Topics on this page
- Making Informed Decisions
- Competency of a Minor
- Treatment without Consent
- Surrogate Decision Maker
- Court-Appointed Guardians
Competent adults have the right to make all decisions about their own medical care.
You have the right to make informed decisions. This means that you have the right to know what your diagnosis is, what your prognosis is, and what the risks and benefits of any specific course of treatment are.
You can make all decisions about the provision, withholding, or withdrawal of any specific medical treatment or any course of treatment. This means that you have the right to choose to have a type of medical treatment that is different than your doctor recommends, or to refuse treatment even if the doctor says you will become sicker or die without the treatment. The decision to refuse medical treatment is not the same as suicide even if the result of the decision will or may be death. The right to choose withdrawal of treatment includes decisions such as removing feeding tubes or ventilators.
A "competent adult" is one who:
- Can understand the nature, extent, or probable consequences of the proposed treatment or course of treatment
- Can make a rational evaluation of the burdens, risks, and benefits of the treatment or course of treatment
- Is able to communicate a decision. The ability to communicate a decision is broader than the ability to talk. Someone who is able to write, or only to indicate "yes" or "no" to questions, is able to communicate a decision.
A minor has the same capacity as an adult to consent to medical or dental treatment if the minor meets one of these criteria:
- Is married
- Has a child
- Is living separate from their parents or guardian
- Is self-supporting (regardless of source of income)
Whether a minor is living at home or not, they have the same capacity as an adult to consent to medical treatment or advice for:
- Drug abuse
- Venereal disease
- Contraception (other than sterilization)
- Treatment of injuries or gathering of evidence for alleged rape or sexual offense
- Treatment for prevention of HIV
Read the law: Md. Code, Health-General § 20-102
Medical treatment requires consent be given first, unless:
- The medical treatment is of an "emergency medical nature,"
- No one authorized to give consent is available immediately, and
- The attending physician determines that:
- There is a substantial risk of death or immediate and serious harm to the patient, and
- With a reasonable degree of medical certainty, the life or health of the patient would be affected adversely by delaying treatment to obtain consent
This means that unless these conditions exist, the patient is the only person who can give consent (or refuse consent) for medical care if the patient is able to make the decision. If the patient is not able to make the decision, Maryland law provides for decisions to be made according to the patient's written or oral living will, by an agent the patient selected, or by a "surrogate" (usually a family member). If there is no other way to make the decisions, a court can appoint a guardian to make the decisions.
The treatment that can be given as emergency treatment is limited to what is necessary to remove the immediate emergency.
If there is no advance directive in which an agent has been appointed, a "surrogate decision maker" as defined in the law can make decisions according to the duty the law gives the surrogate.
The surrogate must follow the wishes of the patient, considering:
- the current diagnosis and prognosis with and without treatment
- the expressed preferences of the patient about the provision, withholding, or withdrawal of the specific treatment or similar treatments
- the patient's relevant religious and moral beliefs and personal values
- the patient's behavior, attitudes, and past conduct with respect to the treatment at issue and medical treatment generally
- the patient's reactions to the provision, withholding, or withdrawal of similar treatment for another individual
- the patient's expressed concerns about the effect on family or intimate friends if treatment were provided, withheld, or withdrawn
The decision may NOT be based on any preexisting, long term mental or physical disability OR the patient's economic disadvantage.
The surrogate must inform the patient to the extent possible of the proposed treatment and that someone is authorized to make the decision.
The surrogate may NOT authorize sterilization or treatment for a mental disorder.
If the wishes of patient are unknown, the surrogate must base the decisions on the best interest of the patient, considering:
- if the benefits to the patient of treatment outweigh the burdens to the patient;
- the effect of treatment on the patient's physical, emotional, and cognitive functions
- the degree of physical pain or discomfort caused to the patient by the provision, withholding, or withdrawal of the treatment
- the patient's dignity and the degree to which the patient may be subjected to a condition of extreme humiliation and dependency by treatment
- the effects on the patient's life expectancy
- the prognosis for recovery, with and without treatment
- the risks, side effects, and benefits of the treatment
- the patient's religious beliefs and basic values to the extent they help in determining her best interest.
Surrogate Decision Makers can be:
- a court appointed guardian
- the person's spouse or domestic partner (see Md. Code Ann. Health-General 6-101)
- an adult child of the person
- the person's parent
- an adult brother or sister of the patient
A friend or other relative who
- is competent, and
- presents an affidavit to the attending physician stating:
- that the person is a relative or close friend of the patient and
- the specific facts and circumstances that demonstrate regular contact sufficient to be familiar with patient's activities, health, and personal beliefs
If a court appoints a guardian of the person, the law and the exact terms of the court order control.
Guardians must follow specific terms in the court’s guardianship order, which may include the power to decide about:
- Medical or other professional care, counseling, treatment, or service, including admission to a hospital or nursing home (or transfer from one facility to another)
- Withholding medical care or treatment
- Withdrawing medical care or treatment.
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.
This information is about the law in Maryland and may not be correct in other states.
- If the patient made the decision, no one has the power to override it unless they petition a court for guardianship, the court decides that the patient is not able to make those decisions, and appoints a guardian to make medical decisions for the patient.
- If the decision was previously expressed by the patient in a living will, a written or oral advance directive, or in health care instructions to an agent appointed in an advance directive, no one can override it unless a court appoints a guardian.
- If the decision was made by a "surrogate" under the Maryland Health Care Decisions Act, no one can override it unless a court appoints a guardian.
- If two (or more) people with EQUAL decision making power as surrogates disagree, the physician or someone qualified to be a surrogate must refer the case to the hospital or nursing home's "Patient Care Advisory Committee," and may act on the recommendation of the committee. That decision can only be overridden by a court appointed guardian, or by a court order.
- A health care provider who believes that a decision to withhold or withdraw life-sustaining procedures is inconsistent with generally accepted standards of patient care can petition the health care facility's patient care advisory committee for advice OR
- File a petition in court for a ruling on the decision.
- A spouse, domestic partner, parent, adult child, grandchild, brother, sister, or other friend or relative who has qualified as a "surrogate" can file a petition in court for a ruling on the decision.