented these to focus groups in three sectors. We received written comments from several experts of the intensive care sector.

Most healthcare providers' initial assumption was that the assessment of mental competence should be more thorough when the treatment is more drastic. The healthcare providers were unenlightened on matters concerning the tasks and authority of patient guardians. This sometimes created tension when their opinions deviated from those of the guardians. It was notable that guardians of mentally incompetent patients in intensive care perceived themselves to be most informed. There is indeed frequent consultation with relatives or guardians in the intensive care unit; however, they are hardly ever asked to participate in decision making.

There is much ambiguousness on issues relating to mental incompetence and representation among healthcare providers. According to the legislation, reconstructing the will of the patient or client is paramount. Guardians should be involved in establishing mental incompetence and in decisions about treatment, care and research. Advance directives also play an important role. This study has resulted in recommendations on legislation, self-regulation and daily practice.