Oregon Law Review : Vol. 87 No. 2, p.353-400 : Illusory Consent: When an Incapacitated Patient Agrees to Treatment
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Date
2008
Authors
Vars, Fredrick E.
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
This Article will examine three hypothetical situations involving
health care decision making. The issue in each will be how to make a
medical decision when the patient does not refuse treatment but may
lack decision-making capacity. The Article will first discuss how
treatment decisions are actually being made, then examine how these
decisions are supposed to be made under current law. For
concreteness, the focus will be on Illinois law, but the implications
will be general. Next, the Article will propose and defend a new
model of decision making. The guiding principle is that treatment
decisions should correspond as closely as possible to patients’ true
preferences.
The specific issues addressed will be: when to test capacity, how to
test capacity, and what to do when capacity is lacking. To preview
the conclusions: (1) existing data and new theories are marshaled in
support of mandatory capacity assessment in various circumstances;
(2) standardized instruments rather than physician discretion should
be used to assess capacity; and (3) when capacity is lacking, the
patient does not resist treatment, and there is no advance directive, a
familial surrogate should make the medical decision because family
predicts patient preferences better than doctors.
The final Part before the Conclusion will consider possible
extensions of the model to instances in which no surrogate is
available or the patient refuses treatment.
Description
46 p.