Illusory Consent: When an Incapacitated Patient Agrees to Treatment

55 Pages Posted: 17 Jul 2008

See all articles by Fredrick E. Vars

Fredrick E. Vars

University of Alabama - School of Law

Date Written: July 16, 2008


Medical treatment requires informed consent, which in turn requires decision making capacity. When a patient with questionable capacity does not resist treatment, these requirements are often neglected: treatment is administered with no assessment of capacity and no consideration of alternative decision making. A variety of ethical and legal forces contribute to this neglect. The practical effect is that patients are treated when, if they had capacity, they would refuse treatment. This subverts the dominant interest in health care decision making: patient autonomy.

After surveying current law and practice, this article addresses the following issues: (1) when to test patients for capacity; (2) how to test capacity; and (3) what to do when capacity is lacking. The guiding principle throughout is that treatment decisions should correspond as closely as possible to patients' true preferences. On the first question, existing data and new theory are marshaled in support of mandatory capacity assessment in various circumstances. Second, this article argues that standardized instruments rather than physician discretion should be used to assess capacity. Third, when capacity is lacking and the patient does not resist treatment, a familial surrogate should make the medical decision because family predict patient preferences better than doctors.

Keywords: health care decision-making, informed consent

JEL Classification: C11, I10, K13, K32

Suggested Citation

Vars, Fredrick E., Illusory Consent: When an Incapacitated Patient Agrees to Treatment (July 16, 2008). Oregon Law Review, Forthcoming; U of Alabama Public Law Research Paper No. 1161112. Available at SSRN:

Fredrick E. Vars (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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