Medical Informed Consent > Substituted Consent

Substituted Consent

When a patient lacks the ability to understand the risks and benefits of care; and, therefore, is incapable of making an informed decision to give consent, substitute judgment should be sought from a person recognized as legally authorized to consent. Each state by statute sets forth the order of next of kin who may give substituted consent; however, if the patient has signed a health care power of attorney designating someone else to consent, that person becomes the appropriate person from whom to obtain consent. If there is no Health Care Power of Attorney and no next of kin available, then, a court order to allow treatment should then generally be obtained. If there are multiple persons who may consent, then consent must come from the majority of those decision-makers on stand with equal decision-making authority (example - 5 siblings who are appropriate next of kin to provide substituted consent, then at least 3 must agree to consent to care). In the event that decisions are evenly split, a court order should be sought.

In making decisions regarding a patient's care, the court takes into account a number of factors, including whether the patient may become capable of making an informed decision within the time required. Also, the court may not allow treatment when it is apparent that the treatment is opposed to the patient's religious or other beliefs unless withholding care may lead to death.


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