special subjects
Consent and Surrogate Decision Making
Adults
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 (typically part of an 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 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. 