The Effect of Statutory Limitations on the Authority of Substitute Decision Makers on the Care of Patients in the Intensive Care Unit: Case Examples and Review of State Laws Affecting Withdrawing or Withholding Life-Sustaining Treatment

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While the ethics and critical care literature is replete with discussion of medical futility and the ethics of end-of-life care decisions in the intensive care unit, little attention is paid to the effect of statutory limitations on the authority of substitute decision makers during the course of treatment of patients in the critical care setting. In many jurisdictions, a clear distinction is made between the authority of a health care power of attorney, who is legally designated by a competent adult to make decisions regarding withholding or withdrawing life-sustaining treatment, and of next-of-kin, who are limited in this regard. However, next-of-kin are often relied upon to consent to necessary procedures to advance a patient's medical care. When conflicts arise between critical care physicians and family members regarding projected patient outcome and functional status, these statutory limitations on decision-making authority by next of kin can cause paralysis in the medical care of severely ill patients, leading to practical and ethical impasses. In this article, we will provide case examples of how statutory limitations on substitute decision making authority for next of kin can impede the care of patients. We will also review the varying jurisdictional limitations on the authority of substitute decision makers and explore their implications for patient care in the critical care setting. Finally, we will review possible ethical and legal solutions to resolve these impasses.

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