What kind of health care decisions can someone else make if the patient is unable to make medical care decisions? How do they make the decisions?

If someone has a living will or an advance directive, without appointing someone as a health care agent, the treating doctors must follow the instructions in the document.  If the person made an "oral advance directive" by telling her doctor her decisions before she became unable to make further decisions, what she told the doctor controls what the doctor must do.  If someone has named a health care agent" in an advance directive, the law describes the agent's duty.  If there is no advance directive or any sort or an appointed agent, a "surrogate decision maker" as defined in the law can make decisions according to the duty the law gives the surrogate.  In an emergency, a health care provider is authorized by law to provide a limited amount and type of care. Finally, if a court appoints a guardian of the person, the law and the exact terms of the court order control. You can click each type of decision maker above to what the law says about what they can and must do..

1. Health Care Agent –
1. The agent must follow any specific terms the patient included in an oral or written advance directive
2. The agent must follow the wishes of the patient, considering:
1. the current diagnosis and prognosis with and without treatment
2. the patient's expressed preferences about provision, withholding, or withdrawal of the specific treatment or similar treatments
3. the patient's relevant religious and moral beliefs and personal values
4. the patient's behavior, attitudes, and past conduct with respect to the treatment at issue and medical treatment generally
5. the patient's past reactions to the provision, withholding, or withdrawal of similar treatment for another individual
6. the patient's expressed concerns about the effect on family or intimate friends if treatment were provided, withheld, or withdrawn
3. The decision may NOT be based on any preexisting, long term mental or physical disability OR the patient's economic disadvantage
4. Health care providers must inform the patient to the extent possible of the proposed treatment and that someone is authorized to make the decision
5. The agent may NOT authorize sterilization or treatment for a mental disorder.
6. If the wishes of the patient are unknown, the agent must base decisions on the best interest of the patient
1. This means that the benefits to the patient of treatment outweigh the burdens to the patient, taking into consideration;
1. the effect of treatment on the patient's physical, emotional, and cognitive functions
2. the degree of physical pain or discomfort caused to the patient by the provision, withholding, or withdrawal of the treatment
3. the patient's dignity, the degree to which the patient may be subjected to a condition of extreme humiliation and dependency by treatment
4. the effects on patient's life expectancy
5. the prognosis for recovery, with and without treatment
6. the risks, side effects, and benefits of the treatment
7. the religious beliefs and basic values of the patient, to the extent they help in determining her best interest.
2. Surrogate Decision Maker As Defined In Maryland Law
1. The surrogate must follow the wishes of the patient, considering:
1. the current diagnosis and prognosis with and without treatment
2. the expressed preferences of the patient about the provision, withholding, or withdrawal of the specific treatment or similar treatments
3. the patient's relevant religious and moral beliefs and personal values
4. the patient's behavior, attitudes, and past conduct with respect to the treatment at issue and medical treatment generally
5. the patient's reactions to the provision, withholding, or withdrawal of similar treatment for another individual
6. the patient's expressed concerns about the effect on family or intimate friends if treatment were provided, withheld, or withdrawn
2. The decision may NOT be based on any preexisting, long term mental or physical disability OR the patient's economic disadvantage
3. Health care providers must inform the patient to the extent possible of the proposed treatment and that someone is authorized to make the decision
4. The surrogate may NOT authorize sterilization or treatment for a mental disorder.
5. If the wishes of patient are unknown, the surrogate must base the decisions on the best interest of the patient, considering:
1. the benefits to the patient of treatment outweigh the burdens to the patient, taking into consideration;
2. the effect of treatment on the patient's physical, emotional, and cognitive functions
3. the degree of physical pain or discomfort caused to the patient by the provision, withholding, or withdrawal of the treatment
4. the patient's dignity and the degree to which the patient may be subjected to a condition of extreme humiliation and dependency by treatment
5. the effects on the patient's life expectancy
6. the prognosis for recovery, with and without treatment
7. the risks, side effects, and benefits of the treatment
8. the patient's religious beliefs and basic values to the extent they help in determining her best interest.
3. Health Care Provider
1. Can provide emergency treatment when no one who is authorized to make a decision is available.
2. Can refuse to prescribe or render medical treatment that the physician determines to be ethically inappropriate
3. Can refuse to prescribe or render "medically ineffective treatment" that, to a reasonable degree of medical certainty, will not prevent or reduce the deterioration of the patient's health or will not prevent the patient's impending death.
4. Guardian Of The Person –
   1. Must follow specific terms in the court’s guardianship order, which may include the power to decide about:
      1. Medical or other professional care, counselling, treatment, or service, including admission to a hospital or nursing home (or transfer from one facility to another)
      2. Withholding medical care or treatment
      3. Withdrawing medical care or treatment.
   2. The court must specifically authorize the guardian's decision where the medical procedure involves or could involve a substantial risk to the patient's life.

Last legal review 4/10/08 (PLL/M.A.J.)

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