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Decisions for Adult Patients Who Lack Capacity

Physicians should engage patients whose capacity is impaired in decisions involving their own care to the greatest extent possible.
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Code of Medical Ethics Opinion 2.1.2

Respect for patient autonomy is central to professional ethics and physicians should involve patients in health care decisions commensurate with the patient’s decision-making capacity. Even when a medical condition or disorder impairs a patient’s decision-making capacity, the patient may still be able to participate in some aspects of decision making. Physicians should engage patients whose capacity is impaired in decisions involving their own care to the greatest extent possible, including when the patient has previously designated a surrogate to make decisions on his or her behalf.

When a patient lacks decision-making capacity, the physician has an ethical responsibility to:

(a) Identify an appropriate surrogate to make decisions on the patient’s behalf:

  1. The person the patient designated as surrogate through a durable power of attorney for health care or other mechanism
  2. A family member or other intimate associate, in keeping with applicable law and policy if the patient has not previously designated a surrogate

(b) Recognize that the patient’s surrogate is entitled to the same respect as the patient.

(c) Provide advice, guidance, and support to the surrogate. 

(d) Assist the surrogate to make decisions in keeping with the standard of substituted judgment, basing decisions on:

  1. The patient’s preferences (if any) as expressed in an advance directive or as documented in the medical record.
  2. The patient’s views about life and how it should be lived. 
  3. How the patient constructed his or her life story.
  4. The patient’s attitudes toward sickness, suffering, and certain medical procedures.

(e) Assist the surrogate to make decisions in keeping with the best interest standard when the patient’s preferences and values are not known and cannot reasonably be inferred, such as when the patient has not previously expressed preferences or has never had decision-making capacity. Best interest decisions should be based on:

  1. The pain and suffering associated with the intervention
  2. The degree of and potential for benefit
  3. Impairments that may result from the intervention
  4. Quality of life as experienced by the patient

(f) Consult an ethics committee or other institutional resource when:

  1. No surrogate is available or there is ongoing disagreement about who is the appropriate surrogate.
  2. Ongoing disagreement about a treatment decision cannot be resolved.
  3. The physician judges that the surrogate’s decision:

          a. Is clearly not what the patient would have decided when the patient’s preferences are known or can be inferred

          b. Could not reasonably be judged to be in the patient’s best interest

          c. Primarily serves the interests of the surrogate or other third party rather than the patient

AMA Principles of Medical Ethics: I, III, VIII

Informed Consent and Decision Making CME Course

This e-learning module will help physicians identify the standard process of informed consent and how to handle situations when patients cannot give informed consent.

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