Professional Role · Topic 9 of 21

Surrogate Decisions & Medically Inappropriate Treatment

Professional role · surrogates and futility

Surrogate Decisions & Medically Inappropriate Treatment

The surrogate decides as the patient would, or by best interest when wishes are unknown; requests for inappropriate treatment go through a fair process, not a unilateral 'futile' label.

The core rule

Surrogate order: guardian or agent, then family

A court-appointed guardian with health authority or the patient's chosen health care agent decides; otherwise state default-surrogate law usually ranks spouse or domestic partner, adult child, parent, sibling, then other relatives or a close friend.

01 · The ruleSurrogate order: guardian or agent, then family

02 · The ruleSubstituted judgment: decide as the patient would

The surrogate first uses substituted judgment — the decision the patient would make, based on the advance directive, documented preferences, values, life story and attitudes toward illness and procedures — not the surrogate's own wishes.

03 · Don't confuse'Potentially inappropriate', not 'futile'

Reserve 'futile' for interventions that cannot achieve their physiologic goal (do not provide them); call treatments with some chance of the patient's goal that clinicians judge unjustified 'potentially inappropriate', resolved by fair process.

The rules

Know these

Best interest when wishes are unknown must knowWhen the patient's wishes are unknown and cannot be inferred, or the patient never had capacity, use best interest: weigh suffering, likely benefit, resulting impairment and quality of life as the patient would experience it.

The surrogate has the patient's rightsTreat the authorized surrogate with the respect owed the patient, give the surrogate advice and support, and still involve the patient in decisions to the extent capacity allows.

Same-rank surrogates: seek consensusWhen several surrogates share the same priority (e.g., adult children), consensus is preferred; some states allow a majority decision, and persistent disagreement warrants counseling or an ethics consultation.

Consult ethics when the surrogate seems off-trackConsult ethics when no surrogate exists or who it is is disputed, disagreement persists, or a surrogate's decision is clearly not what the patient would choose, not in the patient's interest, or self-serving.

No duty to give medically inappropriate treatmentClinicians need not offer or provide interventions that cannot reasonably achieve the intended benefit or agreed goals; respecting autonomy does not mean giving whatever is requested.

Avoid labeling care 'futile' unilaterallyThere is no universal definition of futility — it depends on the patient's goals — and calling a treatment futile does not help when it may still achieve outcomes that matter to the patient.

Time pressure: oversight, then may declineWhen time does not allow the full conflict-resolution process and clinicians are highly certain the requested treatment is outside accepted practice, they should seek procedural oversight as feasible and need not provide it.

Do right now

In this order

First moves

Prevent conflict with early, proactive communication

→

Reassure that appropriate care and comfort continue

→

Consult ethics when the surrogate seems off-track

→

Fair process for intractable treatment conflicts

Why each step

Prevent conflict with early, proactive communicationPrevent intractable conflict with proactive communication about goals and prognosis and early involvement of expert consultants such as palliative care and ethics.

Reassure that appropriate care and comfort continueWhen declining a requested intervention, clarify goals and misunderstandings, reassure that all appropriate treatment and symptom management will continue, and negotiate a plan consistent with the patient's goals.

Fair process for intractable treatment conflictsIf conflict persists despite intensive communication, use a fair process: hospital (ethics committee) review, a search for a willing provider elsewhere, and external review; if transfer fails, the requested treatment need not be given.

Management

Orders

Unrepresented patient: committee decides, not ad hocFor a patient with no capacity, no applicable advance directive and no surrogate, assess capacity carefully and search diligently for a surrogate; then decide through an interprofessional committee and fair process, not ad hoc.

Substituted judgment or best interest?

Commonly confused

Question asked	What would the patient choose?
Used when	The patient's wishes are known or can be inferred
Based on	Advance directive, prior statements, values, life story
Rank	Used first

More detail

Reference

Show 5 reference facts

A surrogate may decline or stop any intervention on behalf of a patient who lacks capacity; there is no ethical difference between withholding and withdrawing treatment.

If ethics review cannot resolve a dispute over capacity, surrogate authority or treatment, the clinician or institution may seek court review, which is usually slower than an ethics committee.

A court-appointed guardian or conservator may hold full or limited authority; read the court order to learn the scope of health care decision-making power.

Institutions should offer advance care planning to patients at high risk of becoming unrepresented and apply a fair process to unrepresented patients even where state law permits less oversight.

A clinician who cannot in conscience follow a requested course should seek ethics consultation and may have a state-law duty to try to transfer the patient to another clinician or institution of the patient's choice.

Pearl

Ask the family what the patient would say, not what they want — and save 'futile' for what physiologically cannot work.

Sources · Merck Manual Professional — Consent and Surrogate Decision Making (Pope, Aug 2025) · AMA Code of Medical Ethics Opinion 2.1.2 — Decisions for Adult Patients Who Lack Capacity · Bosslet GT et al. An Official ATS/AACN/ACCP/ESICM/SCCM Policy Statement: Responding to Requests for Potentially Inappropriate Treatments in Intensive Care Units. Am J Respir Crit Care Med 2015;191:1318–1330 (abstract via Europe PMC) · AMA Code of Medical Ethics Opinion 5.5 — Medically Ineffective Interventions · Pope TM et al. Making Medical Treatment Decisions for Unrepresented Patients in the ICU. An Official ATS/AGS Policy Statement. Am J Respir Crit Care Med 2020;201:1182–1192 · AMA Code of Medical Ethics Opinion 5.3 — Withholding or Withdrawing Life-Sustaining Treatment · Merck Manual Professional — Capacity (Competence) and Incapacity (updated Jan 2026) · Starter sheet built from the verified AGACNP fact map (facts reviewed 2026-10-15).