Document Type

Working Paper

Publication Date

7-17-2008

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Experimental & Empirical Studies eJournals; Law School Research Papers - Legal Studies; Financial Planning Research Network; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; ERN Subject Matter eJournals; FinPlanRN Subject Matter eJournals; Health Law eJournals

Abstract

Medical treatment requires informed consent which in turn requires decision making capacity When a patient with questionable capacity does not resist treatment these requirements are often neglected treatment is administered with no assessment of capacity and no consideration of alternative decision making A variety of ethical and legal forces contribute to this neglect The practical effect is that patients are treated when if they had capacity they would refuse treatment This subverts the dominant interest in health care decision making patient autonomy After surveying current law and practice this article addresses the following issues 1 when to test patients for capacity 2 how to test capacity and 3 what to do when capacity is lacking The guiding principle throughout is that treatment decisions should correspond as closely as possible to patients true preferences On the first question existing data and new theory are marshaled in support of mandatory capacity assessment in various circumstances Second this article argues that standardized instruments rather than physician discretion should be used to assess capacity Third when capacity is lacking and the patient does not resist treatment a familial surrogate should make the medical decision because family predict patient preferences better than doctors

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