Recommendations for Caring for Those Who Are Incapacitated and Unrepresented

Despite the challenge of decision making for unrepresented patients, few laws or professional organization policy statements offer a solution.

Recommendations for how clinicians should handle patients who are incapacitated and without a representative were recently published in the AMA Journal of Ethics.

Patients who are incapacitated cannot consent to medical treatment, and if a representative is unavailable, no one can consent on their behalf. Here are 5 things clinicians should know when they are caring for unrepresented patients. The first recommendation is to remember that these patients are vulnerable and do not have someone to advocate for them.

This can lead to 3 types of risks: overtreatment, undertreatment, and delayed treatment. Overtreatment involves the maximum medical intervention possible, undertreatment involves withholding or withdrawing treatments, and delayed treatment involves waiting until a medical emergency has arisen to consent to treat.

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The second recommendation is to confirm that the patient is actually incapacitated, and if at all possible, attempt to engage the patient in health care decisions. The third recommendation is to confirm that the patient does not have an available representative. It is important to check that the patient does not have written directives, to check with social workers for potential surrogates, and to widen the view as to who can be included in decision-making processes.

The fourth recommendation is to consult with state laws for guidelines in handling medical care. Hospitals often have policies in regards to routine and medical treatments, as well as life-sustaining medical treatments that would provide guidelines for medical care. The fifth recommendation is consulting a state-appointed guardian or conservator when other options are not available, but this route can be ineffective, expensive, and a slow process.

The researcher concluded “[t]his article helps fill this void by describing the top 5 things clinicians should know when they are caring for unrepresented patients: (1) realize that these patients are highly vulnerable; (2) confirm that the patient is incapacitated; (3) confirm that the patient is unrepresented; (4) appreciate variability among state law decision-making processes for unrepresented patients; (5) use guardianship only as a last resort.”


Pope TM. Five things clinicians should know when caring for unrepresented patients. AMA J Ethics. 2019;21(7):e582-586.

This article originally appeared on Medical Bag