Sometimes their cooperation is not just ethically preferable, but actually necessary. Consider a patient who lacks relevant decision-making capacity and is refusing an organ transplant, and who also makes it clear that he will not take antirejection medications for the rest of his life. Even if we were authorized to do the transplant by the patient’s surrogate, we still could not proceed.

Surgery is just the first step of the transplantation process, and we cannot make a patient take medications for the rest of his life. The transplant procedure will thus ultimately be a failure because of the patient’s lack of cooperation, and performing such surgery would therefore be inappropriate.

Agreeing with patients on a plan of care is both ethically and medically valuable, regardless of their capacity to refuse care. Obtaining the patient’s agreement should precede assessing capacity, in principle, and often in fact.

This article was written on behalf of the ACEP Ethics Committee. Dr. Simon is Associate Clinical Professor of Clinical Medicine, Columbia University/New York–Presbyterian Emergency Medicine Residency and Scholar-in-Residence, Center for Bioethics, Columbia University.