Treatment Decisions when patients lack competence


There are different approaches to determining what is in a patient’s best interests, if he or she is not competent to express them for his or herself:

  • Substituted judgement
  • Medical Enduring Power of Attorney and Advanced directives
  • Best interest standard

In ICU, this situation is commonly encountered when considering withdrawal of treatment

  • “While intensive care treatment may be life-saving for patients with reversible critical illness, medical intervention can cause considerable suffering for patients and their families with little or no benefit. The withholding or withdrawing of specific treatments is appropriate in some circumstances” — from CICM Statement


  • when a person with knowledge of the patient’s wishes or desires makes a decision which he or she believes the patient would make in this situation if they were capable of doing so
  • the person making the decision is known as surrogate (or proxy) and is often someone close to the patient
  • examples: spouse, adult children, siblings, parents, or friend
  • may be appointed by courts (guardians) if there is disagreement between family and/or medical staff
  • surrogates and guardians are only able to consent to treatment but cannot refuse treatment (but can withhold consent)


  • a prior declaration of what the patient’s wishes are or would be in given situations
  • can be verbal or written

Medical Enduring Power of Attorney

  • most binding form of advanced directive
  • MEPoA assumes that the patient has told this person what their wishes are for different given eventualities and trusts them to make the right decision
  • MEPoA has the same legal standing as the patient (may consent and refuse treatment)

Written Advanced Directives

  • this includes refusal of treatment certificate
  • organ donor wishes on driver’s licence
  • more common are obscure forms of directive (paper in wallets, relatives produce which are signed by lawyers)
  • problems with these include:

-> how current they are -> specificity -> where and whom provided information about condition and treatment options


  • when a person makes a decision about a patients treatment they consider to be in the patient’s best interest
  • benefit versus burdens are considered
  • often done by medical staff in emergency situations
  • legally we are required to consider what the patient themselves might want
  • studies have shown that medical staff and surrogates have different approaches to measuring ‘best interests’ for unconscious patients

References and Links


Journal articles and textbooks

  • Eagle K, Ryan CJ. Potentially incapable patients objecting to treatment: doctors’ powers and duties. The Medical journal of Australia. 200(6):352-4. 2014. [pubmed] [free full text]
  • Stewart C, et al. The Australian Medico-Legal Handbook (1st edition), Elsevier,2007 [Google Books Preview]

FOAM and web resources

Chris is an Intensivist and ECMO specialist at the Alfred ICU in Melbourne. He is also a Clinical Adjunct Associate Professor at Monash University. He is a co-founder of the Australia and New Zealand Clinician Educator Network (ANZCEN) and is the Lead for the ANZCEN Clinician Educator Incubator programme. He is on the Board of Directors for the Intensive Care Foundation and is a First Part Examiner for the College of Intensive Care Medicine. He is an internationally recognised Clinician Educator with a passion for helping clinicians learn and for improving the clinical performance of individuals and collectives.

After finishing his medical degree at the University of Auckland, he continued post-graduate training in New Zealand as well as Australia’s Northern Territory, Perth and Melbourne. He has completed fellowship training in both intensive care medicine and emergency medicine, as well as post-graduate training in biochemistry, clinical toxicology, clinical epidemiology, and health professional education.

He is actively involved in in using translational simulation to improve patient care and the design of processes and systems at Alfred Health. He coordinates the Alfred ICU’s education and simulation programmes and runs the unit’s education website, INTENSIVE.  He created the ‘Critically Ill Airway’ course and teaches on numerous courses around the world. He is one of the founders of the FOAM movement (Free Open-Access Medical education) and is co-creator of litfl.com, the RAGE podcast, the Resuscitology course, and the SMACC conference.

His one great achievement is being the father of three amazing children.

On Twitter, he is @precordialthump.

| INTENSIVE | RAGE | Resuscitology | SMACC

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