Law and Court Decision Making

The law presumes that medical decision making will take place in the clinical setting without judicial participation. Medical decision making is ordinarily a private matter between the physician and the patient and, in some cases, the patient's family. There is no general legal requirement that medical decision making be judicially supervised.

One reason is practical: If there were such a requirement, both the courts and medical practice would come to a grinding halt. Another reason is jurisprudential: The legal system in the United States is adversarial, which means that first there must be a controversy before the participation of courts can occur, and one party to that controversy must seek the involvement of the judicial system. In practice, the vast range of medical decision-making matters do not involve disputes—or at least not irresolvable ones. Only in the most unusual cases are the offices of the judicial branch of government sought.

The most common situations in which recourse to the courts is sought in medical decision making are those involving the questions of whether a patient lacks decision-making capacity and, if so, who has the authority to make decisions for that person; whether a surrogate for a patient who lacks decision-making capacity is making an appropriate decision; and when the decisions that parents make for their children are not in the child's best interests. Other less common situations are instances in which patients or surrogates seek to do something very much out of the ordinary, such as the use of one child to benefit another (e.g., the transplantation of a kidney from one sibling to another) or the sterilization of persons lacking decision-making capacity.