Oregon Law Review : Vol. 87 No. 2, p.353-400 : Illusory Consent: When an Incapacitated Patient Agrees to Treatment

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.