Abstract
Mrs. Jaspers is 92 years old, she has been a widow for 30 years and has lost all contact with her children and grandchildren. She lives by herself in “a beautiful big house with a beautiful garden”, as she says. She receives help from the home care, the district nurse and meals-on-wheels, and from a niece who comes by once in a while to take care of her laundry. About ten years ago Mrs. Jaspers had breast cancer, which was treated successfully. Due to a neurological condition she can only walk with a walking-aid, but apart from that she is physically healthy.
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On a previous occasion Mrs. Jaspers’ niece, her only close relative, had indicated that she did not want to be involved in decision-making any further.
From here on, I will take ‘risk’ to refer to both the probability that certain harm will occur and the severity and irreversibility of that harm.
The same thing shows from the anecdotes I was told by various professionals about patients who had refused treatment or had gone home against their advice with serious or even fatal consequences and whose wishes had been respected despite the risks. The primary reason given for respecting these patients’ wishes despite the foreseeable serious consequences was that they were not considered to be demented, mentally impaired or otherwise seriously flawed in their decision-making.
In the whole observation period the term ‘wilsonbekwaamheid’ (Dutch for incompetence’) came up spontaneously only three times: it was mentioned by the supervisor in the case of Mrs. Jaspers and it came up once when a patient refused dialysis and the psychiatrist was asked to assess the patient’s competence and once in an entry on a patient’s medical chart: “DNR code set in consultation with husband. Assessed patient as incompetent (very demented lady)”
This might be different in psychiatry or nursing home care, for example.
As Berghmans has rightly noted, the concept of competence as it is used in Dutch medical law is inconsistent and little elaborated (Berghmans 2000, 28–30).
Buchanan and Brock 1990, Brock 1991, Wicclair 1991, 1999, Skene 1991, Wilks 1997, 1999, Cale 1999.
See Chapter 2.5.
Buchanan and Brock also appeal to this norm when they state that it is important to asses whether the patient makes a choice that “reasonably conforms to his underlying and enduring aims and values” (1990, 56).
This conclusion clarifies the debate about the phenomenon of asymmetrical competence; while it seems right that competence in the capability-sense is symmetrical, competence in the authority-sense does not have to be so.
As she said in a conversation with me: “I do not like to be told what to do. It is my body, I have my own opinions and I speak my own mind. If they want something from me, I just say ‘no’. But they can’t have that, they want me to do what they want. But I have my own affairs. They can’t stand it that I think differently from them, but that is allowed isn’t it? I only want to be left alone.” Even though much of the rest of her story was confused and the things she accused ‘them’ of forcing her to do were somewhat bizarre, I felt these words did express something fundamental.
It can be argued that she trivialized the risks because she had forgotten that she could not cook and clean for herself anymore, and because she lacked the capacities to really understand, appreciate and remember the fact that if she would fall, this could result in a broken hip. The point is that such deficiencies in understanding, appreciating and remembering are difficult to pinpoint by way of an objective test.
A risk in using a risk-related standard of competence is that treatments proposed by physicians will automatically be considered to have a favourable risk/benefit ratio. Consequently, consent to such proposals may be felt to require only minimal levels of competence. This may lead to the idea that as long as the patient consents he is competent, and thus to a neglect of the issue of incompetent consent (Cf. Berghmans 2000).
Commission on the Acceptability of Life-ending actions, a commission of the Dutch Medical Association.
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© 2002 Springer Science+Business Media Dordrecht
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Schermer, M. (2002). Who Should Decide for Mrs. Jaspers?. In: The Different Faces of Autonomy. Library of Ethics and Applied Philosophy, vol 13. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9972-6_7
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DOI: https://doi.org/10.1007/978-94-015-9972-6_7
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