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

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Sunday, December 19, 2004

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.



6 Comments:

At Sunday, December 19, 2004 6:53:00 PM, Anonymous Anonymous said...

I don't mean to be rude, but lets start with baby steps. Like full disclosure.

 
At Sunday, December 19, 2004 8:20:00 PM, Blogger Maurice Bernstein, M.D. said...

I agree. Full disclosure is a given. But after that what is the next step? ..Maurice.

 
At Monday, December 20, 2004 6:35:00 AM, Anonymous Anonymous said...

In the state of New York they use community based committees. These were established by the NY legislature several years ago.

My recollection is that they work very well. These committees are multi-disciplinary.

I would check with some people from NY on the MCW list. They would know more.

 
At Monday, December 20, 2004 2:24:00 PM, Blogger Mark Kuczewski, PhD said...

I have three points to suggest:

(1) For in-patient medical decisions, the idea of a physician making decisions with ethics committee oversight is not bad. It's certainly likely to be a good alternative to what are often cumbersome and expensive guardianship procedures.

(2) Ethics committees, if they are to fulfill this role adequately, would need to be better formalized. That is, some standardization of what appropriate membership is, e.g., what kind of community representation is necessary on the committee, what kind of training people on the committee should have, etc., would seem appropriate if they are to fulfill this kind of role.

(3) In cases where longer term decisions are at issue, e.g., placement in rehabilitation facility, long-term care, etc., it is important that the patient receive representation that can see the bigger picture. Thus, for such patients, formal appt of a guardian would seem necessary.

Mark
--
Mark G. Kuczewski, PhD
The Fr. Michael I. English, SJ, Professor
of Medical Ethics
Director, Neiswanger Institute
for Bioethics & Health Policy
Stritch School of Medicine
Loyola University Chicago
Maywood, IL 60153
mailto: mkuczew@lumc.edu
http://bioethics.lumc.edu

 
At Monday, December 20, 2004 2:41:00 PM, Blogger Maurice Bernstein, M.D. said...

In response to Anonymous, the use of an ?independent community committee is one option which I have not heard about previously and will certainly check. By the way, for our visitors, the MCW referred to is the Medical College of Wisconsin Bioethics Listserv, moderated by Arthur Derse.

 
At Monday, December 20, 2004 2:53:00 PM, Blogger Maurice Bernstein, M.D. said...

With regard to Mark's comments, I agree the composition and training of the hospital ethics committee is very important. One of the areas of particular importance is, as I have mentioned in a previous posting, the kind of community members on the committee. It is important, I think, that those selected represent some degree of a multi-racial and multi-cultural spectrum. Also, that there should be someone who is or can fairly represent the disabled. For these requirements to be successfully met would mean that more than one or two community members be selected. ..Maurice.

 

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