Physicians Making Decisions for Unconscious Patients Without Family, Friends or Surrogates (4): Options

So what are the options available when the physician is faced with such a dilemma? An obvious one might be that the physician holds him/herself as the surrogate decision-maker. After all, in a number of these patients such as those elderly with no family who have been attended by the same physician in a nursing home for many years, the physician has had a chance to observe and talk with the patient and may have the best understanding of anyone with regard to the patient’s values and wishes. The physician also more clearly understands the science and rationale for therapy than someone else and finally the physician has a professional duty for providing only beneficence or “good” to his/her patient. On the other hand, it has been argued that the treating physician as surrogate may have no oversight by others regarding the decisions he/she is making in the patient’s name. This could be important if there is any conflict of interest, often financial. For example, the value to the physician or others to continue to treat or overtreat the patient in a fee-for-service environment or to undertreat under managed care. Finally, the physician could be reflecting his/her own values and not play the usual role of providing to the patient or family an objective evaluation of their decisions. In California, as I assume elsewhere, a treating physician cannot be named as a legal surrogate by the patient in an advance directive.

Another option would be court directed. In all states in the U.S., the court can be petitioned to appoint a conservator to make healthcare decisions for patients who are incompetent. Usually, the court appoints a public guardian when patient related individuals are absent. The problem with a public guardian is that the system is usually under-funded and they often have a huge load of clients about whom they know little and certainly cannot follow their clinical courses on a frequent basis. Because of inadequate training in medical decision-making and end-of-life care, many guardians when faced with a significant decision in starting or withholding treatment will resist and delay while consulting with a judge who has never seen the patient.

Finally, options that have been considered but still have not received uniform consensus in the bioethics or legal community of the United States involves the hospital ethics committees. One suggestion would be to assign the hospital ethics committee as surrogate decision maker for these unconscious patients without family or friends. An argument in favor would be that there are a multitude of voices on the committee with a potential variety of views including, hopefully, views from the community and that the patient’s “best interest” decision would be most reliable based on a consensus of this group. However, this role for an ethics committee would be very unusual since the committee’s function is for ethical and legal education, mitigation of conflicts and dispute resolution and not for making clinical decisions for patients. Many if not most of the committees would not accept a role of clinical decision-making.

So what is left? : A vague combination of the treating physician consulting with the hospital ethics committee before starting or withdrawing treatment. The ethics committee’s responsibility would be to assure that there are no family, friends or other potential surrogates which are present but unknown to the physician. The committee would then hear the clinical story and treatment issue from the physicians and other healthcare staff. Then the committee would, along with the physician, try to come to some consensus regarding the law, ethics, conflicts of interest and “patient’s best interest”. If all were in agreement then the committee would simply approve the decision and action by the physician. In issues involving standards of medical practice, appropriate senior medical staff or consultants may be called in. If there is no agreement between committee and physician, there is always, unfortunately, the court system. By this approach, though it is the treating physician who is making the final medical decision, the ethics committee is providing the oversight to ensure that the decision is legal and ethical. Any comments? ..Maurice.