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| Surrogate Decision-Making | |
People Obviously Not Able to Make Decisions Sometimes patients are not able to make decisions about their medical care. This applies to newborns, young children, people in transient unconscious states, people in persistent vegetative states, and people with psychiatric or psychological conditions that disrupt ordered thought. In general, physicians are bound to respect patient wishes as a matter of respect for persons. However, physicians also owe a duty of beneficence (doing good) toward patients. It is certainly not in patients' best interests to be abandoned by medicine because they cannot make decisions for themselves. Both ethics and the law accept the idea that others may make decisions for patients who are unable to do so. For adults, this is generally referred to as ‘surrogate decision making.' For children, their mothers and fathers enjoy ‘parental privilege' when it comes to making medical decisions. People Obviously Not Able to Make DecisionsSometimes, the incapacity to make decisions is plainly clear to all involved. A patient might simply be unconscious and is not at all able to make decisions about surgery or medication. In these instances, the physician is obliged under the law to make a “reasonable inquiry” as to whether the patients have executed a power-of-attorney for health care. This legal document identifies someone who is entitled to make decisions on behalf of that patient. If there is no person authorized to make medical decisions or that person is unavailable, the physician may turn to others in order to make decisions about health care. Many states have described a process that physicians may use as a matter of law when looking for guidance on the medical treatment of incapacitated patients. In Illinois, physicians may turn to surrogate decision-makers without a specific court order and without judicial involvement. As provided for in Illinois statute, physicians may turn to the following persons as surrogate decision-makers, so long as they do so in the order indicated.
In other words, persons with power-of-attorney for health care have the same right as the patient to make decisions about health care. If a patient is unconscious and incapable of making medical decisions, and there is no one with power-of-attorney for health care, any person appointed by the courts as legal guardian is entitled to make those decisions. Alternatively, If there is no legal guardian, physicians may then to spouse to make decisions. If there is no spouse, an adult child of the patient may make medical decisions. If there are no adult children, parents of the patient may be consulted. And so on down the list. If multiple surrogate decision-makers at the same level are present – for example, three adult sons of the patient – the physician should try to help them achieve consensus about medical treatment. In the case of conflict among members of the same category, the majority decision is to prevail. Opposing parties – a single brother who disagrees with the choice the other two are making – is free to file for legal guardianship in order to contest the decision arrived at. Turning to the courts is, obviously, a complex and time-consuming process. In practice, physicians ought to work with families to try and resolve disagreements. Treatment decisions for the patient should not, however, be held hostage to families in dispute, and the law provides a way for physicians to proceed with the majority opinion. Advance DirectivesAdvance directives are those statements or documents that indicate the sort of health care people would want should they fall into incapacitated states. These statements may vary from general, offhand comments (“I wouldn't want to live if I had a lot of tubes sticking out of me.”) to written documents having a good amount of detail. Some advance directives take the form of “living wills,” in which patients offer specific details about what treatment is or is not acceptable to them. The central point of advance directives is that they are intended to medical decisions should a patient lose the capacity to express his or her wishes. Advance directives come into play only when a patient is unable to communicate his or her wishes. It is also true – that at the same time – surrogate decision-makers must be involved in medical decisions. Surrogate decision-makers can use advance directives as guides when coming to decisions about medical care for a particular patient. In other words, while the advance directive is a guide for medical decisions it only comes into play through a surrogate decision-maker. In some cases, surrogate decision-makers may find that the patient's circumstances have changed and is not formally bound by ethics or the law to follow through on the advance directive as written. For example, some patients may not wish to undergo mechanical ventilation. However, that treatment can serve as a bridge to recovery in some medical conditions. A surrogate decision-maker might therefore choose to disregard an advance directive that absolutely ruled out all mechanical ventilation. It should be remembered that most people in the United States have taken no steps to put in place a mechanism for guiding medical decisions should they become unable to make those decisions themselves. Even if patients do prepare some kind of advance directives, these are sometimes not available when needed, because it's not clear where the patient put them, for example. And it is also true that the advance directives may not be useful in all medical circumstances. For the vast majority of patients, therefore, the statutory approach to surrogate decision-making will prevail when patients are unable to make decisions for themselves. People with Uncertain Capacity to Make Medical DecisionsIn some cases, it may not be entirely clear whether someone is able to make medical decisions for him or herself. For example, a patient may have a brain disorder that limits – but does not entirely erode – his or her ability to make decisions. Or, to use another example, a patient may wax and wane in mental ability. On some days, the patient is lucid; on other days the patient is clearly disordered in thought and communication. People with mental dysfunction related to age-related diseases may also exhibit behavior that suggests that their mental capacities have deteriorated but not disappeared entirely. In any case, the point is that some patients lie in a gray area when it comes to their ability to make medical decisions. To the extent that patients are clearly unable to make decisions for themselves, physicians may turn to surrogate decision-makers as described above. For patients who exhibit some degree of capacity, physicians should try to involve them in decisions about their medical care to the extent possible. In some cases, it may be necessary to seek a legal judgment about the patient's capacity to make medical decisions. Formal determinations of incompetence are a matter for the courts. Properly speaking, a physician cannot declare a person incompetent in regard to the legal standing to make medical decisions. In court proceedings, however, physicians can, of course, advise the courts of their views on the cognitive abilities of the patient in question. In the vast majority of cases, courts are involved in making judgments about the ability of patients to consent only when there are serious disputes about the patient's abilities. This might occur when family members disagree or when physicians disagree with the choices a patient is making. When matters do come to the attention of the law, courts will look to various factors to guide them. The courts use the criteria below to assess decision-making ability. These are not strict pass-or-fail standards, but they do guide the courts in coming to their conclusions. Acknowledgment of Relevant Information. To demonstrate one's ability to make decisions, courts will look to see whether a patient understands his or her circumstances relative to diagnosis and treatment. Patients show evidence of this understanding by remembering information about their condition and showing that they understand their role in decisions to be made. Appreciating One's Circumstances. Patients must be able to acknowledge certain information such as what disorder they have, they must also understand how it is significant for themselves (for example, that it will limit their mobility or shorten their lives). Patients show that they appreciate their circumstances by answering questions about their illness, the need for treatment, and possible outcomes for them with and without treatment. The inability to formulate answers to these questions works against a presumption of competence. Logical Use of Information. Patients must also be able to show the courts that they can use information in meaningful ways. Do patients show evidence that they have recognizable reasons for their views and conclusions? Or do those views show evidence of being the consequence of delirium, dementia, or other disorder? It is not the specific view that is at issue in this determination but the process by which a person has the view he or she does. Communication of Choices. This is a universal condition of judging competence. The patient must show evidence of preferring one course of action over another. The identification of a choice is strengthened by evidence that the choice remains stable over time. A patient whose views are erratic and entirely fluid, without meaningful reason for change, are likely to be judged incompetent. While formal declarations of competence belong to courts to make, clinical judgments about patient's decision-making capacities are an everyday part of medical practice. In instances where decision-making capacity is in doubt, formal assessments should be sought from physicians familiar with the evaluation of mental status. If these show that a patient's mental status undercuts the ability to make meaningful choices, physicians may then turn to surrogate decision-makers. Emergency TreatmentMany otherwise competent individuals are unable to participate in the informed consent processes because they are temporarily incapacitated by injuries and illness. In these instances, physicians may treat patients without the involvement of a surrogate decision-maker so long as the treatment needs are urgent and so long as no surrogate is identified or available. For example, if an unconscious patient is taken to an emergency room after suffering head trauma in a car accident, physicians do not need to wait for consent in order to protect the patient against blood loss and other damage. In dire circumstances, there is no requirement to refrain from treatment until such time as surrogate consent is obtained. The entitlement to carry out emergency treatment prevails only so long as the patient is unable to participate meaningfully in decision-making about his or her condition. When, an adult regains consciousness he or she should be respected in his or her decision-making again. If an individual does not recover from unconsciousness or is cognitively impaired by injury or illness, then physicians may turn to surrogates as with any other impaired patient. Surrogate Decisions and Life-Sustaining TreatmentAll the mechanisms of surrogate decision-making discussed here permit the surrogates to decline life-sustaining treatment, if the judgment prevails that withdrawal of treatment is in the patient's best interest. Legal guardians may make this decision, as can any person authorized under the Illinois statute for surrogate decision-making. There is no obligation on the part of a surrogate decision-maker to ask for any degree of care that is incompatible with the patient's best interest. PrisonersAll the mechanisms of surrogate decision-making discussed here permit the surrogates to decline life-sustaining treatment, if the judgment prevails that withdrawal of treatment is in the patient's best interest. Legal guardians may make this decision, as can any person authorized under the Illinois statute for surrogate decision-making. There is no obligation on the part of a surrogate decision-maker to ask for any degree of care that is incompatible with the patient's best interest. Case for Discussion : Confused Patient ChoicesUntil very recently, Janda Williams, 84, lived at home with her husband. He suddenly died, however, leaving her depressed and at a lost in caring for their large house. Mrs. Williams has three daughters, all married and with grown children of their own. After their father's death, the daughters have taken turns spending time at their mother's house each evening, seeing that all was well before going home. One night when alone, however, Mrs. Williams drops a pain of boiling water, slips in the water on the floor, and suffers 3rd-degree burns to lower extremities, in addition to a broken femur. After admission to the hospital, she is in extreme pain and calls for her husband. Depending on the time of day and her medications, she is sometimes alert and sometimes disoriented. She claims not to recognize one of her daughters. But she also is aware of time and place, and knows that she has had a serious accident. Mrs. Williams' doctors want to approach her about the next step in her medical care, which might include skin grafts for the worst-burned sections of her skin. The sooner they proceed, the better.
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