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Consent and Surrogate Decision Making

by Charles Sabatino, JD

When immediate decisions are medically required, the doctrine of presumed consent applies (see Informed Consent). In other circumstances, consent must be obtained.

Children

For most nonemergency medical decisions affecting minors, medical care cannot proceed without a parent’s or guardian’s consent. The parent’s or guardian’s decision can be overridden only if a court determines that the decision constitutes neglect or abuse of the minor. In some states, minors can consent to certain medical treatments (eg, treatment of sexually transmitted diseases, prescriptions for birth control, abortion) without parental permission. Individual state law must be consulted.

Adults

When adult patients lack capacity to consent to or refuse medical treatment, health care practitioners must rely on an authorized surrogate for consent and decision making. All surrogates—whether appointed by the patient, by default pursuant to state law, or by the court—have an obligation to follow the expressed wishes of the patient and to act in the patient’s best interests, taking into account the patient’s personal values to the extent known.

If adult patients already have a court-appointed guardian with authority to make health care decisions, the guardian is the authorized surrogate. The guardianship order should be consulted to determine the extent of the guardian's health care decision-making authority. If patients who lack capacity have a durable power of attorney for health care, the agent or proxy appointed by that document is authorized to make health care decisions within the scope of authority granted by the document. Generally, specific instructions that are given in a living will, health care declaration, or other advance directive executed by patients while capacitated can be relied on to the extent that the document clarifies or explains the patient's wishes.

If the decision of an authorized agent or proxy seems to conflict directly with instructions in a living will or other clear instructions given by the patient, the outcome depends on the scope of discretion given to the agent or proxy. Normally, the durable power of attorney for health care confers broad decision-making discretion on the agent so that instructions serve as guidance, not mandates. Nevertheless, the health care practitioner should determine whether the document gives the agent broad discretion beyond the written instructions or limits the agent to the written instructions. Legal advice may be needed.

If patients have no authorized surrogate, health care practitioners usually rely on the next of kin or even a close friend. However, the exact scope of authority and the priority of permissible surrogates vary by state. In states where default surrogate decision makers are authorized, the typical order of priority is a spouse (or domestic partner in jurisdictions that recognize this status), an adult child, a parent, a sibling, and then possibly other relatives or a close friend. If more than one person has the same priority (eg, several adult children), consensus is preferred, but some states allow health care practitioners to rely on a majority decision.

If a patient’s decision-making capacity, a surrogate's authority, or the ethical or legal appropriateness of a particular treatment decision is disputed, consultation with an institutional ethics committee or similar body is advisable. If agreement on an ethically and legally sound resolution cannot be reached, health care practitioners or their institution may need to request court review. Many institutions make the ethics committee available on short notice; judicial review is typically more time-consuming.

Scope

Patient choice is not limitless. For example, health care practitioners are not required to provide treatments that are medically or ethically inappropriate, such as those that are against generally accepted health care standards. However, sometimes there are legitimate differences of opinion regarding what is inappropriate. Labeling a treatment as "futile" does not generally help if said treatment may affect outcomes other than mortality or morbidity that are important to the patient. Physicians do not have to act against their conscience but if they cannot comply with a requested course of action, consultation with an ethics committee is advisable. They may also have a responsibility to try to transfer a patient to another physician or institution of the patient’s choice.

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