Making Healthcare Decisions

Many people do not have either a living will or an advance directive. This article outlines some issues that go into making these important decisions.

Topics on this page

• Making Informed Decisions
• Competency of a Minor
• Treatment without Consent
• Surrogate Decision Maker
• Court-Appointed Guardians
• Disagreements

Making Informed Decisions

Competent adults have the right to make all decisions about their own medical care.

You have the right to make informed decisions. This means that you have the right to know what your diagnosis is, what your prognosis is, and what the risks and benefits of any specific course of treatment are.

You can make all decisions about the provision, withholding, or withdrawal of any specific medical treatment or any course of treatment. This means that you have the right to choose to have a type of medical treatment that is different than your doctor recommends, or to refuse treatment even if the doctor says you will become sicker or die without the treatment. The decision to refuse medical treatment is not the same as suicide even if the result of the decision will or may be death. The right to choose withdrawal of treatment includes decisions such as removing feeding tubes or ventilators.

A "competent individual" is an adult (at least 18 years old or is a minor with the capacity to consent (see below)) who has not been determined to be incapable of making an informed decision.

This means that the individual:

• Can understand the nature, extent, or probable consequences of the proposed treatment or course of treatment
• Can make a rational evaluation of the burdens, risks, and benefits of the treatment or course of treatment
• Is able to communicate a decision. The ability to communicate a decision is broader than the ability to talk. For example, someone who is able to write, or only to indicate "yes" or "no" to questions, is able to communicate a decision.

Medical Decisions from the Maryland Courts

Competency of a Minor

A minor has the same capacity as an adult to consent to medical or dental treatment if the minor meets one of these criteria:

• Is married;
• Has a child; or
• Is living separate from their parents or guardian and is self-supporting (regardless of source of income).

Whether a minor is living at home or not, they have the same capacity as an adult to consent to medical treatment or advice for:

• Drug abuse
• Alcoholism
• Venereal disease
• Pregnancy
• Contraception (other than sterilization)
• Treatment of injuries or gathering of evidence for alleged rape or sexual offense
• Initial medical screening and examination on/after admission into a detention center
• Treatment for prevention of HIV

Urgency - If, in the judgment of the attending physician, the life or health of the minor would be adversely affected by delaying treatment to obtain another individual's consent, then the minor has the same capacity as an adult to consent to medical treatment.

Treatment without Consent

Medical treatment requires consent be given first, unless:

• The medical treatment is of an "emergency medical nature,"
• No one authorized to give consent is available immediately, and
• The attending physician determines that:
  • There is a substantial risk of death or immediate and serious harm to the patient, and
  • With a reasonable degree of medical certainty, the life or health of the patient would be affected adversely by delaying treatment to obtain consent

  This means that unless these conditions exist, the patient is the only person who can give consent (or refuse consent) for medical care if the patient is able to make the decision. If the patient is not able to make the decision, Maryland law provides for decisions to be made according to the patient's written or oral living will, by an agent the patient selected, or by a "surrogate" (usually a family member). If there is no other way to make the decisions, a court can appoint a guardian to make the decisions.

  The treatment that can be given as emergency treatment is limited to what is necessary to remove the immediate emergency.

  Surrogate Decision Maker

  If there is no advance directive in which an agent has been appointed, a "surrogate decision maker," as defined in the law, can make decisions according to the duty the law gives the surrogate.

  The surrogate must follow the wishes of the patient. If the wishes of the patient are unknown or unclear, then the surrogate must make decisions based on the patient's best interest.

  In determining the patient's wishes, the surrogate should consider:

  • the current diagnosis and prognosis with and without treatment
  • the expressed preferences of the patient about the provision, withholding, or withdrawal of the specific treatment or similar treatments
  • the patient's relevant religious and moral beliefs and personal values
  • the patient's behavior, attitudes, and past conduct with respect to the treatment at issue and medical treatment generally
  • the patient's reactions to the provision, withholding, or withdrawal of similar treatment for another individual
  • the patient's expressed concerns about the effect on family or intimate friends if treatment were provided, withheld, or withdrawn

  The decision may NOT be based on any preexisting, long term mental or physical disability OR the patient's economic disadvantage.

  The surrogate decision maker must inform the patient, to the extent possible, of the proposed treatment and that someone is authorized to make the decision.

  The surrogate may NOT authorize sterilization or treatment for a mental disorder.

  Who can be a surrogate decision maker? Surrogate decision makers can be, in order by priority:

  1. a court appointed guardian
  2. the person's spouse or domestic partner (see Md. Code Ann. Health-General 6-101)
  3. an adult child of the person
  4. the person's parent
  5. an adult brother or sister of the patient
  6. A friend or other relative who
     • is competent, and
     • presents an affidavit to the attending physician stating that the person is a relative or close friend of the patient and the specific facts and circumstances that demonstrate regular contact sufficient to be familiar with patient's activities, health, and personal beliefs

  Note: Individuals in a certain class may be consulted to make a decision only if all individuals in the next higher class are unavailable.

  However, certain individuals cannot be a surrogate decision maker IF:

  • the individual is the subject of a protective order, or
  • the individual is the spouse of a patient and
    • the individual and patient have executed a separation agreement or
    • the individual or patient has filed an application for divorce.

    Court-Appointed Guardians

    If a court appoints a guardian of the person, the law and the exact terms of the court order control.

    Guardians must follow specific terms in the court’s guardianship order, which may include the power to decide about:

    • Medical or other professional care, counseling, treatment, or service, including admission to a hospital or nursing home (or transfer from one facility to another)
    • Withholding medical care or treatment
    • Withdrawing medical care or treatment.

    The court must specifically authorize the guardian's decision where the medical procedure involves or could involve a substantial risk to the patient's life.

    Disagreements

    If the patient made the decision, no one has the power to override it unless they petition a court for guardianship, the court decides that the patient is not able to make those decisions, and appoints a guardian to make medical decisions for the patient.

    If the decision was previously expressed by the patient in a living will, a written or oral advance directive, or in health care instructions to an agent appointed in an advance directive, no one can override it unless a court appoints a guardian.

    If the decision was made by a "surrogate" under the Maryland Health Care Decisions Act, no one can override it unless a court appoints a guardian.

    If two (or more) people with EQUAL decision making power as surrogates disagree, and the patient is in a hospital or related institution, the attending physician or someone qualified to be a surrogate must refer the case to the hospital or nursing home's "Patient Care Advisory Committee," and may act on the recommendation of the committee. That decision can only be overridden by a court appointed guardian, or by a court order.

    • A health care provider who believes that a decision to withhold or withdraw life-sustaining procedures is inconsistent with generally accepted standards of patient care can petition the health care facility's patient care advisory committee for advice OR
    • File a petition in court for a ruling on the decision.
    • A spouse, domestic partner, parent, adult child, grandchild, brother, sister, or other friend or relative who has qualified as a "surrogate" can file a petition in court for a ruling on the decision.
    PLL Contributors Last Updated: Tue, 01/30/2024 - 3:03 pm

    Is this legal advice?

    This site offers legal information, not legal advice. We make every effort to ensure the accuracy of the information and to clearly explain your options. However we do not provide legal advice - the application of the law to your individual circumstances. For legal advice, you should consult an attorney. The Maryland Thurgood Marshall State Law Library, a court-related agency of the Maryland Judiciary, sponsors this site. In the absence of file-specific attribution or copyright, the Maryland Thurgood Marshall State Law Library may hold the copyright to parts of this website. You are free to copy the information for your own use or for other non-commercial purposes with the following language “Source: Maryland's People’s Law Library – www.peoples-law.org. © Maryland Thurgood Marshall State Law Library, 2024.”

    ASK A MARYLAND
    LAW LIBRARIAN

    Submit a legal information question to the Thurgood Marshall State Law Library

    MARYLAND COURT
    HELP CENTER

    Free legal help with your civil matter.
    8:30 am - 8:00 pm, Mon - Fri