Healthcare Decision Making – Does Majority Rule?
Co-authored by Kayleen Piszcek and Peg McKeon, BSN, Esq.
As physicians, it is not uncommon to have a patient unable to make medical decision for them with a family unable to agree on treatment decisions, for their loved one. While health problems are always difficult for patients and their families, the absence of a designated decision maker or clear advanced directives regarding treatment can make the situation even more stressful and emotionally charged.
When there is no designated healthcare decision maker, who can the physician look to for care decisions? What if there is more than one person asserting decision making authority? Does majority rule?
Pennsylvania law states:
“…In the event that an incapacitated individual failed to designate a healthcare representative, the state will recognize members from the following classes as eligible healthcare representatives: The listing of these classes is in priority order, therefore the healthcare representative of a higher priority will rule over healthcare representatives from a lower priority class.
The order the classes are: spouse, adult children, parent, adult siblings, adult grandchildren, an adult who has knowledge of the individual’s preferences and values. “
Pa.C.S.A. §5461, Decisions by Healthcare Representative
While this rule seems simple and direct, what if members of the class of representatives don’t agree?
The law has built in guidelines for healthcare practitioners. Specifically, the statute states that should the members of the class of healthcare providers be evenly divided concerning the healthcare decisions, no decision shall be deemed made until the parties resolve their disagreement. Basically the decision makers and asked to put their differences aside and come to a consensus regarding treatment that is in keeping with the wishes of the patient and in his/her best interest.
Interestingly, the law has a different approach when members of the class are not evenly divided. In the event that there is a disagreement among members of the same class of healthcare representatives, the statute states that the physician MAY rely on the decision of a Majority of the members of that class, who have communicated their views to the attending physician or healthcare provider.
While state law gives latitude to allow a physician to comply with the decision of the majority, it does not mandate it. If the physician, in their clinical judgment, believes that the majority decision is not in the best interest of the patient, they are not required to follow it.
Similarly, the American Medical Association E-8.081 Surrogate Decision Making Policy, specifically states,
“… In cases where there is a dispute among family members, physicians should work to resolve the conflict through mediation. Physicians or an ethics committee should try to uncover the reasons that underlie the disagreement and present information that will facilitate decision-making. When a physician believes that a decision is clearly not what the patient would have decided, could not be reasonably judged to be within the patient’s best interests, or primarily serves the interest of a surrogate or a third party, an ethics committee should be consulted before requesting court intervention.”
The AMA policy treats all healthcare decision making disputes the same, regardless of the number of decision makers from a class that support a decision. The AMA advises the physician to seek the guidance of an Ethics Committee before acting and possibly court action to support the decision.
In Pennsylvania, if even numbers of healthcare decision makers of the same class do not agree on a course of action, the physician cannot choose to follow one person’s directions over another. If there is a dispute about a treatment decision, then the physician may follow the majority decision of the class members.
Overall, it still comes down to a physician, exercising his/her professional and ethical judgment, to follow a course of treatment, which is in the best interest of the patient.
Questions and Answers
Healthcare Decision Making – Does Majority Rule? Questions and Answers