Without Surrogates: Who Should Give Medical Permission if the Patient Can’t?
Picture this: An elderly man is brought to the hospital by the paramedics who police found living in a large cardboard box under a freeway overpass. The patient is unconscious and a workup shows that he suffered a head injury with some brain hemorrhage. There is also some damage to a foot which may represent early gangrene. Because he is not breathing adequately on his own, in the emergency room a tube was passed down into his trachea toward his lungs and he was put on the respirator for ventilation. He has no identification found in his clothing and there were no people in the area where he was found that admitted knowing him. It is too early for the doctors to know what will be the patient’s clinical outcome and when, if ever, he will be alert enough and capable of understanding his condition or treatment to have the capacity to make medical decisions about himself.
The doctors have performed some emergency procedures including inserting IV lines and inserting the endotracheal tube but they are concerned regarding who will give them permission to perform some more routine procedures, though having some risks, such as performing a tracheotomy (surgically opening a hole in the neck and trachea) to facilitate the ventilation process and to insert a tube through the abdomen into the stomach for feeding rather than continuing intravenous feeding. Further, if the patient is to survive, it may be necessary to amputate the gangrenous foot.
The question the doctors ask the ethics committee is who is going to give permission for them to perform the tracheotomy, insert the tube for longer term feeding and to authorize the necessary amputation of the slowly progressing gangrenous foot. For patients who are unable to make their own decisions and there is no individual, representing the patient, to give permission for the surgeries. there have been no legal guidelines regularly followed in the United States to answer their question. One possibility is to request from the courts the appointment of a legal guardian that would make such decisions. That guardian would make this unfamiliar patient one of many dozens of patient cases on that person’s workload. The guardian may not have time to visit and follow the patient closely enough to make judgments which should be in the best interest of that particular patient. There also may be delays in providing a decision. Other possibilities which have been considered is for the attending doctor simply to decide for the patient alone or as has been a common practice for two physicians to agree that the procedure is necessary and should be performed. There are some suggestions that hospital ethics committees or a hospital “surrogate” committee should take the responsibility for making decisions and giving permission for patients in their hospital who have no family or legal surrogates. In all of these examples, the possible conflict of interest issue is present, even in the case of the court appointed guardian who may find that keeping the patient alive longer despite clinical futility is of personal financial value.
This issue regarding who should make medical decisions for patients without capacity to make their own decisions but also without friends, family or surrogates who know them is the issue all ethics committees have worried over and have been trying to come to a answer that would represent the best,most just and efficient decision making for such a patient.
I think that the public should help the ethics committees by providing their views of the issue. As a chairperson of a hospital ethics committee, I ask for your help. ..Maurice.
posted by Maurice Bernstein, M.D. @ 5:40:00 PM
9 comments
9 Comments:
Treat your neighbor as yourself.
Dr. Bernstein,
The hospital I work at, which shall remain nameless, experiences this problem on a daily basis. Quite frequently our doctors turn to 2 MD consent for urgent but non-emergent procedures. Our lack of policy or state law on this issues continually frustrates the medical personnel. Ultimately, what happens is the treatment/procedure is delayed until it becomes an emergency and then the medical team can proceed with the necessary action. The ethics committee is constantly confronted with this 'problem,' so we have developed the following process. It is only in rough draft form and has not been approved by anyone in the hospital, even some of the committee members. I am posting it to see what others think about it. I have included the wording of the document below.
"There is currently a chronic and unresolved problem unique to many of the patients served by (Hospital Name Omitted). Specifically, many of our patients are seriously or critically ill, they lack decision-making capacity, and they have no identified decision-maker. Currently there are dozens patients in the hospital in this situation. Yet, to deliver standard medical care, our physicians must make decisions and perform procedures and deliver care. To the extent that the care or procedure is an emergency, there is generally no problem, as the procedure is authorized under the (State Omitted) Emergency Consent law. However, frequently the situation is not truly an emergency, but rather one that could be expected to jeopardize the health of the person or one that could impair his/her faculties if not done. Current policy excludes using the emergency consent process when a procedure or care is only “urgent,” “medically necessary,” “vital,” or “convenient.”
The following guideline allows physicians to perform within the standard of care, to do procedures and administer care that is urgent, but not truly emergent. This process is recommended by the Medical Ethics Committee as one which facilitates appropriate care in such situations while at the same time providing a standard approach, appropriate documentation and tracking of such procedures.
GUIDELINES for authorization for non-emergency procedure, test or treatment in situations where the procedure or care is urgently needed AND where the patient lacks decision making capacity AND where there is no family or surrogate decision maker to authorize the procedure, test or treatment. Each of the bulleted items must be accomplished before the procedure, test or treatment is accomplished.
• Assure Social Services has done and documented that a diligent search for a family member or decision-maker has been conducted;
• Document in the chart the lack of decision-making capacity;
• Document in the chart the lack of family or a surrogate decision-maker;
• Document the reason for the care or procedure being recommended;
• Document the potential consequences of lack of treatment or of not performing each procedure;
• Document the potential benefits and complications of the treatment or procedure;
• Have two licensed physicians (including preferably at least one attending) sign this documentation (NOTE: this should not be done on a “consent form”);
• Call the _______ to log the non-emergency authorization into the tracking system. (We are not sure who the doctors should call)
• DO THE PROCEDURE, TEST OF TREATMENT.
Additionally: A tracking document of each incidence where “2 MD authorization” for non-emergency events is in place. Call ______ on EVERY OCCASION where this non-emergency authorization process is used.
Please recognize that if we follow this approach, this may mean that our physicians are doing things that are within standard of accepted medical care and are therefore “medically necessary” but not truly emergent. However, without such an approach, the physicians would have to curtail care in such a way as to potentially be non-beneficent and not in the patient’s best interest. We believe that without this approach, care would potentially be unethical."
What does everyone think?
I'm not "everyone" but this is what I personally think.
First, unless the physicians had personal communications with the patient prior to the patient developing the lack of capacity status and there are no other persons who had interacted with the patient previously, the matter of what the patient "would have wanted" if he was able to make a decision is truely unknown. Therefore, however a policy for resolution is written and which persons or groups make the final decision, that decision must include an estimate of what "the average patient under the same clinical situation would have wanted and decided."
The policy as written above documents clinical rationale and risks for the test, procedure or therapy but fails to include a statement as to what those who will make the decision have considered in concluding that the decision would represent one that the "average patient under the same clinical situation would have wanted and decided." In other words, what was the thinking by those finally making the decision that their decision would have been also accepted and made by the "average patient". In this way, the decision making process of those making the final decision would be expressed in the policy beyond the documentation of the capacity, lack of surrogates and clinical facts of the disease or results of the test, procedure or treatment. ..Maurice.
I'd suggest that only emergent procedures be performed; only minimal treatment provided along with pastoral care. The human body has emormous recuperative and self-healing powers. Sometimes doctors try to do too much.
Chaplains and social workers can find family members who can help make decisions down the road.
I enjoy reading your blog and refer people to it.
I agree that "Sometimes doctors try to do too much." and it is also true that "The human body has enormous recuperative and self-healing powers." BUT, often for the body to recuperate with its self-healing powers it may need to be stabilized from the burdens which are produced by the illness in order for the self-healing powers to begin to work and take effect. This stabilization, while not necessarily emergent, may require procedures or treatments which should be consented to in advance. Unfortunately, those working in hospital critical care situations are fully aware of patients under their care where chaplains and social workers have, with due diligence and literally hours of investigation have failed to find neither family nor others who know the patient sufficiently to be able to "speak for them". ..Maurice.
Do you foresee, with greater government regulation, that everyone will be required at some point (registering to vote, getting a driver's licence, etc.) to complete advance directives indicating their choices?
For those who end up with no friends, family or other surrogates found, it would be helpful for there to be a written document available, prepared when having capacity, to indicate the patient's general philosophy of how to be treated (so-called "living will"). Unfortunately such a document often is not specific for the problem at hand. However, all other patients should at least have a legal surrogate selected who is aware of the patient's philosophy and can be informed about the patient's current medical status and can speak for the patient when incapacitated. That act is the most important and maybe should be part of the government's universal health care plan requirements. ..Maurice.
I find it interesting that we require social work and chaplains to search the depths of the sea to find family members. In my experience, at a public institution that serves a large homeless population, surrogates are not around or don't exist. But, even if they find one, the likelihood that the surrogate has had a conversation with the incapacitated patient is low. It leaves us in a difficult predicament. Ultimately, decisions have to be made and usually the decision is to progressive with all aggressive measures. Part of the problem with the presumption of treatment is the lack of consideration of cost. As the economy descends in to the abyss, considerations of cost will have to factor into the decision equation.
The issue regarding the consideration of cost is at the outset a self-interest matter that affects the hospital itself, later all medical institutions and, of course, in the end the interest of society. This is what makes the selection of a decision for treatment difficult for the hospital because of the understandable caution regarding how the decision for this patient might be accepted by the public if the decision was made known to them. Would the public be thinking that the hospital was just trying to save their own money by withholding a treatment or that the decision to withhold was clinically appropriate and in the end in the public's best interest? ..Maurice.
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