Surrogate Decision Making

When is Surrogate Decision Making Required?

Surrogate decision making is required when a medical decision needs to be made for a patient who is judged to be unable to give, or withhold, informed consent. Surrogate decision making is distinguished, therefore, from medical decision making without consent, which relates to compulsory psychiatric assessment or treatment for adults with mental disorders, and the involuntary detention and treatment of adults with communicable diseases that pose a risk to public health.

In numerous legal jurisdictions, decision-making competence acts as a threshold concept that preserves the right of self-determination. If adults are judged able to make an autonomous decision relating to their medical treatment, that decision must be respected, even if considered unwise. There is little academic consensus about the abilities that need to be demonstrated for an adult to be judged competent; however, the legal criteria for competence revolve primarily around a number of cognitive and communicative abilities. If a patient is, for example, unable to understand information relevant to the decision, to retain that information and weigh it to make a decision, or to communicate a choice, surrogate decision-making procedures will need to be invoked. Adopting a threshold for decision-making competence that is primarily cognitive in nature means that adults with a “mental disability” may require one or more medical decisions to be made on their behalf. This includes men and women with acute mental illness, dementia, intellectual disabilities, brain damage, or head injury or those who are unconscious, confused, or affected by fatigue, pain, or drugs.

Once a judgment of incompetence has been made, attention turns to how a surrogate decision should be made and who should make it. These [Page 1106]questions have shaped research into surrogate decision making, the majority of which lies at the intersection of law, ethics, and medical practice. Empirical studies exploring how surrogate decisions are made in practice have been a relatively recent development. This entry explores the ethical principles and regulatory procedures that have been developed for surrogate decision making for adults and highlights some problems that arise when invoking these principles and procedures in medical practice.

Ethical Principles for Surrogate Decision Making

Ethical and legal engagement with surrogate decision making has exposed three different principles.