Case and Commentary
Jan 2005
Patients who cannot make their own medical decisions lack competence and/or decision-making capacity. Incompetent and incapacitated patients create distinct obstacles to respect for patient autonomy because it's not intuitively obvious how to respect the autonomy of an individual who is not capable of making a decision. Surrogate decision making is used to overcome or, at least, resolve this obstacle.
Opinion 8.081, "Surrogate Decision-Making"
If a patient lacks the capacity to make a health care decision, a reasonable effort should be made to identify a prior written expression of values such as a pertinent living will, or a health care proxy. When reasonable efforts have failed to uncover relevant documentation physicians should consult state law. Physicians should be aware that under special circumstances (for example, reproductive decisions for individuals who are incompetent), state laws may specify court intervention. In the absence of [applicable] state law...the patient's family, domestic partner, or close friend should become the surrogate decision maker.
When there is evidence of the patient's preferences and values, decisions concerning the patient's care should be made by substituted judgment. This entails considering the patient's advance directive (if any), the patient's views about life and how it should be lived, how the patient has constructed his or her identity or life story, and the patient's attitudes towards sickness, suffering, and certain medical procedures...
If there is no reasonable basis on which to interpret how a patient would have decided, the decision should be based on the best interests of the patient, or the outcome that would best promote the patient's well-being...
To protect the well-being and autonomy of the incompetent or incapacitated patient, three standards have been established in ethics and law to guide surrogate decisions: 1) the documented advance directive, 2) substituted judgment, and 3) the best interest standard.
An advance directive is a document that enables competent persons to exercise their rights to direct medical treatments in the event that they lose their decision-making capacity. There are two general categories of advance directives: 1) a living will, which indicates the types of treatment an individual wishes to receive or forgo under specified circumstances, and 2) a durable power of attorney for health care (or health care proxy appointment), which designates another person to make health care decisions on behalf of the patient.
When an incompetent or incapacitated patient does not have documented treatment preferences or goals and has not appointed a proxy, health care decisions should be determined by substituted judgment when possible, that is, attempting to decide as the patient would, if he or she had decision-making capacity.
Lacking a reasonable basis for interpreting how the patient would have decided, the "best interest" standard should be used. 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. In the more difficult cases, the best interest standard for decision making is essentially a judgment about quality of life. One rough way to establish the patient's best interests is to ask if the decision is one that most reasonable persons would choose for themselves.
Surrogate decision makers are entitled to the same respect and professional obligations as the decisionally capable patient. Obviously, this will include the features of informed consent (i.e., disclosure and recommendations), and it will also include confidentiality.
If surrogates are in doubt about using either decision-making standard—substituted judgment or best interest—if there is disagreement between surrogates, or if a surrogate appears to be making a self-interested rather than patient-interest decision, an ethics consultation may help. This action is supported by the Code in Opinion 8.081, "Surrogate Decision-Making": "When a physician believes that a decision is clearly not what the patient would have decided or could not be reasonably judged to be within the patient's best interests, the dispute should be referred to an ethics committee before resorting to the courts." The urgency in the present case, however, precludes this possibility.
