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Consent and Surrogate Decision Making


Thaddeus Mason Pope

, JD, PhD, Mitchell Hamline School of Law

Reviewed/Revised Oct 2023


In most states, children below the age of 18 years do not have the legal capacity Legal capacity Historically, “incapacity” was considered primarily a clinical finding, and “incompetency” was considered a legal finding. That distinction, at least in terminology, is no longer firmly recognized... read more to give medical consent. Therefore, 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 child. There are two main exceptions. First, emancipated minors can consent to all medical treatments on their own behalf. Second, in most states, minors can consent to certain medical treatments (eg, treatment of sexually transmitted infections, prescriptions for birth control, abortion, treatment of drug and substance use, mental health treatment) without parental permission. Individual state law must be consulted.


When adult patients lack capacity to consent to or refuse medical treatment, health care professionals 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, goals of care, and wishes, to the extent known.

If adult patients already have a court-appointed guardian or conservator (both court-appointed surrogates) with authority to make health care decisions, that court-appointed surrogate is the authorized surrogate. The court order should be consulted to determine the extent of the surrogate's health care decision-making authority. Regardless of a surrogate's scope of authority, the surrogate should include the patient in decision-making as much as possible.

If patients who lack capacity have a durable power of attorney for health care Durable power of attorney for health care Advance directives are legal documents that extend a person's control over health care decisions in the event that the person becomes incapacitated. They are called advance directives because... read more (typically part of an advance directive Advance Directives Advance directives are legal documents that extend a person's control over health care decisions in the event that the person becomes incapacitated. They are called advance directives because... read more ), 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 should 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 Living will Advance directives are legal documents that extend a person's control over health care decisions in the event that the person becomes incapacitated. They are called advance directives because... read more 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 the patient's instructions serve as guidance, not mandates. Nevertheless, the health care professional 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 neither a court-appointed surrogate (guardian or conservator) nor a self-appointed surrogate (agent or proxy), then health care professionals usually rely on the next of kin or even a close friend as the default surrogate decision maker. Most states authorize default surrogate decision makers; however, the exact scope of authority and the priority of permissible surrogates vary by state. Their typical order of priority is a spouse or domestic partner, 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 professionals to rely on a majority decision. However, dissension among authorized decision-makers merits further counseling or consultation with an institutional ethics committee or similar resource.

Such consultation is also advisable if a patient’s decision-making capacity, a surrogate's authority, or the ethical or legal appropriateness of a particular treatment decision is disputed or uncertain. If agreement on an ethically and legally sound resolution cannot be reached, health care professionals 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 of patient choice

Patient choice is not limitless. For example, health care professionals 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 (1 Reference When immediate decisions are medically required, the patient is incapacitated, and an authorized surrogate is not immediately available, the doctrine of presumed consent applies. In other circumstances... read more ). Physicians do not have to act against their conscience or professional norms. But if they cannot comply with a requested course of action, consultation with an ethics committee is advisable. They may also have a responsibility under state law to try to transfer a patient to another physician or institution of the patient’s choice.


  • 1. Bosslet GT, Pope TM, Rubenfeld GD, et al: An Official ATS/AACN/ACCP/ESICM/SCCM Policy Statement: Responding to Requests for Potentially Inappropriate Treatments in Intensive Care Units. Am J Respir Crit Care Med 191(11):1318-1330, 2015. doi:10.1164/rccm.201505-0924ST

NOTE: This is the Professional Version. CONSUMERS: View Consumer Version
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