Catholic University Law Review


Caitlin McClay


The right to refuse medical treatment is based on a competent persons due process rights guaranteed by the fifth amendment. Incompetent persons do not have the right to refuse medical treatment. Instead, a process called “substituted judgement” is used to determine what care they will receive. A family member will then make medical decisions on behalf of the incompetent person while they are unable. Disagreements between guardians or between guardians and physicians lead to a court deciding the proper medical treatment.

There two major challenges that arise with the substituted judgement process are that family members often do not know the wishes of the incompetent person and that there is no requirement for the family member to make decisions in accordance with those wishes. Advanced directives aim to solve this problem but have failed because they are hardly ever used or are too unclear to be helpful to the surrogate decision-maker. Most states and hospitals have a dispute resolution process that takes place within the hospital before turning to the court. The hospital’s dispute resolution is often ineffective because the surrogate decision maker lacks medical knowledge, does not understand the decision making process, or has come to distrust and resent the doctors and hospital. This Comment proposes that a mediator unaffiliated with the hospital would be more effective resolving disputes. A third-party mediator is able to remedy the power imbalances between the doctors and family, and is able to provide a neutral ground to discuss the treatment plan. Maximizing the effectiveness of dispute resolution will lead to better medical decision-making and ensure that the incompetent person’s best interest is cared for.