Can Someone Else Consent to Your Surgery?
The Right to Care cards rest on a special power of attorney. Philippine law has never confirmed that consent to treatment can be delegated by agency at all — and no ordinance can settle it.
Second of two parts. Part One, "The Right to Care Ordinances: Who Decides When the Patient Cannot?", covered what the Right to Care ordinances require of hospitals and where they diverge.
Thirteen local governments have now enacted Right to Care ordinances requiring health facilities to recognize a designated health care agent — a partner, a caregiver, a trusted friend — when a patient can no longer decide for himself. Part One of this series set out what those ordinances require and where they contradict each other.
This part takes up the question underneath all of them, which nobody has asked in print: whether Philippine law permits a person to delegate consent to medical treatment in the first place.
Begin where the hospitals begin.
Ask almost any Philippine hospital who may consent for an incapacitated adult, and you will be given a hierarchy: spouse, then children, then parents, then siblings. Ask for the legal basis and the conversation stops.
No Philippine statute establishes an order of next of kin for medical consent. Not one.
What hospitals actually apply is a hierarchy assembled by analogy: the order of intestate succession, the order of liability for support under Article 199 of the Family Code, and Article 305 of the Civil Code, which governs the right to make funeral arrangements. These are real provisions and the reasoning from them is not frivolous. But every one of them was written for a different purpose — dividing an estate, allocating financial obligation, burying the dead. None is a consent statute. Republic Act No. 7170 does supply a next-of-kin hierarchy, but only for post-mortem organ donation.
The practice is therefore an inference, not a rule. Institutions must decide somehow, and this is how they have always decided. Some of the country's larger private hospitals have gone further, adopting formal surrogate decision-maker policies that construct a hierarchy of authorized decision-makers — patterned, again, on the Civil Code. These are careful documents produced by careful people. They are also, characteristically, silent on advance directives. The institution builds a ladder of relatives and never asks whether the patient might have named someone.
That silence is the gap the Right to Care ordinances have found.
What the Civil Code says about funerals
One place in our Civil Code takes a different view of the same tension. Article 305 assigns the right to make funeral arrangements according to the order of liability for support — but Article 307 provides that the funeral shall follow the expressed wishes of the deceased, and only in their absence do religious affiliation and then the Article 305 order govern.
The analogy should not be pressed hard. A funeral concerns a person with no remaining interests and no ongoing relationships of care; treatment concerns a living patient, a family that may be actively caring for him, and clinicians bound by independent duties. Article 307 does not decide the medical question.
What it establishes is narrower: our Civil Code is capable of subordinating a hierarchy of relatives to an individual's expressed wishes in an intimate personal matter, and has done so. Anyone arguing that Philippine law embodies a settled policy of kin primacy has to account for it. Whether the principle carries from burial to treatment is exactly the question no Philippine court has answered.
The prior question
Every Right to Care program in the country runs on the same instrument. Ilocos Sur defines the health care proxy in terms of it: a duly executed special power of attorney or similar legal instrument. The card is its evidence and its delivery mechanism. Remove the SPA and nothing remains but a laminate.
Which raises a question nobody has asked in print: is consent to medical treatment delegable by agency at all?
Start with what the Civil Code actually says about special powers of attorney. Article 1878 enumerates the acts for which one is required — compromising, waiving obligations, conveying property gratuitously, borrowing or lending money, binding the principal as guarantor, creating real rights over immovables, accepting or repudiating an inheritance, and other acts of strict dominion. The list is patrimonial from beginning to end. Nothing in it resembles consent to a surgical procedure. The instrument these ordinances rest on is not an Article 1878 power of attorney; it is a general agency under Article 1868 wearing that name.
From there, two threads run against it, and neither has been resolved by our courts.
The first is Article 1919(3), which provides that agency is extinguished by the death, civil interdiction, insanity, or insolvency of the principal. Read that against the instrument's purpose. The card exists to operate when the principal can no longer decide — yet the agency on which it rests may be treated as discharged by the very incapacity that calls it into use. Whether "insanity" reaches temporary clinical incapacity is arguable both ways. That it is arguable at all is the problem.
The second thread is more fundamental. Agency under Article 1868 is a contract by which one person binds himself to render service or do something in representation of another. Consent to the invasion of one's own body is plausibly an act personalísimo — so bound to the person that it cannot be delegated in the first place. If that is right, the proxy is not merely fragile at the moment of incapacity; it never conferred authority at all, and functions only as evidence of what the patient wanted.
Neither reading has been tested. The uncertainty itself is the finding: hospitals are being directed by ordinance to honor an instrument whose operative effect in the clinical setting Philippine law has never confirmed.
Why this is not a technicality
Every American jurisdiction confronted the identical agency rule at common law, which is why the United States had to invent the durable power of attorney — a creature of statute, expressly providing that the agent's authority survives the principal's incapacity. Without that statutory word the instrument failed exactly when it mattered. Many states went further and enacted default surrogate statutes for patients who designated no one.
Our drafters saw the problem. Quezon City provides that once the agent's authority has commenced, the proxy shall not expire while the principal lacks capacity. Ilocos Sur goes further, keeping the proxy effective for the duration of the incapacity notwithstanding the expiry of its stated validity — and explains, in the text itself, that the clause exists to prevent any lapse in authority during medical emergencies.
These are durability clauses, and they are the clearest illustration of the difficulty. What these councils attempted is exactly what a legislature must do and a local government cannot. Read charitably, they are drafting notes addressed to Congress.
There is further evidence, closer to home, that our own legislature shares the doubt. Republic Act No. 11036, the Mental Health Act of 2018, expressly creates a mechanism for designating a legal representative by notarized document, alongside a right to execute advance directives. If ordinary agency already permitted a person to appoint a medical decision-maker, those provisions would be surplusage. That Congress legislated them anyway, for one class of services, is the clearest available indication that it did not regard general agency law as sufficient.
No sangguniang panlungsod can close this gap. Agency, capacity, and family relations are civil law, and a general statute outranks a local measure. A council may direct its own facilities and regulate under the general welfare clause, but it cannot supply what the Civil Code has withheld. That is the strongest argument available for the bills now pending in Congress, and it is better made openly than left for a litigant to discover.
A framework we already have, and do not use
Having invoked RA 11036, it is worth staying with it, because the statute may reach further than institutions assume.
The reflex is to file it away as a mental health law confined to psychiatric patients. But its own title announces a wider scope: an act promoting and protecting the rights of persons utilizing psychiatric, neurologic and psychosocial health services. Its definitions follow suit, treating a mental health condition as a neurologic or psychiatric condition producing a clinically significant disturbance in cognition, emotional regulation, or behavior arising from genetic or acquired dysfunction in the processes underlying mental functioning.
Read against that gateway, a stroke, a traumatic brain injury, hypoxic or hepatic encephalopathy, and delirium are strong candidates — each is neurologic, and each produces exactly the cognitive disturbance the definition describes. Sedation for a planned procedure is not. The reading is narrower than "any incapacitated patient," then, but considerably wider than the psychiatric ward, and it would reach a meaningful share of intensive care admissions with no ordinance required.
No hospital in the country operates that way. Whether the argument survives contest is genuinely open, but the gap between what the statute may cover and what institutions practice is itself an exposure, and it does not improve with age.
The objection that deserves an answer
There is a case on the other side, and the advocacy literature has not engaged it.
Consider a twenty-two-year-old who designates a partner, or a trusted friend of the couple, as his agent. His parents and siblings are alive, present, and have carried his care his whole life. He is admitted unconscious. Under the Quezon City rule the agent's decisions take priority over theirs, full stop — a family that has done everything displaced by a notarized page, with no procedural check between the two.
That is what a pure proxy model does, and it is why our Civil Code's respect for expressed intent has never been unconditional: intent yields where law, morals, good customs, public order, and public policy intervene.
Signs of the difficulty appear in the drafting. Ilocos Sur permits revocation before two competent witnesses, one of whom should where practicable be a provider. Both ordinances provide that a principal who objects to a finding of incapacity prevails unless a court holds otherwise. Sound instincts, improvised without a framework to hang them on.
What is missing, and what only a statute can supply, is the architecture: execution formalities proportionate to the stakes, a duty to notify designated kin, a clear line between routine consent and the decisions that end lives, and a default rule for the overwhelming majority of patients who will never execute anything at all.
The harder question
Beneath the drafting problems lies something a statute alone will not settle.
The proxy model asserts that the individual, not the kinship group, owns the medical decision. Philippine practice has never worked that way. Families are told before patients are. Diagnoses are managed collectively. The prognosis reaches the eldest child before the mother.
It is easy to call that a defect and legislate against it. That would be a mistake. The familial model exists because in a country with thin institutional support, the family is the care system, and much of the time it works. What the Right to Care movement has identified is not that families are wrong, but that the law's definition of family is too narrow to describe who is actually doing the caring.
A regime designed against Filipino familism will be resisted at every nurses' station in the country. One designed to sit alongside it — recognizing chosen caregivers without erasing kin, and giving clinicians a clear rule for when the two conflict — has a chance of working. That is a bioethical question before it is a drafting question, and Congress will have to answer it whichever bill it passes.
The cards are a good instinct meeting an unfinished law. The instinct deserves to be honored. The law deserves to be finished.
Part One of this series, "The Right to Care Ordinances: Who Decides When the Patient Cannot?", covers what the Right to Care ordinances require of hospitals and how they differ from jurisdiction to jurisdiction.
This article is general information, not legal advice. For a specific situation, consult counsel.
