A person who can make and communicate a health care decision generally decides whether to accept or refuse proposed treatment. When capacity is absent or disputed, the analysis shifts to the governing document, the authorized decision-maker, the treatment at issue, any emergency, and the patient's known instructions.

Treatment refusal, informed consent, substitute decision-making, and a natural-death decision are related but separate questions.

Cruzan distinguishes a capable patient from a surrogate decision

In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), the United States Supreme Court recognized the liberty interest of a person with capacity in refusing unwanted medical treatment. The case itself concerned an incapacitated patient, a request to withdraw artificial nutrition and hydration, and Missouri's requirement for clear and convincing evidence of the patient's wishes.

Cruzan therefore should not be reduced to either “a family member may always refuse for the patient” or “a provider may never proceed without the patient's present consent.” Capacity, proof of the patient's wishes, state law, emergency circumstances, and the requested treatment can change the analysis.

North Carolina informed-consent law starts with capacity

G.S. 90-21.13 addresses informed consent to health care treatment or a procedure. It states that consent meeting the statutory standards is valid when given by a patient or other authorized person who, under the surrounding circumstances, has capacity to make and communicate health care decisions.

Capacity is not the same as agreeing with a recommendation. The record should identify the decision presented, information communicated, questions asked, responses given, clinician making the assessment, timing, condition, medication or communication barrier, and any later change. This article does not provide a clinical capacity assessment.

Use the statutory order when the patient cannot decide or communicate

For a patient who is comatose or otherwise lacks capacity, G.S. 90-21.13(c) lists people authorized to consent in an order that begins with a court-appointed guardian of the person or general guardian, subject to the statute's treatment of a valid health care agent. It then addresses a health care agent, another agent with health care powers, a spouse, specified majorities of available adult parents and children or adult siblings, and an individual with an established relationship who can reliably convey the patient's wishes.

The statute also contains a limited attending-physician provision when no listed person is reasonably available. That provision includes confirmation by another physician unless delay would endanger life or seriously worsen the condition. It should not be described as a general license to disregard known instructions or an available authorized decision-maker.

A health care power of attorney is not a general litigation document

North Carolina's statutory health care power of attorney form allows a person to name an agent for periods when the person cannot make or communicate health care decisions. The form permits limits and instructions, including directions about withholding particular treatments, and explains how the agent's authority becomes effective and may be revoked while the person is competent.

The document should be read as executed. Confirm the named agent and alternates, activation provision, restrictions, revocation, later instruments, guardian order, and the exact decision. Authority to make health care decisions is different from authority to pursue a damages claim.

Natural-death decisions use a narrower statutory procedure

G.S. 90-322 addresses withholding or discontinuing life-prolonging measures in the absence of a declaration when the medical findings specified by the statute are met. It requires identified physician determinations and uses an ordered list of people whose concurrence may be sought.

That procedure does not govern every refusal of medication, diagnostic testing, surgery, rehabilitation, transfer, or routine treatment. Mental-health treatment, minors, communicable disease, emergency care, guardianship orders, and other settings can involve additional rules.

Build one decision record

  • Treatment or procedure proposed, purpose, expected benefit, usual and frequent recognized risks, alternatives, and the option of no treatment as documented
  • Patient's decision, words used, date, time, people present, questions, language or accessibility assistance, and any later change
  • Capacity assessment, clinical basis, person making it, decision addressed, and whether the issue was temporary or continuing
  • Advance directive, health care power of attorney, guardian order, surrogate relationship, scope, activation, restriction, revocation, and conflict
  • Emergency facts, treatment delivered or withheld, claimed authority, confirmation, communications, and outcome kept separate from later legal conclusions

The related guide to medical-malpractice informed consent in North Carolina explains the communication record, statutory presumption, recognized risks, alternatives, and causal decision. This page owns the narrower refusal, capacity, and substitute-decision task.

Rosensteel Fleishman Car Accident & Injury Lawyers provides information about consulting a Charlotte medical malpractice lawyer when disputed consent or refusal is alleged to have caused harm. The patient's capacity, document, decision-maker, treatment, urgency, evidence, and current law require individual review.

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