Limits of guardian treatment refusal: a reasonableness standard

Abstract

The debate concerning the legal and ethical bases of guardian refusal of medical treatment on behalf of incompetent patients often ignores critical distinctions among types of patients and guardians. For example, patients who have expressed preferences regarding treatment while competent are distinguishable from patients who have always lacked the competency requisite to expressing a treatment preference. "Bonded guardians," whose relationship with the patient preexisted guardianship, should have a different role in the decision-making process than "non-bonded guardians," who were strangers to the patient prior to the guardian-ward relationship. This Article proposes criteria for guardian treatment refusal on behalf of incompetent patients. Under the model for guardian decision making presented here, bonded guardians should be preferred over non-bonded guardians, and bonded guardians should be allowed discretion to make treatment choices, limited only by a standard of reasonableness policed by the courts. The Author presents legal and ethical justifications for the bonded guardian's heightened role. Finally, he considers the proper roles of health professionals, hospital ethics committees, and judges in the decision-making process.