Surrogate - a person whose authority to make health
care decisions for a patient is based on state statute, case law, or a decision
made by the medical team such as a physician or ethics committee.
Principals in making decisions for incompetent patients
1)
There must be respect and pro-active promoting
patient autonomy which will foster the well-being of the patient.
2)
The patient’s right to choose a course
of action remains after he or she loses decision making capacity – ie: the doctrine of informed consent provides the
same right of self determination that unpins the right of informed consent and
also applies to advance directives.
Standards to protect the well-being and autonomy of the
incompetent patient
1) The
documented advance directive
2) Substituted
judgment
3) The
best interest standard
Documented
Advance Directives
The
designation of a proxy through a durable power of attorney for health care and
the implementation of a living will are often effective ways to ensure the
appropriate implementation
of the
patient’s preferences with regard to health care decisions. Health
care directives that can be used in any circumstance in which a patient is
incompetent or incapacitated are more effective and desirable. To have the benefits of both a living will
and a durable power of attorney, patients may document a proxy designation and,
while competent, discuss with their proxy the preferences, values, or specific
instructions that should be considered when making treatment decisions.
Substituted
Judgment
When a
patient does not have documented treatment preferences or goals, decisions
concerning the incompetent patient’s health care should proceed by substituted
judgment. Substituted judgment asks that someone who knows the patient attempt
to make a decision in the manner that the patient would (if he or she were
capable of making the decision). Substituted
medical judgment by a surrogate decision maker may not be the best way to
determine the patient’s wishes as it requires great imaginative effort and requires a understanding of the patient’s values and preferences regarding medical
judgments. In respective research
studies it has been shown that there is often a low correlation between what
the patient would have chosen and what the substituted judgment actually did. One way of trying to discern what a patient
would say about treatment preferences is to consider the patient’s own life
story and to determine whether the particular medical option is a true “fit”
with the elements of the patient’s own life story. This allows for a more complete and more
accurate model – one in which the individual creates their own identity and in
which the narrative shows how they conceptualize themselves. Thus, the
physician and the surrogate have a prima facie moral
obligation to continue the story in a manner that is meaningful and consistent
with the patient’s self-conception.
Best
Interest Standard
When
there has been no reasonable basis for interpreting how the patient would have decided,
surrogate decision makers have based treatment decisions on predicted outcomes
that would most likely promote the patient’s well-being. This “best interest”
standard and is most often invoked for patients who have never possessed
decision making capacity or for those whom an appropriate surrogate cannot be
identified. Making a decision based on another’s best interests is less an act
of respecting the patient’s autonomy than it is an expression of beneficence. Factors that should be considered when
weighing the harms and benefits of various options include the pain and
suffering associated with treatment, the degree and potential for benefit, and
any impairments that may result from treatment.
In difficult cases, the best interest standard for decision making is
essentially a judgment about quality of life.
Who Should Be the Surrogate Decision Maker?
When a
medical decision needs to be made for an incompetent patient, physicians should
first inquire whether the patient had directly expressed wishes in a written
document, such as a living will or a durable power of attorney for health care.
If the patient has not left such a document, a surrogate should be appointed.
Many states have codified protocols for identifying surrogates in the absence
of any prior designation. In general, these statutes indicate that the family
of the patient should be responsible for medical decisions. “Family” is
generally understood to be the person’s closest biological or legally
recognized relations. Many states have established a hierarchy
for identifying a surrogate decision maker in the absence of a documented
advance directive. It is important to
recognize the extended concept of “family”, as
alternatives to marriage and the nuclear family unit are common and appropriate
decision makers in addition to spouses, children, parents, or siblings. When there is no person who is closely
associated with the patient, but there are persons who both care about and have
some relevant knowledge of the patient, these persons should participate in the
decision-making process, and in some situations, may be appropriate surrogates.
Resolving
Conflicts
Decisions
which profoundly affect a loved one who is incompetent to make medical
decisions can be difficult for a family due to the emotional distress resulting
from the situation. It is essential for physicians and other health care
providers to be sensitive to the range of emotional and psychological responses
of the family. Emotionality should not
be interpreted as irrationality and used to justify overriding the family’s
decision-making authority. In order for appropriate decision making by the
surrogate there needs to be effective communication between the physician and
the surrogate. Physicians should offer
relevant medical information and explanations as well as medical opinions based
on professional expertise. But the
interests of the physician and hospital often can intentionally
pit the interests of a particular family member against those of other family
members to advocate for what the physician
believes to be the most appropriate course of treatment. This is not appropriate behavior in the human
rights context of informed consent. Family
members may disagree when they do not understand the medical circumstances and
each others' view points. Those persons who have the best understanding of the
patient’s values will likely make a
decision that reflects what the patient would have decided.
Conclusion:
In the
case of injury or illness, the autonomy of the individual patient is ensured by
physicians respecting any advance directive that a patient holds. To further secure the autonomy of an
incompetent patient in the absence of an advance directive, a surrogate
decision maker should be identified. In this case, the decision maker should
adhere to a substituted judgment standard when there is evidence of what the
patient would have decided or, in the absence of such evidence, select the
course of treatment that most likely promotes the patient’s well-being.
Physicians should discuss with patients various options related to advance directives
and the benefits of having directives in place before the need for such
decisions arise.
